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Office of the Government of the Republic of Slovenia for Religious Communities

Bureau du Gouvernement de la République de Slovénie des communautés religieuses

LEGAL ASPECTS OF RELIGIOUSFREEDOM

LES ASPECTS JURIDIQUES DE LALIBERTÉ CONFESSIONNELLE

International Conference, 15–18 September 2008Conférence internationale, du 15 au 18 septembre 2008

Office of the Government of the Republic of Slovenia for Religious Communities

Bureau du Gouvernement de la République de Slovénie des communautés

religieuses

LEGAL ASPECTS OF RELIGIOUS

FREEDOM

LES ASPECTS JURIDIQUES DE LA LIBERTÉ CONFESSIONNELLE

International Conference, 15–18 September 2008 Conférence internationale, du 15 au 18 septembre 2008

Ljubljana 2008

CIP - Kataložni zapis o publikaciji Narodna in univerzitetna knjižnica, Ljubljana 342.731(063)(082)

LEGAL aspects of religious freedom : international conference, September 15 and 18, 2008 = Les aspects juridiques de la liberté confessionnelle : conférence international, 15-18 Septembre 2008 / [uredila Drago Čepar, Blaž Ivanc]. - Ljubljana : Office of the Government of the Republic of Slovenia for Religious Communities = Bureau du Gouvernement de la République de Slovénie des communautés religieuses, 2008 ISBN 978-961-92439-1-6 1. Vzp. stv. nasl. 2. Čepar, Drago, 1946- 240847616

Izdal Urad Vlade Republike Slovenije za verske skupnosti

Uredila dr. Drago Čepar, dr. Blaž Ivanc Grafično oblikovanje Urad Vlade Republike Slovenije za

verske skupnosti Tiskarna Birografika Bori d.o.o. Naklada 200 izvodov

Ljubljana, 2008

TABLE OF CONTENTS

I. PREFACE – PRÉFACE 9 – 10 II. OPENING LECTURE – CONFÉRENCE D'OUVERTURE

Legal Aspects of Religious Freedom, Gerhard Robbers 11 III. CONSTITUTIONAL JURISPRUDENCE IN THE AREA OF

FREEDOM OF RELIGION AND BELIEFS – LA JURISPRUDENCE CONSTITUTIONNELLE EN MATIÈRE DE LIBERTÉ DE RELIGION ET DE CROYANCE

1. BELGIUM

The Case Law of the Belgian Constitutional Court, Jan Theunis 25

2. BULGARIA La jurisprudence constitutionnelle en République de Bulgarie dans le domaine de la liberté de culte et des communautés religieuses, Snejana Nacheva 41

3. CYPRUS

Legal Aspects of Religious Freedoms, Myron Nicolatos 51

4. CZECH REPUBLIC Constitutional Guarantees of Freedom of Faith and Positions of Churches in the Czech Republic, Václav Mezřický 52

5. FINLAND

Status of Religious Communities, Matti Kotiranta 63

6. FRANCE La jurisprudence constitutionnelle en matière de libertè de religion et de croyance, Pierre Joxe 82

7. GERMANY

Constitutional Jurisprudence in the Area of Freedom of Religion and Beliefs, Elke Luise Barnstedt 89

8. HUNGARY

The Hungarian Constitutional Court's Rulings on Freedom of Religion, Péter Paczolay 123

9. IRELAND Constitutional Jurisprudence in the Area of Freedom of Relgion and Beliefs, Flannan Brennan 133

10. LATVIA

Freedom of Religion in the Decisions of the Constitutional Court of Latvia, Anita Kovaļevska 147

11. LITHUANIA

Legal Aspects of Religious Freedom, Ramutė Ruškytė 149

12. POLAND Legal Status of the Religious Communities in Poland, Marian Grzybowski 199

13. PORTUGAL

La jurisprudence constitutionnelle en matiere de liberte de religion et de croyance, António Duarte Silva and José de Sousa Brito 204

14. ROMANIA

Constitutional Jurisprudence in the Area of Freedom of Religion and Beliefs, Valentina Bărbăţeanu and Doina Suliman 229

15. SLOVENIA

The Protection of Data and Data on the Demography of Religious Affiliation, Miroslav Mozetič 243

16. SLOVENIA

The Case Law of the Slovenian Constitutional Court in the Area of Freedom of Religion and Beliefs, Blaž Ivanc 249

17. SWEDEN Constitutional Jurisprudence in the Area of Freedom of Religion and Beliefs, Lars Friedner 260

IV. ADMINISTRATIVE AND FINANCIAL MATTERS IN THE AREA OF RELIGIOUS FREEDOM AND RELIGIOUS COMMUNITIES – QUESTIONS ADMINISTRATIVES ET FINANCIÈRES DANS LE DOMAINE DE LA LIBERTÉ DE RELIGION ET DES COMMUNAUTÉS RELIGIEUSES

1. AUSTRIA

Religious Freedom and the Concept of Law and Religion in Austria, Richard Potz 271

2. BELGIUM

Administrative and Financial Matters – The Situation in Belgium, Marc Tysebaert 286

3. BULGARIA

Legal Framework of the Relation Between the State and Religious Denominations in Bulgaria Today, Ivan Zhelev Dimitrov 305

4. CZECH REPUBLIC

Religious Freedom and State in the Czech Republic, Jakub Kříž 310

5. ESTONIA

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Ringo Ringvee 320

6. FINLAND

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Matti Kotiranta 324

7. FRANCE

Questions administratives et financieres dans le domaine de la liberte de religion et des communautes religieuses, Pierre Joxe 333

8. GERMANY

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Bernd Küster 335

9. HUNGARY

Facts about the Relationship of State and Church in Hungary, András Csepregi 358

10. ITALY Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Maura Curcio 377

11. LATVIA

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities in Latvia, Jekaterina Macuka 384

12. LITHUANIA

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities: Case of Lithuania, Donatas Glodenis 392

13. POLAND

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Mariusz Radajewski 409

14. PORTUGAL

Portugal Towards Religious Freedom, Eduardo André Folque da Costa Ferreira 427

15. SLOVAK REPUBLIC

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Ján Juran 431

16. SLOVENIA

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Drago Čepar 438

17. SPAIN

State-Religion Relations in Spain: Legal and Constitutional Framework, Juan Ferreiro 458

18. SWEDEN

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Lars Friedner 470

19. UNITED KINGDOM

Administrative and Financial Matters in the Area of Religious Freedom and Religious Communities, Amanda van Eck Duymaer van Twist 476

V. APPENDIX – ANNEXE

Topics of the Conference “Legal Aspects of Religious Freedom« 499

Thèmes de la conférence “Les aspects juridiques de la liberté confessionnelle" 506

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I. PREFACE

This publication contains the proceedings of the international conference "Legal Aspects of Religious Freedom", which was organised by the Office of the Government of the Republic of Slovenia for Religious Communities and the Commission of the Government of the Republic of Slovenia for Solving Open Issues of Religious Communities between 15 and 18 September 2008 at Brdo – Ljubljana, Republic of Slovenia.

The proceedings volume reflects the structure of the conference, focused on two main topics: 1. Constitutional jurisprudence in the area of freedom of religion and beliefs and 2. Administrative and financial matters in the area of religious freedom and religious communities. The organisers' intention was, primarily, to review developments in constitutional jurisprudence in the area of freedom of religion and beliefs that have come about in European Union Member States since 1999 and, secondly, to collect information on the legislation adopted in these countries since 1990, their plans and the most recent data on churches and religious communities. Special attention has been placed on the legal dimensions of the dialogue between the European Union and churches and religious communities, as well as of interreligious dialogue. Most written reports were prepared by representatives of constitutional courts and governments of European Union Member States in their final edited form.

The organisers wish to express special thanks to Professor Gerhard Robbers (Univesität Trier) for his valuable contribution to the conference and to the distinguished academics who chaired the debate or prepared written reports for their countries: Professor Silvio Ferrari, Professor Rik Torfs, Professor Malcolm Evans, Professor Javier Martínez-Torrón, Professor Lars Friedner, Professor Lisbet Christoffersen, Professor Richard Potz and Professor Matti Kotiranta.

Ljubljana, September 2008 Blaž Ivanc, Drago Čepar Editors

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I. PRÉFACE

Cette publication présente le déroulement de la conférence internationale " Les aspects juridiques de la liberte confessionnelle” qui est organisée par le Bureau du Gouvernement de la République de Slovénie des communautés religieuses et la Commission du Gouvernement de la République de Slovénie chargée de résoudre les questions en suspens qui concernent les communautés religieuses. Cette conférence se tiendra à Brdo – Ljubljana, en Slovénie, du 15 au 18 septembre 2008.

Ce livret reflète la structure de la conférence, laquelle portera sur deux thèmes principaux: 1. La jurisprudence constitutionnelle en matière de liberté de religion et de croyance; 2. Les questions administratives et financières dans le domaine de la liberté de religion et des communautés religieuses. L’intention de l’organisateur est, tout d’abord, d’examiner l’évolution de la jurisprudence constitutionnelle dans le domaine de la liberté de religion et de croyance dans les États membres de l’Union européenne depuis 1999 puis, de recueillir des informations sur la législation adoptée dans ces pays depuis 1990, leurs plans et des données récentes sur les églises et les communautés religieuses. La dimension juridique du dialogue entre l’Union européenne et les églises et les communautés religieuses ainsi que le dialogue interreligieux bénéficient d’une attention particulière. La majorité des rapports écrits ont été préparés par des représentants des cours constitutionnelles et des gouvernements des États membres de l’Union européenne. Ils sont publiés dans leur forme finale.

Les organisateurs souhaitent exprimer leurs remerciements aux éminents universitaires qui ont contribué de manière significative à la conférence, et notamment à M. Gerhard Robbers (professeur à l’université de Trèves), ainsi qu’à M. Silvio Ferrari, M. Rik Torfs, M. Malcolm Evans, M. Javier Martínez-Torrón, M. Lars Friedner, Mme Lisbet Christoffersen, M. Richard Potz et M. Matti Kotiranta, qui ont présidé le débat ou préparé des rapports écrits pour leur pays. Ljubljana, septembre 2008 Blaž Ivanc, Drago Čepar Rédacteurs

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II. OPENING LECTURE – CONFÉRENCE D'OUVERTURE

LEGAL ASPECTS OF RELIGIOUS FREEDOM

Prof. Dr. Gerhard ROBBERS

University of Trier, Germany

I Religion matters again. Of course, religion always matters and has done so

throughout. Yet, many have said that secularisation of society will grow. Religion, was said, will be overcome. For long – at least in Europe -, religion did not matter in public opinion, was forgotten in the media. No, religion is on the rise again. Again, religion matters.

Freedom of religion: Is this a notion past? Hasn’t secular society overcome all religion? Isn’t at least Europe all secular? And perhaps: should it not be so? No – we see a renaissance of religion. People look for belief again. And people believe again.

Religion is on the rise again, fruitful and sometimes also frightening. New religious wars are being waged, and should not be.

Religion cannot be suppressed. All attempts to do so have failed. All attempts to reduce religion to a mere factor of society among other factors of society have failed. Failed have all attempts to make religion a purely personal matter. Religion is a public factor, forming public identity. Religion is part of the public sphere everywhere in Europe, everywhere in the world, because religion is a structure basic to human existence. He who forgets religion forfeits life.

Religion is more than a mere factor of society among other factors of society. Religious communities have a different function from organizations such as trade unions, football clubs or automobile associations. Religion is not a limited interest. Religion pervades all aspects of life. Those who are religious are religious whatever they do. Religious people very often would die for their beliefs - as did Father Kolbe in the Nazi extermination camp of Auschwitz when he saved the father and his family by going into death for him.

The new rise of religion in Europe and elsewhere will not only foster worship and culture. The new relevance of religion for people and society will also sharpen basic antagonisms. There is a growing challenge for ecumenical community, for inter-religious coexistence. Religion can lead to the best abilities of mankind and to the worst of war.


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II Religion matters in personal life. Religion matters in politics. Religion matters

in law. Let me turn to the courts. Religion matters again in the courts. What is the

specific function of the courts in this rise of religion? Their function is to apply the law. In doing this, the courts must also respect and support the key functions of the law: to preserve peace and to preserve freedom. Applying the law in disregard of these functions would compromise the very idea of the law. Any decisions of the courts must aim at preserving peace and freedom in the long run. This can be done only when courts have an understanding, perhaps a feeling, of the specific needs of specific circumstances.

It is significant that while the constitutional and supreme courts of the individual States have adjudicated about legal issues in religious matters for long, international and supranational courts have been reluctant. In fact, this signifies an underlying understanding that religious issues are closely related with individual, with regional, with national experiences. There are few other areas of law in which historic experience, emotional ties and basic convictions have as direct an influence as in the law on religion. The diversity of the law on religion in the European Union mirrors the diversity of the national cultures and identities.

On the other hand the different systems have common roots in the basic experiences of shared history. All the systems are based on the common background of Christianity. As can be said of European law in general, the law on religion particularly is rooted in Christianity. At the same time, however, the contribution made by Islam and Judaism to European culture must not be forgotten. Both religions also are important factors of today in most of the Member States of the European Union to which the law on religion must give adequate consideration. And finally there is a multitude of small religious communities, often linked with larger communities in other parts of the world, which forms a social factor in the structure of the law on religion.

In the European Union it is possible to differentiate between three basic types of civil ecclesiastical law systems. The first basic type is characterised by the existence of a State Church or predominant religion. In this system there are close links between State power and the existence of the Church. The systems of England, Denmark and Greece, Malta and Finland belong to this basic category. On the other hand there are systems founded on the idea of a strict separation of State and Church, for instance in France with the exception of the three eastern départements, and also in the Netherlands. There is to a great extent a legal separation in Ireland also. The third type features the basic separation of State and Church while simultaneously recognising a multitude of common tasks, in the fulfilment of which State and Church activity are linked: Belgium, Slovenia, Poland, Spain and Italy, Hungary, Austria, the Baltic States and Portugal belong to this group. In some of these states, agreements between state and religious


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communities play an important role, and therefore some speak of states with a covenantal system of state-church relations. However, the impact of such agreements must not be overestimated, important as they certainly are; it seems that they mirror a system of cooperation rather than they would establish it.

This classification according to legal and theoretical considerations is instantly overlaid and rendered questionable by social circumstances which suggest different groupings. The religious influence on the State in mainly Catholic Ireland is probably stronger and more direct than the wording of the constitutional provisions suggests. In the same way there would be a closer similarity in the social relevance of religion as between Greece, Spain and Italy than would be revealed in a comparison of Greece with Denmark or the United Kingdom.

Despite all the differences between the systems there is, however, a marked tendency of convergence. The different systems converge. In some countries the earlier anti-Church and anticlerical attitudes faded as the centuries passed and their legal consequences are being gradually reduced. Religious communities are given space for action and allowed greater freedom. Religion is acknowledged as an important element of social life. The conditions for meeting religious needs are supported by the State. Often this follows from a more comprehensive understanding of the function of fundamental and human rights, according to which it is the task of the community positively to create the preconditions for human rights, and human rights are no longer held to be mere protective rights against State infringement. Finally it is generally acknowledged that, given a comprehensive support by the State of social activities, the religious communities may not be excluded from such support and so discriminated against.

On the other hand there are clear moves towards the disestablishment of the established churches. This may be exemplified by the power of decision which is increasingly being granted the General Synod of the Church of England. Sweden has to a very large extent cut the close ties between the State and the Lutheran Church.

There also is a general tendency towards acknowledging the right of self-determination of religious communities. Even if in some systems still strongly influenced by the tradition of a State Church the power of making final decisions on some genuinely religious questions remains with State bodies, those who do not wish to be subject to such a decision appear to be completely free to form their own independent communities. Religious freedom as an individual right is generally and completely recognised. Nowhere are there legal provisions as to what the individual must or must not believe.


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III The European Court of Human Rights in Strasbourg has discovered religion.

For long it seemed that the European Court of Human Rights did everything to avoid dealing with religion. For decades it did not turn to Article 9 of the European Convention of Human Rights. There were cases enough raising questions of freedom of religion – the court tried to solve the issues by freedom of speech, freedom of assembly. Now, within the last couple of years, the European Court of Human Rights has issued a large number of decisions directly addressing religion. Religion matters for the European Court of Human Rights. The European Court of Human Rights matters for religion

The European Court of Human Rights has a very important function in overcoming old antagonisms. Its task is not the least to build bridges between cultures. It is a vital institution for the developing the dialogue of cultures into a cooperation of cultures. Its task is to contribute to the progress from words to deeds.

The European Court of Human Rights has always upheld pluralism. The Court must respect pluralism also among cultures and national identities. The Court must uphold pluralism also in regard of the traditional relationships of State and Religion relations within the various contracting States. There are few other areas of law in which historic experience, emotional ties and basic convictions have as direct an influence as in the law on religion in the various States. The diversity of the law on religion in Europe mirrors the diversity of the national cultures and identities.

Religious freedom will grow - only in a community with the Churches and other religious communities, only with regional experiences, traditions, contemporary and future needs, from within, not from without. Protection of Human Rights is not a one-sided protection of mere individual interests. Protection of Human Rights forms a together of individual persons and community, of rights and duties. This together cannot be modelled in abstracts, there are no pre-formulated concepts. This together of individual and community follows aims and needs, historical experiences and emotions, values and fears. It lives from fundamental feelings of the people concerned; in disregard of these traits there cannot be living justice.

A Church can rely on its right to freedom of religion1. Furthermore, a Church represents not the least the individual freedom of religion or belief of its members and followers. The Court has also held that the interference of a State in the organisation of a religious community can constitute an interference with the rights protected by Article 9 of the Convention2.

1 See Canea Catholic Church v. Greece, 16.12.1997, 25528/94, § 31. 2 See Kohn v. Federal Republic of Germany, 23.03.2000, 47021/99; Hasan and Chaush v. Bulgaria, 26.10.2000, 30985/96, § 81-82.


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Furthermore, the Court has observed that in principle the right to freedom of religion for the purposes of the Convention excludes assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed3.

The Court has repeatedly made very clear in its settled case law that, as enshrined in Article 9 of the Convention, freedom of thought, conscience, and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it4.

Identity of a country’s system is a key factor. The Court has strongly held this for the idea of secularism for the Turkish State. It must apply to other identities as well. The Court considers this notion of secularism to be consistent with the values underpinning the Convention. It finds that upholding that principle, which is undoubtedly one of the fundamental principles of the Turkish State which are in harmony with the rule of law and respect for human rights, may be considered necessary to protect the democratic system in Turkey5.

It is noteworthy that also the European Union has obligated itself to respect the plurality and the pluralism of Member States’ law on religion. This includes respect of church self-determination and specific loyalty obligations in employment relations6. Any State definition of these obligations would violate the

3 Moscow Branch of the Salvation Army v. Russia, judgment of 5 October 2006,application no. 72881/01, § 92; Metropolitan Church of Bessarabia and Others v. Moldova, judgment of 13 December 2001, Final, 27 March 2002, application no. 45701/99, § 117. 4 Metropolitan Church of Bessarabia and Others v. Moldova, judgment of 13 December 2001, Final, 27/03/2002, application no. 45701/99, § 114; Serif v. Greece, no. 38178/97, § 49, ECHR 1999-IX; Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, pp. 17-18, §§ 31 and 33; Hasan and Chaush v. Bulgaria, judgement of 26 October 2000, application no. 30985/96, § 60. 5 See Refah Partisi (the Welfare Party) and Others, cited above, § 93; Sahin v. Turke). 6 See Declaration No. 11 attached to the Final Act of the Treaty of Amsterdam [Official Journal C 340, 10/11/1997 P. 0133]; Art. 17 of the draft Treaty on the Functioning of the European Union [9.5.2008 EN Official Journal of the European Union C 115/55]; Art. 4 Council Directive 2000/78/EC of 27.11.2000 establishing a general framework for equal treatment in employment and occupation [Official Journal L 303, 02/12/2000 P. 0016 – 0022]; see also OSCE Principle 16.4 of the Vienna Concluding Document; Robbers (ed.), State and Church in the European Union, 2. ed., 2005; Warnink, (ed.), Legal Position of Churches and Church Autonomy, 2001; Robbers (ed.), Church Autonomy, 2001 - available at www.strasbourgconsortium.org/robbers_ autonomy.


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State’s obligation to remain neutral in matters of religion, and to refrain from evaluating or dictating religious doctrines and practices7.

The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus a centre piece of the protection which freedom of religion affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members8.

State supremacy would be the result if religious autonomy were not preserved. State neutrality would be compromised, as would be the undisturbed authenticity of religious life and practice. Separation of State and religious communities would become impossible.

In respecting the religious sphere and not claiming any competence whatsoever in these religious matters the religiously neutral State does not only respect the rights of the religious communities, but also upholds and conforms to its own identity as a State belonging to the secular sphere. The religiously neutral State would compromise its very identity if it were to interfere with these religious issues.

The first requirement for pluralism is to respect the different identities of religious communities. Since autonomous existence of religious communities is indispensable for pluralism in a democratic society, differences between religious communities must be tolerated and respected. This holds not only for issues of worship and ritual practice, but also for matters of religious beliefs about the way the religious community should be structured. The same holds true for differences between a specific religious community and general State law. Without respect for the differences of religious communities from general secular behaviour, pluralism would be an empty word, and would lack institutional grounding. Religious communities have the right to organize their affairs and to establish and enforce behavioural and organizational requirements that are different than patterns of State affairs.

States must have a broad margin of appreciation in balancing the rights and legitimate interests in matters of religion. In order to determine the scope of the margin of appreciation the need to maintain true religious pluralism, which is inherent in the concept of a democratic society, must be taken into account9. The weight of that need constitutes in itself a pressing social need and determines

7 Moscow Branch of the Salvation Army v. Russia, 5.10.2006, 72881/01, § 92; Metropolitan Church of Bessarabia and Others v. Moldova 13.12.2001, 45701/99, § 116; Manoussakis v. Greece, 26.9.1996, 18748/91, § 47. 8 Hasan and Chaush v. Bulgaria, cit. above, § 62; Metropolitan Church of Bessarabia and Others v. Moldova, cit. above, § 118. 9 See Sahin v. Turkey, 10.11.2005, 44774/98, § 110; Kokkinakis v. Greece, 25.05.1993, 14307/88, § 31, 47; Metropolitan Church of Bessarabia and Others v. Moldova, 27.03.2002, 45701/99, § 119.


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proportionality to the legitimate aim pursued10. When matters are at stake11 that relate to the system of the relationship between the State and the religious communities high sensitivity is required. These matters include questions of the very identity of the specific State. Any State must therefore be free to attribute high weight to the autonomy of religious communities in their relation to their clerics. It is not possible to discern throughout Europe a uniform conception of the significance of religion in society. The meaning or impact of the public expression of a religious belief will differ according to time and context. Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. Accordingly, the choice of the extent and form of such State regulations must essentially be left up to the State concerned, as it will depend on the domestic context12.

IV

Freedom of thought, conscience, and religion is one of the foundations of a

democratic society. This includes church autonomy as one of its foremost features. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. 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 freedom of religion affords. The right of religious communities to an autonomous existence is at the very heart of the guarantees of freedom of religion13. If religious autonomy were not preserved, State supremacy would be the outcome. State neutrality would be compromised, as would be the undisturbed authenticity of religious life and practice. Separation of State and religious communities would become impossible.

The first requirement for pluralism is to respect the different identities of religious communities. Since autonomous existence of religious communities is indispensable for pluralism in a democratic society, differences between religious communities must be tolerated and respected. This holds not only for issues of worship and ritual practice, but also for matters of religious beliefs about the way

10 See Wingrove v. The United Kingdom, 25.11.1996, 17419/90, § 53. 11 See Johansen v. Norway, 7.08.1996, 17383/90, § 64; Elsholz v. Federal Republic of Germany, 13.07.2000, 25735/94, § 49. 12 See Sahin v. Turkey, 10.11.2005, 44774/98, § 110. 13 Religionsgemeinschaft der Zeugen Jehovas v. Austria, 31.07.08, 40825/98, §§ 78-79; Hasan and Chaush v. Bulgaria, 26.10.2000, 30985/96, § 62; see also www.strasbourgconsortium.org/religious_autonomy_essays ).


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the religious community should be structured. The same holds true for differences between a specific religious community and general State law. Without respect for the differences of religious communities from general secular behaviour, pluralism would be an empty word, and would lack institutional grounding. Religious communities have the right to organize their affairs and to establish and enforce behavioural and organizational requirements that are different than patterns of State affairs.

The right to freedom of religion excludes assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed14. The convictions about violations of loyalty and worthiness obligations to the Church constitute a legitimate aspect of pluralism that the State is required to protect. It must therefore remain up to the Church to decide on the relevance of personal conduct of its employees and the impact of malconduct of one of its members and employees to its teaching and practice. This teaching of the Church must be respected by secular courts as a part of the very identity of the Church. This respect must be rendered even if secular law and secular convictions do not agree with such a belief, or hold that more lax standards should apply to society at large.

Religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one’s religion15. Similar reasons apply for employees of the religious community. This is a vital and practical reality, whether the employee representing the community holds a high position, or is a normal employee who nonetheless represents the Church and its values, albeit in a more humble context. Religious life within a religious community is not necessarily or exclusively dependent on the leading or visible people. Spiritual experiences can occur anywhere. Sometimes it may be the cook in the church kitchen, the gardener in the churchyard or anyone else within the church who impresses by his deeds and beliefs somebody else – or, on the other hand, who compromises the teaching of the church.

Respect for freedom of religion thus requires State courts to refrain from imposing gradations of loyalty as to the proximity to what would be understood as key functions of a church such as preaching or teaching. It is not within the State’s competence to decide on which functions in a religious community are central to its teaching and which are not. Secular courts are not free to substitute their

14 Moscow Branch of the Salvation Army v. Russia, cit. above, § 92; Metropolitan Church of Bessarabia and Others v. Moldova, cit. above, § 117. 15 Metropolitan Church of Bessarabia and Others v. Moldova, cit. above, § 118.


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judgment for the religious judgments of a community. Freedom of religion and church autonomy require that the decision-making about loyalty and worthiness obligations within the church are in principle left in their entirety to the relevant religious community itself. State authorities or other authorities outside the church must not force the church to introduce gradations of loyalty obligations into its internal structures and hierarchies. Otherwise, the religious community could feel forced to structure itself according to actual or presumed and uncertain expectations of non-religious authorities. A religious community should not be forced to guess when it is free to require its employees to follow Church teachings, and when - or with respect to what class of employees - it may be required to compromise those standards16. Uncertainty may create pressures which would deter religious groups from asserting the full scope of their religious freedom right.

Credibility is a key condition to successfully perform the work of religious communities. Credibility does not only depend on those who hold positions visible in the public or positions that may be defined as near to the teaching of the religious community. Each member of the Church and its employees must contribute to the trust and credibility of the religious community and must not prejudice this most valuable treasure. It must therefore remain within the free and autonomous decision of the Church as such what the loyalty and worthiness obligations of the Church are, and how Church discipline is maintained, particularly in the Church employment setting.

The need for autonomous decision about such loyalty obligations is – by the way - not uniquely linked to religious communities. There are many institutions that are in a comparable situation. Many institutions exist for the sake of a special ideal, a specific morale or a defined interest. Trade unions, political parties, newspapers and other media, and many other such institutions must be able to define their own philosophical identities. They must also be able to define and ensure the relevant conduct of their employees or members. This is generally accepted. It is a precondition for the proper functioning of a democratic society. This being the case for secular organizations with their limited interests, it must be all the more applicable to religious communities as a matter of religious freedom, since their ethos, their beliefs and their truth are the very essence of their existence. Religious communities must not be treated worse than trade unions, car manufacturers or football clubs.

One further issue: A certain immunity of religious communities from State court jurisdiction in matters of the status of their ministers is a core principle that follows from State religious neutrality17. A valid expression of that is the

16 Church of Scientology Moscow v. Russia, 5.04.2007, 18147/02, § 91; Moscow Branch of the Salvation Army v. Russia, cit. above, § 90. 17 see Dudová and Duda v. Czech Republic, 30.01.2001, 40224/98; Kohn v. Federal Republic of Germany, 23.03.2000, 47021/99; Tyler v. The United Kingdom, 05.04.1994, 21283/93; Le Compte, Van Leuven and De Meyere v. Belgium, 23.06.1981, 6878/75 and


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inadmissibility of legal remedies in these matters before a State court. No State court in a religiously neutral State can decide on religious matters. In questions of priesthood different principles apply from those that are valid for secular employment or civil service. These principles are matters of belief, religious conviction, trust, commonly shared beliefs, doctrinal decisions, revelation, charisma, personal relationship to God, convincing leadership, religious traditions, emotional ties, lifelong dedication, purity of message, theological truth, community cohesion, moral conduct, worthiness, and others. The core reference is worship and service to God and the divine. These principles are beyond secular courts’ judgment. Secular courts would violate State religious neutrality, separation of State and religions, and religious pluralism if they would interfere with these issues. They must be left completely to religious institutions. In questions of religion, secular courts could not even have sound judgment about fairness or arbitrariness. Many religions take ample precautions in order to satisfy the personal interests and needs of its ministers. They care about the economic and secular subsistence of any one of them. Responsibility for their ministers and priests is a core principle of their teaching and practices. These principles and practices are themselves based in religious teaching. They are much stronger and deeper and more compelling than any secular legal principle could be. These responsibilities form an important part in balancing all issues at stake. In as much as such responsibilities also apply in secular law State courts have to be careful not to isolate these responsibilities from their religious basis.

Secular courts are composed of judges irrespective of the judges’ religion. If a secular State court would decide on matters of status of religious ministers, religiously relevant issues could be decided by persons who do not belong to the religion in question. They could be decided by non-believers or by members of competing religions. The State would thus force religiously relevant decisions upon a religion which have been taken by outsiders.

In respecting the religious sphere and not claiming any competence whatsoever in these religious matters the religiously neutral State does not only respect the rights of the religious communities, but also upholds and conforms to its own identity as a State belonging to the secular sphere. The religiously neutral State would compromise its very identity if it were to interfere with these religious issues.

7238/75, § 47; W. v. The United Kingdom, 08.07.1987, 9749/82, § 73; Fayed v. The United Kingdom, 21.09.1994, 17101/90, § 56; Masson and Van Zon v. the Netherlands, 28.09.1995, 15346/89 and 15379/89, § 44; Balmer-Schafroth and Others v. Switzerland, 26.08.1997, 22110/93, § 32; Le Calvez v. France, 29.07.1998, 25554/94, § 56


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V Religious values are present throughout the constitutions of the European

States. Constitutions protect explicitly family and marriage. They guarantee the right to religious education. Constitutions make solidarity a principle. Subsidiarity with its roots in Christian teaching is a principle in many constitutions, today. And is not the right to asylum based in the right to church asylum – ancient religious right?

Human dignity is enshrined in the constitutions. Human dignity is one of the core principles and guarantees of the European Charter of Fundamental Rights. Human dignity is a key concept of Christianity. It is based in the idea of every human being being created an image of God. The inviolability of human dignity is a prescriptive norm to all European Union authorities. As a basic value it pervades through all European Union law as binding norm. Human dignity is inviolable. So says the European Charter of Fundamental Rights: human dignity in fact is inviolable, may there come what may, may the individual fail and do wrong the worst possible. Regardless of one’s achievements or failures, regardless of talents or disabilities of any performance: human dignity is inviolable. This expresses the fact of inviolability of human dignity based in the theology of Saint Paul.

The constitutional guarantee of equality that is enshrined throughout the constitution has a firm basis in the religious idea of equality of everyone before God. Freedom as a principle and as a right cannot be understood without the very idea of everybody’s freedom before God. “The truth will make thou free” is a word of immense power well into modern law. Freedom of religion is a basically religious idea found in Thomas of Aquino, teaching respect also for the erring conscience, found in the Second Vatican Council, found in the idea that true belief must be free belief; by force there is no belief, by force there is only obedience.

One must not forget all the errors of religion in history. Religious ideas and institutions throughout history have also fought and failed against these ideas of human dignity, human rights and human freedoms. However, through all the blood and suffering it were these religious ideas that were held and prevailed also against those who misunderstood, misinterpreted or misused their own religion. We have modern examples of this today.

Canon law has been tremendously important to hand over Roman legal structures into modern Europe. Canon law has developed norms to protect every individual. Audiatur et altera pars or the procedural principle of inquisition – that means to find the facts by the court itself – prevails in many legal systems until today. Data protection has a predecessor in the idea of the confessional secret. It is the rule of law that canon law prepares. The list of legal achievements by canon law as an avantgarde of modern legal thinking is long and can be prolonged immensely.

Religion has contributed decisive institutions to democracy. Synods can be seen as predecessors of parliaments. Hierarchical ecclesiastical structures give a forecast


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to the hierarchical structures of democratic rule. Again, one must not forget all the setbacks, all the opposition by religious believers and institutions. It is however the idea that counts. All these ideas live in contemporary religious teaching of the churches.

One of the key challenges today is the integration of the Muslim population in Europe. The law in Europe is to a large extent coined by Christian heritage. Muslims who immigrate must be given enough chances to find their way into this system – and the system itself has to be open to necessary change. It is up to the courts to interpret existing law so that Muslims can find an adequate place in this. To just give one example: Muslims usually do not associate in parishes or congregations with their representatives. They have other structures in their mosque associations. Courts can open the concept of religious communities to Muslim needs without compelling them to become like a Church. Much of this is respect for different traditions and respect for different theology. And foremost: We in Europe have to learn again how much Islam and Christendom have in common, how much Muslim and Christian culture share. In short: Europe has Aristotle via Arabia, Thomas of Aquino, the great Catholic theologian of the 13th century, would not be what he is without Averroes, the Muslim Ibn Rushd. And Avicenna, the Muslim Ibn Sinna, is at the very foundation of the controversy of universality, being a basic structure of occidental philosophy. Anyone who has eyes to see can see that very controversy in any contemporary textbook on contemporary constitutional law. Avicenna for centuries was one of the most important medical authorities in Western Europe. His text book on medical treatment was used as a foremost point of reference for medical doctors until the 18th century.

The contemporary challenges of religion in court is to uphold freedom of religion, individual and corporative, individual belief and autonomy of religions. It is more than that: the challenge is uphold the peace of religion. In doing this, due respect is needed for pluralism, for national and regional identities, while heading into a common future in an integrated Europe.

III. CONSTITUTIONAL JURISPRUDENCE IN THE AREA OF FREEDOM OF RELIGION AND BELIEFS - LA

JURISPRUDENCE CONSTITUTIONNELLE EN MATIÈRE DE LIBERTÉ DE RELIGION ET DE CROYANCE

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THE CASE LAW OF THE BELGIAN CONSTITUTIONAL COURT

Jan THEUNIS

Law Clerk at the Belgian Constitutional Court

I. The Belgian Constitutional Court: a Short Introduction

1. The Belgian Constitutional Court is a relatively young court. Its first judgment dates back to 1985. In the course of its twenty-three years of constitutional jurisdiction, the Court delivered about 2,500 judgments. Less than one percent is more or less directly connected with the subject of the conference.

2. At the beginning, the Court was only competent to supervise the observance of the constitutional division of powers between the State, the communities and the regions. As a matter of fact, Belgium had just been transformed into a federal state and it was necessary, as in every federal state, to have an arbitrator solving conflicts of competence between the different state entities. That explains why the official name of the Belgian Constitutional Court was originally “Court of Arbitration”.1

In 1989 the Court became competent to review compatibility with certain fundamental rights, more particularly the principle of equality, the prohibition of discrimination and the right to education. Only since 2003 does the Court have full jurisdiction to review compatibility with other constitutional rights and freedoms.

3. The jurisdiction to review whether a fundamental right has been violated has not been given to one single court of law. Every Belgian court is obliged to refrain from enforcing a (general or individual) act of the executive if it is contrary to a higher legal standard, such as the provisions of the Constitution and the European Convention on Human Rights (ECHR). Such an act of the executive may also be annulled by the Council of State.

A legislative act can only be reviewed and subsequently annulled by the Constitutional Court. As mentioned above, the Court is empowered to review legislative acts for compatibility with the constitutional rights and freedoms. The ordinary courts and the Council of State do not have the authority to review the constitutionality of statutes.

4. A case may be brought before the Constitutional Court through an action for annulment or a preliminary issue. Along with the action for annulment, the suspension of the challenged legislative act may be demanded.

An action for annulment may be instituted by any authority designated by statute or by any person who has a justifiable interest. An action for annulment must, as a rule, be brought within six months of the publication of the challenged

1 It has only recently been changed into “Constitutional Court” (2007).

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act. If the Court deems the application to be well-founded, it will annul all or part of the challenged provisions.

If in a dispute before a court of law one of the parties invokes the infringement by a legislative act of one of the provisions falling within the jurisdiction of the Constitutional Court, the court of law hearing the case must in principle refer a preliminary issue to the Constitutional Court. The referring court and any other court of law called upon to rule in the same case are bound by the Court’s judgment when adjudicating the case.

II. The Freedom of Religion in the Belgian Legal System

5. The protection of fundamental rights and freedoms in the Belgian legal

system is enshrined in Title II of the Constitution. Article 19 of the Constitution guarantees the freedom of worship and its public

practice: « Freedom of worship, its public practice and freedom to demonstrate one’s

opinions on all matters are guaranteed, but offences committed when this freedom is used may be punished. » Article 20 of the Constitution guarantees the so-called negative freedom of

religion:

« No one can be obliged to contribute in any way whatsoever to the acts and ceremonies of a religion or to observe its days of rest. » Article 21 of the Constitution guarantees the organisational autonomy of the

religions:2

« The State does not have the right to intervene either in the appointment or in the installation of ministers of any religion whatsoever or to forbid these ministers from corresponding with their superiors, from publishing the acts of these superiors, but, in this latter case, normal responsibilities as regards the press and publishing apply.

A civil wedding should always precede the blessing of the marriage, apart from the exceptions to be established by the law if needed. » 6. Article 21, first paragraph, of the Constitution expresses the mutual

independence of Church and State, although this separation is not absolute. Article 181 of the Constitution provides:

2 More particularly the first indent; for the second indent, see paragraph 20.

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« § 1. The State awards remuneration and pensions to religious leaders; those amounts required are included in the budget on an annual basis.

§ 2. The State awards remuneration and pensions to representatives of organizations recognized by the law as providing moral assistance according to a non-religious philosophical concept; those amounts required are included in the budget on an annual basis. » The payment of remuneration and pensions applies only to ministers of the

recognized religions, currently the Catholic, Protestant, Jewish, Anglican, Islamic and Orthodox religions. A legal recognition holds certain other advantages, such as the right to provide religious education in the State education system (Article 24, § 1, fourth indent, of the Constitution).

7. Article 24, § 1, of the Constitution guarantees the freedom of education. It provides in its third and fourth indents:

« The community organizes non-denominational education. This implies in

particular the respect of the philosophical, ideological or religious beliefs of parents and pupils.

Schools run by the public authorities offer, until the end of compulsory education, the choice between the teaching of one of the recognized religions and non-denominational ethics teaching. » Article 24, § 3, of the Constitution guarantees the right to education. It provides

in its second indent:

« All pupils of school age have the right to moral or religious education at the community’s expense. » 8. The Constitution contains no grounds on which fundamental rights can be

restricted, as for instance the ECHR does. The Constitution usually only requires that no preventive measures are imposed and that the other restrictions are laid down by or in accordance with the law.

The absence of grounds on which fundamental rights may be restricted does not mean that the legislature can do as it pleases. The Constitutional Court considers that where a provision of a treaty that is binding on Belgium is similar in scope to one or several provisions of the Constitution, the safeguards contained in those treaty provisions constitute an inseparable whole with the safeguards contained in the constitutional provisions in question. Consequently, when an infringement of a constitutional provision is adduced, the Court in its review will take into account provisions of international law that guarantee similar rights and freedoms.3

3 Constitutional Court, Judgment no. 136/2004, 22 July 2004, B.5.3-B.5.4.

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III. The Case Law of the Belgian Constitutional Court (1989-2003)

9. As already mentioned, the jurisdiction of the Constitutional Court to review compatibility with fundamental rights was, until 2003, restricted to Articles 10, 11 and 24 of the Constitution, which enshrine the principle of equality, the prohibition of discrimination and the right to education respectively. The Court, however, has always held the view that Articles 10 and 11 are general in scope and prohibit any form of discrimination, irrespective of its grounds: the constitutional principles of equality and non-discrimination apply to all rights and freedoms, including those that ensue from international treaties that are binding on Belgium. Consequently, the Court had been reviewing legislative acts for compatibility with the other rights and freedoms already before its jurisdiction was extended, namely indirectly through Articles 10 and 11 of the Constitution.

This means, for instance, that if the right to freedom of religion of a certain group of citizens is breached, this group is also discriminated against because the same right of other citizens has not been infringed. Inversely, the justification for interference in the right to freedom of religion applies outright as a justification for the unequal treatment of different categories of persons.

10. The conscientious objection of a physician. In a judgment of 19 December 1991, the Court ruled on an action for annulment of the Abortion Act. This Act does not prevent the physician who is consulted by a pregnant woman from helping her in a different way than by abortion, but it does oblige him, if he wishes to have no part in an act of abortion, to inform the pregnant woman thereof at the first visit. In this way, the legislator sought to respect the physician’s freedom of conscience, without infringing the right to medical assistance of the person who is in the circumstances defined by the law. In the opinion of the Court, the legislator may reasonably require physicians who have the intention of refusing to perform an abortion not to wait to say so. By doing so, the legislator has not discriminated against this category of physicians.4

11. Equilibrium in the appointment and promotion of public servants. In a judgment of 15 July 1993, the Court ruled on a system where public appointments are apportioned among the representative ideological and philosophical persuasions. According to the Court, such a system inevitably leads to a situation where public officials, despite their merits, may be discriminated against on account of their ideological or philosophical views. Furthermore, it holds the risk that persons may be discriminated against who make use of the right of every citizen not to pronounce his or her views in public, and disadvantages those who endorse a particular persuasion on certain issues while being more sympathetic to another persuasion on other issues. The Court recognizes that the legislator may legitimately secure certain balances, but points out that it infringes the proportionality principle by employing, in order to achieve that objective, a system

4 Constitutional Court, Judgment no. 39/91, 19 December 1991, 6.B.20.

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that obliges the public authorities to derogate from the equality principle on the grounds of personal beliefs.5 In other words, the equal right of appointment to a public office and the right to remain silent about one’s beliefs prevail over the equilibrium between the different persuasions in the public workforce.

12. Freedom of religion in education. The above-mentioned judgments are concerned with freedom of conscience and of belief.6 In the case-law of the Constitutional Court, as in the case-law of the European Court of Human Rights,7 freedom of religion is first addressed in the area of education.

The Constitutional Court infers from Article 24, § 1, second indent, of the Constitution and Article 2 of the First Additional Protocol to the ECHR that parents have the right to ensure for their children such education and teaching that is most in conformity with their own religious and philosophical convictions. In order to guarantee this freedom of choice, the community organizes neutral education that respects the philosophical, ideological or religious beliefs of parents and pupils (Article 24, § 1, third indent, of the Constitution) and subsidizes educational establishments that derive their identity from a particular religious, philosophical or educational persuasion.8

This freedom does not imply that parents and pupils have an unconditional right to enroll in a school of their choice. The establishments in the subsidized private education system may adopt an admission policy based on the characteristic features of the educational project which they are entitled to offer by virtue of Article 24, § 1, first indent, of the Constitution, and which may be inspired by a particular religious or philosophical concept. The establishments of the State education system, given their obligation of neutrality, do not have this policy discretion.9

The schools organized by the public authorities must also offer the choice between the teaching of one of the recognized religions and non-denominational moral teaching (Article 24, § 1, fourth indent, of the Constitution). This is a fundamental right which must not be made conditional upon the number of pupils enrolled.10 The possibility that enrolment in religious classes that have lower attendance figures (in this case Judaism) might arouse a sense of marginalization among parents and pupils is, in the Court’s view, the result of the choice they have

5 Constitutional Court, Judgment no. 65/93, 15 July 1993, B.5. See in the same sense: Judgment no. 86/93, 16 December 1993, B.5, Judgment no. 7/94, 20 January 1994, B.5, and Judgment no. 47/99, 20 April 1999, B.4. 6 Freedom of conscience and of belief is not explicitly guaranteed by the Belgian Constitution, but by the ECHR (Article 9). 7 European Court of Human Rights, 7 December 1976, Kjeldsen, Busk Madsen and Pedersen v. Denmark, § 52. 8 Constitutional Court, Judgment no. 110/98, 4 November 1998, B.3.2; Judgment no. 131/2003, 8 October 2003, B.5.1. 9 Constitutional Court, Judgment no. 110/98, 4 November 1998, B.5.3. 10 Constitutional Court, Judgment no. 90/99, 15 July 1999, B.6.1 and B.6.3.

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made in the name of freedom of religion and freedom of education that is recognized by the Constitution.11

13. Appointment of teachers of religion. Although Article 24 of the Constitution is frequently relied upon before the Court, the religion-related provisions of that article are in most cases addressed only indirectly. However, there is a judgment of 4 March 1993 which is of special significance in that the internal organizational freedom referred to in Article 21 of the Constitution is at issue as well.

A decree of the Flemish Community provides that teachers of religion are appointed by the organizing authority “on the recommendation of the competent authority of the religion in question”. By “religion” is meant the recognized religions.

An action for annulment was brought against this decree by certain organizing authorities of private subsidized primary schools of Protestant denomination. They claimed that this was an instance of undesired interference in church affairs by requiring the intervention of a “competent authority of the religion in question”. The pointed out that in Protestantism there is no structure that covers all denominations which would make it possible to designate a “competent authority of the religion in question”. In the view of the petitioning parties, the decree infringes Articles 10 and 11 of the Constitution, read in conjunction with Article 19 of the Constitution and with Article 9 of the European Convention on Human Rights, because the hierarchical structure of the Roman Catholic Church was taken as the basis for the decree, without the characteristics of other religions being sufficiently taken into account.

In a judgment of 4 March 1993, the Constitutional Court ruled first of all that subsidies for religious education may be reserved for establishments that teach one of the recognized religions. With respect to the contention that was brought forward, the Court decided that the right to subsidies for religious education may be made conditional upon the intervention of an authority independent of the government which guarantees the genuineness of that education. The religion in question alone has the right to decide which authority is competent to monitor that genuineness. According to the Court, the decree-giver achieved an acceptable balance between the ability to make the granting of salary subsidies for religious education subject to certain conditions, on the one hand, and the fundamental doctrinal and organizational autonomy of the religions on the other. The decree-giver was entitled to reasonably expect all religions whose education qualifies for salary subsidies to have at their disposal a minimum structure for the purposes of the appointment of an authority that may be deemed competent to intervene, more particularly in the recruitment of teachers of the religions in question.12

11 Constitutional Court, Judgment no. 42/99, 30 March 1999, B.6. 12 Constitutional Court, Judgment no. 18/93, 4 March 1993, B.3.5 and B.5.4.

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The internal organizational freedom enshrined in Article 1 of the Constitution therefore does not rule out that the State may expect a religion to designate a representative body which the State may call upon to address the civil-law implications of the existence of a religion. This right to limit the organizational freedom will be revisited later in a different context (paragraph 17).

14. Harmful sectarian organizations. In order to monitor the phenomenon of harmful sectarian organizations and their practices and to take action if necessary, the Act of 2 June 1998 established a Center for Information and Advice on harmful sectarian organizations.13 An action for annulment was brought by an anthroposophic non-profit organization and certain private petitioners.

Although the Center has been entrusted with a preventive mission in the fight against the phenomenon of harmful sectarian organizations in the form of investigation and the provision of information and advice on the subject, the Court found in its judgment of 21 March 2000 that the powers that were given to the Center, contrary to what the petitioning parties claim, in no way infringe the freedom of worship and public practice of that worship or the freedom to express one’s opinions on all matters, as guaranteed by Article 19 of the Constitution, nor the freedom of thought, conscience and religion or the freedom of expression enshrined in Articles 9 and 10 of the ECHR and in Articles 18 and 19 of the International Covenant on Civil and Political Rights (ICCPR), nor the freedom of education, guaranteed by Article 24 of the Constitution. The Court made a special point of recalling that the powers granted to the Center in no way authorize the latter to prohibit, as a matter of prevention, a philosophical or religious minority from expressing an opinion. The Center can only preventively inform the public about the activities of an organization, in order that the public may judge for itself, with full knowledge of the facts, the validity of opinions that may be dangerous but that are freely expressed by such an organization.14

15. Subsidizing of ideologically inspired sports clubs. In a judgment of 14 May 2003, the Court ruled on an action for annulment of a Flemish decree which regulates the recognition and subsidizing of sports clubs. The action was brought by a gymnastics club of Christian inspiration which adduced a breach of Articles 10 and 11 of the Constitution, read in conjunction with Article 9 of the ECHR, on account of the fact that they were no longer eligible for recognition and subsidies as a “single sport federation”.

The Court considered that the freedom of religion and belief enshrined in the Constitution and the international treaties cannot be interpreted in such a broad sense that it would oblige the State to give financial support to sports activities carried out from a particular religious or ideological persuasion. The review of the

13 What are meant are groups with an ideological or religious purpose, or which pose as such, and which in their organization or practices engage in harmful illegal activities, cause harm to an individual or to society, or infringe human dignity. 14 Constitutional Court, Judgment no. 31/2000, 21 March 2000, B.2.9 and B.4.2.

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challenged decree must take into account the specific features of sports law, which is based not only on domestic law, but is also traditionally embedded in an international, predominantly private-law structure, where rules have been put in place that are uniformly applicable to the international sporting scene as a whole. The requirement that the federation in question should be pluralistic and not ideologically inspired can be explained by the search for a compromise between, on the one hand, the fact that only one federation is allowed per country and, on the other hand, the concern that the sport in question should be open to all participants, irrespective of their ideology.

The fact that the decree-giver’s concern is reflected in the internal subsidy arrangement does not, in the Court’s view, constitute a breach of the principle of equality and non-discrimination. The assessment also takes into account the fact that the petitioning party is not totally excluded from government support. The challenged decree guarantees subsidies to the recreational sports federations as in the past and in accordance with the missions that have been entrusted to them. Under those circumstances, the subsidy conditions imposed by the decree-giver, inspired as they were by financial and practical considerations, are reasonably justified.15

IV. The Case Law of the Belgian Constitutional Court since Mid 2003

16. As mentioned above, the Court is empowered as of mid-2003 to review

compatibility with all constitutional rights and freedoms; in this review, the Court takes account of the analogous treaty provisions. In the autumn of 2005, the Court was asked twice in a short time to review compatibility with the provisions guaranteeing freedom of religion.

In both judgments the Court recalls, in line with the European Court of Human Rights, that freedom of religion also implies, among other things, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares.16 Religious

15 Constitutional Court, Judgment no. 60/2003, 14 May 2003, B.4.2-B.4.6. 16 Constitutional Court, Judgment no. 148/2005, 28 September 2005, B.5.2, and Judgment no. 152/2005, 5 October 2005, B.4, with reference to European Court of Human Rights, 26 October 2000, Hasan and Chaush v. Bulgaria, § 60, which reads as follows: « The Court recalls that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Serif v. Greece, no. 38178/97, § 49, ECHR 1999-IX, and the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, pp. 17-18, §§ 31 and 33). While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one's religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one's religion or belief may take, namely worship, teaching,

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communities traditionally exist in the form of organized structures. Participation in the life of the religious community is a manifestation of a person’s religious conviction, which is protected by the freedom of religion. Seen in the perspective of the freedom of association, freedom of religion implies that the religious community can function peacefully, free from arbitrary State intervention.17

In the first judgment (of 28 September 2005), the Court adds that the religious communities must be able to form and organize themselves freely, without the legislator in principle being authorized to intervene in this matter.18

In the second judgment (of 5 October 2005), the Court points out that the

autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of freedom of religion. It directly concerns not only the organization of the religious community as such, but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organizational life of the religious community not protected by Article 9 of the European Convention on Human Rights, all other aspects of the individual’s freedom of religion would become vulnerable. The freedom of worship enshrined in Article 21, first paragraph, of the Constitution recognizes that

practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see the Kalaç v. Turkey judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1209, § 27). » 17 Constitutional Court, Judgment no. 148/2005, 28 September 2005, B.5.2, and Judgment no. 152/2005, 5 October 2005, B.4, with reference to European Court of Human Rights, 26 October 2000, Hasan and Chaush v. Bulgaria, § 62, which reads as follows: « The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one's religion, protected by Article 9 of the Convention. 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. Seen in this perspective, the believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. 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 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual's freedom of religion would become vulnerable. » 18 Constitutional Court, Judgment no. 148/2005, 28 September 2005, B.5.2.

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same organizational autonomy of the religious communities. Each religion is free to establish its own organization.19

17. Election of the General Assembly of the Muslims of Belgium. In its judgment of 28 September 2005, the Court invokes the right to limit the organizational freedom of a religious community (see paragraph 13). In this connection, it relies upon Articles 24, § 1, last indent, and 181, § 1, of the Constitution, which clearly define the concept of recognized religion, and recalls that the legislator may reasonably require that recognized religions have a minimum structure with a view to the appointment of a representative body for the privileged contacts between the recognized religions and the public authorities. For such an intervention of the legislator to be acceptable, this intervention must not infringe the freedom of religion.

At issue was an Act of 20 July 2004 establishing a committee to oversee the renewal of the bodies of the Muslim religion. In doing so, the legislator sought to give concrete scope to the recognition of the Muslim religion and to enable it, like the other recognized religions, to enjoy the financial benefits attached to such a status.

In its investigation of a possible infringement of religious freedom, the Court found that the challenged act is not intended to attach conditions to the individual or collective profession of a faith or to limit the free organization of a religion. It simply establishes a committee entrusted with the organization of the election procedure leading to the appointment of a representative body for the contacts with the public authorities with a view to the implementation of Article 181 of the Constitution.

Taking into account the fact that the Muslim community has accepted the election as a valid method of appointment, and bearing in mind the fundamentally democratic value of such a procedure, the legislator cannot be criticized for requiring that the members of the General Assembly of the Muslims of Belgium be elected by the members of that community, or a fortiori that it surrounded that election with guarantees to ensure the regularity of the election. The establishment of a committee entrusted with the renewal of the bodies of the Muslim religion is precisely meant to guarantee the regularity of the election as such and of the electoral procedures involved. By its very composition, this committee offers adequate guarantees of neutrality and expertise. Its terms of reference are in fact limited to the adoption of measures that are strictly necessary for the regularity of the elections and that in addition must be inspired by the solutions which the Muslim community has taken into consideration. Consequently, the Court finds

19 Constitutional Court, Judgment no. 152/2005, 5 October 2005, B.4, with reference to European Court of Human Rights, 26 October 2000, Hasan and Chaush v. Bulgaria, § 62 (cited in previous footnote).

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that the challenged act does not constitute a disproportionate infringement of the right to freedom of religion.20

18. Age limit for members of the church councils. The freedom of religion and of worship does not prevent the State from adopting positive measures to enable the effective exercise of those freedoms. The care which the decree-giver evinces by the establishment of public-law institutions entrusted with the material aspects of the recognized religions and the management of the temporal goods21 can be deemed to contribute to the effective enjoyment of the right to freedom of worship.

This, however, does not mean that such a measure should not be seen as interference in the right of the recognized religions to regulate their activities autonomously. Although the State has a margin of appreciation in that matter, the Court needs to investigate whether such interference is justified. For this purpose, the Court in its judgment of 5 October 2005 adopts the review schedule of the European Court of Human Rights: for the interference to be compatible with the right to freedom of religion and freedom of worship, it is required that the measures are set out in a sufficiently accessible and precise arrangement, that they pursue a legitimate aim and that they are necessary in a democratic society, which implies that the interference must meet a pressing social need and that there must be a reasonable relationship of proportionality between the legitimate aim pursued and the limitation of those freedoms.

The introduction of an age limit of 75 years for members of church councils,22 which are the administrative bodies of the Roman Catholic and Anglican churches, guarantees the rejuvenation of those councils by requiring that sitting members who have reached the age limit be replaced. The resulting change in the composition of the church councils makes it possible to involve new members in the administration, which can contribute to the desired rationalization and modernization of the management of property by the church fabric committees, the deficits of which are borne by the State. The Court concludes that the measure does not represent an unjustified limitation of the right to freedom of religion and freedom of worship.

The measure, however, is found to be contrary to Articles 10 and 11 of the

Constitution, which prohibit discrimination on the grounds of age. By setting an age limit which is absolute, a whole category of elderly believers – a continuously growing group within the religious community – is excluded from having a say in

20 Constitutional Court, Judgment no. 148/2005, 28 September 2005, B.5.3-B.5.10. 21 These are the secural revenues of the church. 22 By Articles 10 and 126 of the Decree of the Flemish Community of 7 May 2004 on the material organization and functioning of the recognized religions.

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the management of the material goods. The measure is therefore disproportionate to the aim pursued by the decree-giver.23

19. Recognition and subsidizing of archives and documentation centers. Freedom of religion, belief and expression was also indirectly at issue in connection with the Flemish Decree of 27 June 1985 on the recognition and subsidizing of private-law archives and documentation centers. By archives and documentation center is meant an establishment which has been set up for the purpose of preserving and opening up for study and research the heritage of the ideological and philosophical movements in Flanders, more particularly the Catholic, Socialist, Liberal and Flemish Nationalist movements.

The Council of State put the question to the Court whether that restriction to four ideological and philosophical movements and consequently the exclusion of the free-thinking movement constitutes an infringement of Articles 10 and 11 of the Constitution, whether or not read in conjunction with Article 19 of the Constitution and with Articles 9 and 10 of the ECHR. Unlike in the previous judgment, the Court in its judgment of 1 February 2006 first investigates whether this is a case of discrimination.

The four designated movements are taken to correspond to the four main parties that were represented in the Flemish Parliament and that are assumed to be the most suitable “intermediary structures” for the preservation of the historical documentation. By deciding to subsidize the “Catholic” and “Flemish Nationalist” movements, however, the decree-giver chose philosophical movements – and two documentation centers – which do not correspond to movements that are represented as such in the Flemish Parliament. It is therefore not reasonably justified not to take into consideration the “free-thinking” movement on the grounds that this is thought to be sufficiently represented within the Socialist and Liberal movements. By not also choosing an archives center that falls under the “free-thinking” movement, the decree-giver has reserved a different treatment, without reasonable justification, for an ideological and philosophical movement which, for the purposes of the decree, is in the same situation as the other movements mentioned in the decree.24

In this judgment, the Court does not first investigate the possible infringement of the fundamental rights at issue, but immediately concludes that there has been a breach of Articles 10 and 11 of the Constitution, and consequently has no need to look further into whether or not the freedom of religion, belief and expression has been infringed.25

20. Opening up of marriage to persons of the same sex. The Act of 13 February 2003 regulates the civil marriage between persons of the same sex, thereby amending the provisions of the Civil Code that apply to marriage between

23 Constitutional Court, Judgment no. 152/2005, 5 October 2005, B.5-B.8. 24 Constitutional Court, Judgment no. 18/2006, 1 February 2006, B.6.3-B.6.5. 25 See European Court of Human Rights, 6 April 2004, Thlimmenos v. Greece, §53.

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persons of different sex. The petitioning parties claimed, among other things, an infringement of Articles 19 and 21, second paragraph, of the Constitution, read in conjunction with Article 9 of the ECHR and Article 18 of the ICCPR.

Article 21, second paragraph, of the Constitution stipulates that a civil wedding must always precede nuptial benediction, except in cases provided for by law should this be necessary. With this provision, as the Court recalls in its judgment of 20 October 2004, the Constitutional legislator in 1831 sought to put an end to the common practice at the time whereby some contented themselves with a church wedding in the firm belief that the consecration of a church wedding sufficed to engender civil-law effects. The second paragraph of Article 21 of the Constitution therefore does not regulate the conditions of the marriage, nor is it intended to, or does it result in, making the civil marriage conditional upon some religious formulation thereof. Contrary to what the petitioning parties claimed, the marriage concept enshrined in that Article should not be interpreted as being based on different-sex partners.26

The petitioning parties also adduced that religious citizens who wish to contract a religious marriage in accordance with the commandments and precepts of their religion first have to join an institution which is fundamentally opposed to their religious convictions and the precepts of their religion. In that connection, the Court finds that the disadvantages which the petitioning parties claim to experience do not result from the challenged act, but from Article 21, second paragraph, of the Constitution, and that the Court is not competent to rule on a restriction of the freedom of religion and worship which ensues from a choice that was made by the very author of the Constitution.27

21. The assignment of a task to the religious authorities. In a decree of the French-speaking Community, the religious authorities are given the task of drawing up a list of the temporary teachers of religion. In the action for annulment, the Orthodox Church in Belgium, among others, claimed an infringement of Articles 19 to 21 of the Constitution.

Without ruling on the question whether this is a case of interference in the exercise of the rights that are guaranteed by the Constitution, the Court finds that this interference is in any case not manifestly unreasonable, having regard to the limited extent of the task that has been entrusted to the Orthodox Church in Belgium. The case file does not show that keeping a list of around 60 candidates unreasonably adds to the workload of the head of the Orthodox Church in Belgium, who before the adoption of the challenged provision was already involved in the appointment of the teachers of religion through a consultative procedure.28

26 Constitutional Court, Judgment no. 159/2004, 20 October 2004, B.5.3. 27 Constitutional Court, Judgment no. 159/2004, 20 October 2004, B.7.2. 28 Constitutional Court, Judgment no. 110/2007, B.7.3-B.8.3.

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V. Two Recent Cases in Which no Judgment Has (Yet) Been Passed on the Merits

22. The prohibition against wearing a headdress in a court of law. The

Court recently had the opportunity to rule on the wearing of a headdress in court. The subject of the preliminary question was Article 759 of the Judicial Code, which obliges the audience to attend the hearings “with head uncovered, respectfully and in silence”.29 The referring court wished to learn from the Constitutional Court whether this provision infringes Articles 10 and 11 of the Constitution if it is interpreted in the sense that the audience and the accused are prohibited from attending the hearings if they are wearing a headdress, even if this headdress is an expression of their religious conviction.

The question compels us to weigh the right to due process against the right to profess one’s faith. In its judgment of 17 January 2008, however, the Court avoids answering the question. It considers that the answer evidently serves no useful purpose in settling the dispute which is pending before the referring court, since the defendant did not invoke religious grounds before the referring court when he refused to remove his headdress.30 We therefore need to wait for a new preliminary question before the Court can give a ruling on the merits.

23. Inability to escape the legal prohibition of discrimination. In an action still pending for annulment of the laws to combat discrimination, which are intended to give effect to the prohibition of discrimination – in pursuance of the European directives – in private legal relationships, an infringement is claimed of the freedom of conscience and religion on account of the fact that the challenged acts do not provide for an exception for persons who on grounds of conscience are unable to discharge the obligations that are imposed on them. According to the petitioning parties it is no longer possible for a Catholic priest, a rabbi or an imam to refuse to consecrate a church marriage between persons of the same sex, since this constitutes a case of direct discrimination on the grounds of sex, which is prohibited in connection with the provision of goods and services.

The defense of the Council of Ministers reads that the challenged acts do not apply to religious ceremonies, since they do not fall under “access to and offer of goods and services which are available to the public” or under “access to and participation in, as well as any other exercise of an economic, social, cultural or political activity which is open to the public”. Moreover, the laws in question are said not to apply in “strictly personal matters”, and the petitioning parties give much too broad an interpretation to religious freedom and in particular to conscientious objections, which do not give citizens license to shirk their obligations. In this connection, the Council of Ministers refers to an admissibility

29 See also Article 105 of the Special Act on the Constitutional Court. 30 Constitutional Court, Judgment no. 8/2008, 17 January 2008, B.4.1-B.4.2.

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decision of the European Court of Human Rights.31 In the view of the petitioning parties, the challenged acts do apply to religious ceremonies since they have both a social and a cultural dimension. Moreover, certain religious ceremonies at the same time represent a form of service which is available to the public (e.g. a wedding or a funeral). A ruling of the Court is expected in the autumn of 2008.

VI. Concluding Observations

24. Freedom of religion is firmly embedded in the Belgian Constitution:

positive freedom (Article 19), negative freedom (Article 20) and collective freedom (Article 21, first paragraph). Although freedom of conscience and belief is not expressly enshrined in the Constitution, there are some traces to be found in the case-law of the Constitutional Court (see paragraphs 10 and 11). Also the provisions on religious education (Article 24) have already engendered Constitutional case-law (see paragraphs 12 and 13).

25. As appears from the overview, the case-law of the European Court of Human Rights has a considerable influence on the case-law of the Constitutional Court (paragraphs 16-18). The explanation for this is obvious. The Constitutional Court makes the assumption that the fundamental rights under Title II of the Constitution and those enshrined in the international conventions are inextricably

31 European Court of Human Rights, 2 October 2001, Sajous and Pichon v. France, in which the Court found: « The Court would point out that the main sphere protected by Article 9 is that of personal convictions and religious beliefs, in other words what are sometimes referred to as matters of individual conscience. It also protects acts that are closely linked to these matters such as acts of worship or devotion forming part of the practice of a religion or a belief in a generally accepted form. The Court also reiterates that Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance (see the Kalaç v. Turkey judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1209, § 27, and Cha’are Shalom Ve Tsedek v. France [GC] no. 27417/95, 27 June 2000, ECHR 2000-VII, § 73). However, in safeguarding this personal domain, Article 9 of the Convention does not always guarantee the right to behave in public in a manner governed by that belief. The word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief. The Court notes that in the instant case the applicants, who are the joint owners of a pharmacy, submitted that their religious beliefs justified their refusal to sell contraceptive pills in their dispensary. It considers that, as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere. »

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linked (paragraph 8). It is therefore unavoidable that the provisions under Title II of the Constitution should be interpreted in conjunction with the provisions concerning similar fundamental rights in the international treaties. The European Convention on Human Rights and the case-law of the European Court of Human Rights play a central role in this regard.

26. The case-law of the European Court of Human Rights also imposes on the State the obligation to take positive measures to permit the effective exercise of religious freedom (paragraph 18). Certain positive obligations also stem directly from the Constitution. Although freedom of religion applies for all religions, the Constitution grants certain benefits solely to the recognized religions: payment of remuneration and pensions to the ministers of religion (Article 181) and the right to provide subsidized religious education in the State education system (Article 24, § 1, fourth indent, of the Constitution).

27. The granting of financial resources by the State, however, also implies supervision of those resources by the State. In this connection, the State may require that the recognized religions have a minimum structure, insofar as the organizational freedom of the religious communities is not disproportionately restricted (paragraphs 13 and 17). Apart from the funding imposed by the Constitution, there is no further obligation to provide financial support, more particularly of sporting events that are organized on the basis of a religious conviction (paragraph 15). In that case, the general case-law of the Constitutional Court applies according to which it is for the legislator to decide, taking into account imperative budgetary restrictions, whether and under what terms it is willing to subsidize certain initiatives or establishments with public funds, and the Court can only censure such a choice if it is manifestly unreasonable.32

28. The right to restrict the organizational freedom of a religious community obliges the Constitutional Court to strike a balance between the general interest of a quality guarantee in the use of public funds on the one hand and the individual or collective freedom of religion on the other. Generally speaking, the case-law of the Constitutional Court which we have discussed has this essential feature of constitutionality review: weighing the guarantee of effective enjoyment of religious freedom against the limitation of religious freedom in the public interest or to protect another fundamental right. The equal right of appointment to a public office and the right to remain silent about one’s beliefs, for example, prevail over the general interest of an equilibrium in the public workforce (paragraph 11), while the individual freedom to choose a school finds a legitimate restriction in the right of a school in the subsidized private education system to base its admission policy on the characteristic features of its educational project (paragraph 12). These are just a few examples from the case-law of the Belgian Constitutional Court in matters of religious freedom, which was the subject of this paper.

32 Constitutional Court, Judgment no. 42/2008, 4 March 2008, B.5.1.

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LA JURISPRUDENCE CONSTITUTIONNELLE EN RÉPUBLIQUE DE BULGARIE DANS LE DOMAINE DE

LA LIBERTÉ DE CULTE ET DES COMMUNAUTÉS RELIGIEUSES

Prof. Snejana NACHEVA, Docteur en droit

Juge à la Cour constitutionnelle de la République de Bulgarie

En guise d’introduction

La logique de l’unité des droits de l’homme et des libertés fondamentales n’implique pas de hiérarchie intérieure. Aussi, une importance fondamentale incombe-t-elle à l’harmonie intérieure entre les différents droits et libertés, d’une part et l’exercice de chacun d’eux de manière non susceptible de limiter ou de porter atteinte à l’exercice des autres droits de l’homme.

Étant donné que le standard juridique et la pratique de l’application des droits de l’homme et des libertés fondamentales, depuis plus de 50 ans, constituent une question d’ordre juridique international et supranational, le bon accord dans l’appréhension de ce standard et de cette pratique aux niveaux national, international et supranational est d’une nécessité absolue.

Dans cette perspective-là le grand problème de la conformité entre les droits et les libertés fondamentaux constitutionnellement protégés, du critère d’admissibilité des restrictions raisonnables que l’État ou les hautes parties contractantes doivent trouver et de la pratique dans l’application de ce critère par les organes juridictionnels, y compris les juridictions constitutionnelles, acquiert une importance exceptionnelle. Parfois c’est une question de la compatibilité de l’incompatible, c’est-à-dire de la tolérance dans leur existence commune, une fois que notre raison nous a amenés à la valorisation de ces réalités et à la proclamation de leur défense identique, quoique de manière différente.

Essai de présentation d’une jurisprudence constitutionnelle

Dans cet ensemble de problèmes difficiles la liberté de choix de culte, en sa qualité de differentia spessifica, a bénéficié d’une attention particulière de la part de la Cour Constitutionnelle de la République de Bulgarie qui a profité de toute occasion pour analyser ou interpréter son régime constitutionnel.

Pendant ses 17 ans d’existence la Cour Constitutionnelle (CC) a abordé cette problématique lorsque celle-ci a fait partie d’une autre problématique constitutionnelle traitée, lorsqu’elle a donné son interprétation contraignante de textes constitutionnels établissant et garantissant ce droit, ainsi que lorsqu’elle a statué sur la conformité constitutionnelle des dispositions de la Loi sur les cultes religieux.

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A titre d’illustration d’un prononcement fragmentaire sur ce sujet-là je pourrais citer la Décision № 2/98, A.C. № 15/97 (Journal officiel, n° 22/98) relative à une requête contestant la conformité à la Constitution de la République de Bulgarie de la Convention-cadre pour la protection des minorités nationales.

D’après les motifs de cette décision l’irrecevabilité constitutionnelle de la formation des partis sur des principes ethniques, raciaux ou religieux remplit une fonction gracieuse et vise à protéger l’État et la société des conséquences brutales qui pourraient résulter de l’évolution d’un processus de confrontation d’origine ethnique, raciale ou religieuse. C’est dans le même sens que va l’interdiction d’utiliser à des fins politiques les communautés et institutions religieuses, ainsi que les convictions religieuses.

Les irrecevabilités et interdictions énoncées, prévues par la Constitution, entrent bien dans l’esprit de l’introduction possible de restrictions du droit d’association dans le respect des valeurs universelles garanties telles que la sécurité nationale, l’ordre public, la santé publique et la morale, les droits et les libertés des citoyens.

Dans le cadre de la problématique abordée, la Décision № 5/92, A.C. № 11/92 (JO, n° 49/92), par laquelle la CC donne une interprétation contraignante des dispositions de l’arti.13, al.1 et 2 et de l’art.3, al.1 de la Constitution, mérite un intérêt particulier. La CC admet que la demande d’interprétation vise l’éclaircissement des relations entre les communautés et les institutions religieuses, d’une part et l’État, d’autre part, concernant l’exercice de la liberté de culte qui est constitutionnellement garantie. Or, la réponse à cette question implique l’éclaircissement de quelques groupes de problèmes dont la solution détermine le caractère du régime juridique applicable à l’exercice effectif de cette liberté. Ces quelques groupes de problèmes sont :

1. Le caractère de la liberté constitutionnelle de choix de culte et de convictions religieuses.

La liberté de conscience constitue une matière, qui, vu sa nature, ne permet aucune sanction juridique. L’attachement de l’homme à un culte dépend d’une conviction intime qui ne peut pas être sujette à une influence matérielle de la part de l’État. C’est le fondement de l’art. 13, al.1 et 2, de l’art. 37, al. 1 et de l’art. 6, al. 2 de la Constitution. La liberté de pensée et de convictions, ainsi que la liberté de culte, sont un droit fondamental personnel absolu, lié à l’âme de la personne humaine et représentant une valeur suprême. Cette caractéristique définit tout le régime juridique applicable à ce domaine.

Ce droit implique les possibilités juridiques suivantes, appelées dans la décision «compétence » :

- le droit de choisir librement son culte ; - la possibilité d’exercer librement son culte par la presse, la parole, la création

de communautés et d’associations religieuses fonctionnant dans la communauté ou dans la société.

2. La liberté d’association sur le principe religieux.

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La liberté d’association religieuse possède quelques traits caractéristiques qui la distinguent des autres types d’association. Cette association est formée sans égard à sa durée et découle de la motivation psychologique intime de ses adhérents. Ses objectifs et ses fonctions sont liés à l’exercice effectif de la liberté de culte.

3. La limite de la liberté de culte constitutionnellement garantie et le droit d’association en vue de l’exercice de celle-ci.

La liberté de culte est un droit fondamental personnel, absolu et inviolable de l’homme. Mais son exercice réel n’est pas illimité. Les limites de cet exercice sont fixées exhaustivement par la Constitution de sorte que leur élargissement, soit par la loi, soit par l’interprétation, soit inadmissible.

Aux termes de l’art.13, al. 4 les communautés et institutions religieuses, ainsi que les convictions religieuses ne peuvent être utilisées à des fins politiques, tandis qu’aux termes de l’art. 37, al. 2 la liberté de conscience et des cultes ne peut être dirigée contre la sécurité nationale, l’ordre public, la santé publique et la morale ou contre les droits et les libertés des autres citoyens. De pareilles restrictions sont aussi incluses dans les traités internationaux auxquels la Bulgarie est partie.

4. Le rôle de l’État dans le domaine de la liberté de culte et des communautés et institutions qui sont destinées à l’exercice de celle-ci.

C’est dans le même esprit que la CC doit définir, par l’interprétation, le rôle de l’État en établissant quelles sont ses obligations, ce qu’il peut ou ne peut faire dans le domaine de la liberté de culte et de son exercice.

L’État est dans l’obligation d’assurer à tout homme les conditions de l’exercice libre et sans entraves de la liberté de culte personnelle. En même temps il a l’obligation de contribuer à la promotion de la tolérance et du respect entre les croyants de tous bords, ainsi que entre les croyants et les non-croyants (les athées).

L’État ne peut, par le truchement de ses organes, s’ingérer ou administrer les activités liées à l’organisation interne des communautés et institutions religieuses, du fait de leur séparation de l’État. Sa non-ingérence dans les affaires intérieures de ces communautés et institutions, qui est constitutionnellement établie, fait aussi l’objet d’engagements internationaux en vertu des traités internationaux dont la Bulgarie est signataire, à savoir la Convention de sauvegarde des Droits de l’Homme et des Libertés fondamentales (CSDHLF) et le Pacte international relatif aux droits civils et politiques (PIDCP).

L’intervention de l’État se limite uniquement à la prise des mesures nécessaires dans les seuls cas des hypothèses visées à l’art.13, al. 4 et l’art. 37, al. 2 de la Constitution, c’est-à-dire en cas d’infraction aux limites de la liberté de culte constitutionnellement garantie.

Dans la logique de l’interprétation proposée la CC aboutit à la conclusion que certaines dispositions de la Loi sur les cultes religieux doivent être considérées abrogées et non applicables en raison de leur contrariété avec les dispositions constitutionnelles d’action directe de l’article 13 et de l’article 37 de la Constitution.

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Une attention particulière mérite d’être portée à la Décision № 12/03, A.C. № 3/03 (JO, n° 66/03) relative à la demande à l’établissement de l’inconstitutionnalité et de la non-conformité aux traités internationaux auxquels la Bulgarie est partie, de quelques dispositions de la Loi sur les cultes religieux (LCR).

Sont désignées comme parties intéressées tous les cultes religieux enregistrés, au nombre de 30 à présent, dont 13 n’ont pas déposé leur avis écrit dans le délai requis.

Par cette décision la CC rejette l’intégralité de la demande. Or, les motifs qui ont justifié le dispositif de la décision concernant les cinq dispositions contestées, méritent d’être reproduits en détail.

D’une part, ils apportent la preuve convaincante de l’harmonie établie dans le standard normatif et la pratique de son application entre la Constitution et les traités internationaux dans le domaine de la liberté de culte et des communautés religieuses.

D’autre part, une fois de plus ils révèlent la complexité des problèmes, relatifs à la défense juridique d’une valeur suprême dans sa spécificité différentielle /differentia spessifica/ que représente la liberté de choix de culte, de manière à ne pas porter atteinte à d’autres valeurs garanties par la loi et au rôle de l’État dans ce processus.

Il serait utile de passer en revue les principaux points de l’argumentation concernant les dispositions contestées faisant l’objet de la demande.

Concernant l’article 7, alinéa 4 de la LCR

Aux termes de la disposition contestée, les droits et les libertés des membres d’une communauté religieuse, ne peuvent pas être limités par des règlements, des rites et des cérémonies intérieurs à cette communauté ou institution. L’éclaircissement du point contesté – l’étendue des droits en question, dans le sens de – seuls les droits et libertés fondamentaux inaliénables ou tous les droits et libertés faisant partie du système de valeurs du citoyen, détermine la conclusion dans les considérations de la Cour sur l’interdiction en question : si et dans quelle mesure celle-ci représente une ingérence inadmissible de l’État dans les affaires intérieures des communautés religieuses autogérées.

La CC rejette la demande par rapport à cette disposition comme infondée pour les raisons suivantes :

Conformément à l’art. 4, al. 2 de la Constitution l’État a l’obligation constitutionnelle de garantir les droits des citoyens. La disposition contestée de l’art. 7, al. 2 de la LCR qui n’admet pas leur restriction est l’une des garanties juridiques qui assurent leur sauvegarde. La portée des droits et libertés constitutionnellement garantis ne s’étend qu’aux droits et libertés établis par la Constitution et par les traités internationaux auxquels la Bulgarie est partie.

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Concernant l’article 10, alinéa 1, phrases 3 et 4 de la LCR et § 2 des Dispositions transitoires et finales de la même Loi.

Dans cette partie la demande tend à l’établissement d’inconstitutionnalité de

trois dispositions légales différentes en raison de leur prétendue contrariété avec l’art. 6, al. 2; l’art. 13, al. 2 et art. 37 de la Loi fondamentale, ainsi que leur non-conformité à l’article 9 de la CSDHLF. Les principaux points de l’argumentation de la demande sont organisés en trois groupes :

1. L’inégalité d’une religion, le culte orthodoxe, par rapport à toutes les autres religions ; 2. La loi reproduit des textes des Statuts et de la doctrine de l’Église orthodoxe bulgare, ce qui entrave l’évolution de sa doctrine religieuse et de son

application par l’ingérence constitutionnellement inadmissible de l’État dans les affaires organisationnelles de cette religion ;

3. Le statut de personne morale, accordé ex lege à l’Église orthodoxe bulgare, est contraire à l’interdiction constitutionnelle, relative à la discrimination fondée sur un privilège, attribué sur le principe religieux.

A la suite des considérations de la Cour si et dans quelle mesure les dispositions contestées sont inconstitutionnelles et non-conformes aux traités internationaux mentionnés, la demande a été rejetée, car lors du vote, la majorité requise de 7 voix pour lui faire droit n’a pas été atteinte.

Vu l’absence de motifs communs, les deux propositions, énoncées au cours des délibérations, sont exposées séparément.

Le principe de départ des considérations de 5 juges constitutionnels est l’esprit général de la loi et l’objectif des dispositions de celle-ci, interprétées dans leur intégrité systématique, confrontées à l’esprit de la réglementation constitutionnelle et au sens des différentes normes constitutionnelles, relatives à la matière traitée.

Dans ce cas-là le standard constitutionnel de la réglementation auquel le législateur ne peut pas déroger, se fonde sur des principes directeurs tels que la tolérance, proclamée dans le préambule, en l’art. 13, al. 1 et l’art. 37, al. 1 de la Constitution, la séparation des communautés et institutions religieuses de l’État et l’inadmissibilité de l’ingérence et de l’administration de la part de l’État des activités liées à l’organisation interne des communautés et institutions religieuses.

Lors des délibérations visant à trancher la question de l’ingérence de l’État par le truchement d’une réglementation légale, non conforme à ces principes-là, sont énoncés les arguments suivants :

1. Conformément à l’art. 13, al. 3 de la Constitution «La religion traditionnelle en République de Bulgarie est le culte orthodoxe». Cette approche constitutionnelle – le principe de la reconnaissance de l’existence et du rôle de la religion prédominante dans un pays donné est adopté par plusieurs états européens dotés de systèmes démocratiques établis. On peut citer en exemple des états – membres du conseil de l’Europe tels que le Danemark /art. 4 de la Constitution/, la Norvège / & 2 de la Constitution/, la Suède /& 4 de la Loi de succession au trône /, l’Italie /l’art.

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8 de la Constitution/. Une pareille appréciation portée sur l’église anglicane est incluse dans la Constitution non écrite de la Grande Bretagne. La constatation d’un culte prédominant au niveau constitutionnel entre bien dans l’esprit de la tradition constitutionnelle européenne moderne. En outre, on observe, en dehors de la constatation, un statut constitutionnel privilégié, qui implique l’obligation de l’État de soutenir le culte prédominant.

La Constitution bulgare est beaucoup plus laconique. Elle ne fait qu’établir une constatation. Celle-ci trouve sa réplique dans la LCR où sont fixés les signes identificatoires de la religion traditionnelle et de l’Église orthodoxe bulgare auxquels elle s’est identifiée, par l’intermédiaire de la reproduction d’un texte de ses Statuts ;

2. Il s’en suit la question logique : dans quelle mesure la reproduction de questions d’ordre dogmatique, étudiées par le droit canonique, constitue une ingérence inadmissible de l’État dans les activités liées à l’organisation interne de l’Église orthodoxe bulgare? Du point de vue de la technicité juridique le législateur laïque reproduit littéralement un texte des Statuts de l’Église orthodoxe bulgare, conçu de manière autonome et unilatérale par celle-ci, sans pour autant participer à l’établissement de nouvelles règles imposées à cette Église. Les caractéristiques spécifiant l’Église orthodoxe sont d’ordre canonique et établi, modifiables uniquement par le Concile œcuménique. Ces caractéristiques-là ne relèvent pas du statut juridique, mais s’avèrent des principes dogmatiques définissant le culte traditionnel. Cette reproduction-là n’est pas susceptible d’être traitée d’ingérence inadmissible de l’État dans les activités liées à l’organisation interne de cette Église.

3. Le point contesté suivant est celui de la personnalité juridique des communautés religieuses. Aux termes de l’art. 10, al. 2 de la LCR « L’Église orthodoxe bulgare est une personne morale » et aux termes de l’article 14 de ladite loi « Les communautés religieuses peuvent acquérir le statut de personne morale dans les conditions et suivant les modalités de la loi »

L’exercice libre du culte par la liberté d’association est garanti par la Constitution et la loi. Tout homme peut exercer son culte choisi par la formation ou la participation à une communauté religieuse. L’obligation d’enregistrement n’y est pas applicable. L’enregistrement est une possibilité prévue par la loi qui permet à la communauté religieuse d’acquérir le statut de personne morale. Celui-là ne concerne pas la liberté de culte qui peut s’exercer au sein des communautés enregistrées ou non-enregistrées.

Au cas où une communauté religieuse voudrait se constituer et fonctionner comme un sujet de droit en soi, agir en son propre nom et pour son propre compte en entretenant des rapports juridiques avec des tiers, y compris avec l’État, elle pourrait procéder à l’enregistrement mentionné, tout en respectant l’ordre juridique commun.

Dans ce sens l’enregistrement est une exigence qui garantit la sécurité juridique à l’égard de tout sujet de droit. Par l’enregistrement celui-ci acquiert le statut de

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personnalité juridique qui est apte à conclure des contrats, à s’approprier des biens, à assumer la responsabilité juridique.

Seul l’État, par son organe législatif, a la capacité de définir les modalités de l’acquisition du statut de personne morale par une communauté. L’État n’est pas soumis à une interdiction constitutionnelle, relative à la reconnaissance du statut de personne morale, octroyé à une communauté.

Dans le cas concret, c’est l’Église orthodoxe bulgare. Celle-ci bénéficie d’un régime différent, concernant l’acquisition de la qualité de personnalité juridique, qui est constitutionnellement admissible. Cette dernière est fondée sur la reconnaissance du statut de religion traditionnelle dont jouit le culte orthodoxe. Le fait d’attribuer la personnalité juridique à l’Église orthodoxe bulgare, qui a acquis plus tard une reconnaissance internationale, date de 1870 et est accordé par un firman du sultan, fondé sur le Khatt-i humayun de 1856. Cette constitution précède la période de la restauration de l’État bulgare par le Troisième État bulgare. La Loi des cultes religieux de 2002 retrouve une communauté religieuse organisée et en activité, vieille de 130 ans d’existence et dotée d’un patrimoine. A la date de l’adoption de la loi l’Église orthodoxe bulgare jouit de la qualité de personne morale, constatée et reconnue formellement par la loi. Celle-ci a son fondement constitutionnel pour l’application d’une approche différente à l’égard des autres cultes. Ces derniers sont soumis à l’enregistrement, réglé par la Constitution. Là aussi, la différence dans l’approche est compréhensible. Les cultes principaux en activité qui gardent leur qualité de personne morale sont soumis à une nouvelle procédure d’enregistrement d’office (ex officio), prévue dans la loi. Ceci leur assure un statut très proche et même identique au statut de l’Église orthodoxe bulgare.

Le reste des cultes qui n’ont pas fait l’objet d’enregistrement sont soumis au régime prévu par la loi. L’enregistrement introduit des exigences minimales qui assurent la sécurité juridique à l’égard de cultes religieux, inconnus pour la Bulgarie, dont la composition assez variable des organes de gestion entrave leur reconnaissance en tant que personnalités juridiques.

Les considérations des 6 juges constitutionnels, réunis autour du bien-fondé de la demande, s’appuient sur les arguments suivants :

1. La liberté des cultes et la séparation des institutions religieuses de l’État, proclamées par l’art. 13, al. 1 et 2 de la Constitution, sont violées par la reproduction par la loi de décisions canoniques, relatives à des problèmes d’ordre organisationnel, régis par des actes émanant des institutions religieuses autonomes, tels que les Statuts de l’Église orthodoxe bulgare. Ces considérations vont dans la logique de la Décision № 5/92, A.C. № 11/92 de la CC, ainsi que de la jurisprudence, citée ad hoc, de la Cour européenne des Droits de l’Homme. Selon cette dernière, l’État ne doit pas intervenir ou trancher en cas de conflit entre des communautés et institutions religieuses, mais inciter à la tolérance entre les parties engagées dans le conflit.

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Les statuts sont un acte du culte. L’existence d’une réglementation légale de questions, régies par les statuts, rend inadmissible toute modification apportée à ceux-ci, car elle tendrait à une non-conformité à la loi. Ainsi, l’ingérence de l’État, par la reproduction d’un texte des Statuts dans la loi, porte atteinte à la liberté constitutionnelle des cultes et à l’autonomie des institutions religieuses.

2. La différence dans le mode d’acquisition du statut de personne morale – ex lege ou par le régime d’enregistrement, détermine l’inégalité dans le régime juridique des cultes. L’enregistrement prévoit l’inscription au registre public des cultes dont la tenue est confiée à la Cour. Ceci signifie que les circonstances, inscrites lors de l’enregistrement, deviennent publiques. L’enregistrement peut être annulé par la Cour pour atteinte aux dispositions de l’art. 7 de la LCR.

Le susdit ne concerne pas l’Église orthodoxe bulgare qui n’est pas soumise à l’enregistrement. Ceci lui confère un statut privilégié par rapport aux autres cultes, bien que l’art. 13, al. 2 de la Constitution n’accorde pas de statut privilégié spécial au culte orthodoxe en reconnaissant son caractère traditionnel. La prétendue inégalité dans le régime juridique des cultes viole l’art. 6 de la Constitution. Cette inégalité découle du statut privilégié de l’Église orthodoxe bulgare, basé sur la religion, ce qui porte atteinte au principe de l’égalité devant la loi.

Les dispositions légales en cause sont non-conformes à l’art. 9 de la CSDHLF. Celles-ci traitent des problèmes relatifs à l’organisation interne d’un culte. En qualifiant l’Église orthodoxe bulgare de porte-parole et représentant du culte orthodoxe, la loi n’admet pas la fondation d’une autre institution orthodoxe et par conséquent, compromet l’exercice libre et sans entraves du droit à la liberté de culte, conformément à l’art. 9 de la CSDHLF et à l’art. 18 du PIDCP.

Concernant le § 3 des Dispositions transitoires et finales.

La disposition en cause stipule «Les personnes qui, avant l’entrée en vigueur de

la loi, ont quitté l’institution religieuse en violation de ses statuts, ne peuvent utiliser une appellation identique et jouir ou disposer des biens de celle-là».

Dans leur demande les requérants affirment que cette disposition-ci est contraire à la Constitution et n’est pas conforme à l’article 9 de la CSDHLF et à l’article 18 du PIDCP, parce qu’elle constitue une ingérence de l’État dans les affaires internes, concernant les litiges internes d’ordre organisationnel des cultes et qu’elle porte atteinte aux droits religieux.

Le § 3 énonce deux interdictions différentes concernant un ensemble de sujets. Selon la première interdiction, ces personnes-là ne peuvent utiliser une appellation identique, tandis que, selon la deuxième, elles ne peuvent jouir ou disposer de ses biens.

Concernant la première interdiction, la Cour Constitutionnelle formule un avis commun, selon lequel celle-ci n’est pas contraire à la Constitution et qu’elle est conforme aux actes internationaux mentionnés dont les textes correspondent, partiellement ou intégralement, aux dispositions constitutionnelles. L’appellation

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est un signe identificatoire, propre à toute personnalité juridique, qui la distingue des autres personnalités juridiques et dans le cas concret - des autres communautés et institutions religieuses et qui la rend reconnaissable. Dans ce sens l’interdiction est justifiée, ne porte pas atteinte aux convictions et principes religieux, ne viole pas la liberté des cultes.

Quant à la deuxième interdiction, au sein de la CC deux positions opposées sont formées dont aucune n’obtient la majorité requise de 7 voix pour faire droit à la demande. Par ces motifs-là celle-ci est rejetée.

Selon 5 juges constitutionnels, la demande, dans cette partie, doit être rejetée, parce que l’interdiction représente au fond une protection constitutionnelle du droit de propriété (art. 17 de la Constitution) à l’égard de son titulaire. Dans le cas concret elle reproduit le principe général de l’état de droit – celui de l’inadmissibilité de la libre disposition des biens d’autrui sans motifs juridiques et contre la volonté du propriétaire. Cette disposition-là stipule l’inadmissibilité de la prétention des personnes qui ont quitté la communauté religieuse, sur les biens de celle-ci. En même temps cette interdiction n’exclut pas la possibilité, donnée à cette communauté ou institution religieuse, d’attribuer, si elle en a la volonté, des droits patrimoniaux à ces personnes-là.

Selon les 6 autres juges constitutionnels, l’interdiction ne concerne que les personnes qui, avant l’entrée en vigueur de la loi, ont quitté l’institution religieuse en violation de ses statuts. Les questions, relatives aux biens d’une institution religieuse, relèvent de ses affaires intérieures et sont réglées par elle-même. Dans cette logique l’interdiction porte atteinte à l’autonomie, parce qu’elle interdit à l’institution elle-même d’accorder le droit de jouissance et de disposition sur une partie de ses biens à ces personnes, lorsque la volonté existe. Cette interdiction permet de régler, par voie légale, un litige patrimonial réel, tout en prenant la défense des intérêts de l’une des deux parties litigantes. C’est ainsi que les fonctions juridictionnelles du tribunal sont usurpées.

Concernant le § 4 des Dispositions transitoires et finales.

Cette disposition prévoit l’ordre de l’établissement de la succession entre le

culte enregistré et les anciennes institutions religieuses qui ont joui de la qualité de personne morale jusqu’en 1949. La demande met en cause la délivrance prévue d’un certificat, par une autorité publique, concernant l’établissement de la succession. Les requérants affirment que ceci permet de régler ex lege des questions relevant de la compétence du tribunal, porte atteinte au principe de la séparation des pouvoirs, ainsi qu’à celui de la séparation des institutions religieuses de l’État.

La CC considérant cette partie de la demande mal fondée l’a rejetée. Le problème de la présence ou de l’absence de la succession en question est réglé par le tribunal dans le cadre d’une procédure contentieuse. Le certificat est un moyen démonstratif apportant des précisions relatives au droit litigieux et constitue un

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préalable procédural obligatoire pour former une demande de succession. L’authenticité de ce document peut être contestée. Son contenu n’anticipe pas sur la décision de justice. Sa délivrance par une autorité publique ne représente pas une ingérence de l’État dans l’activité des institutions religieuses et n’est pas contraire au principe de la séparation de ces institutions-là de l’État.

Lors de la formulation de la décision on ne peut pas passer sous silence le fait que, concernant deux questions, à savoir l’acquisition du statut de personne morale et les questions patrimoniales, la CC n’a pas réussi à atteindre et à former la majorité requise pour se prononcer. Du fait de leur rapport avec des communautés et institutions religieuses, ces questions juridiques courantes ont pris une nuance spécifique qui a marqué la jurisprudence constitutionnelle.

A la suite de l’absence de la majorité requise la demande dans cette partie a été rejetée. Mais ce rejet n’est pas équivalent au rejet en cas de prononcement de décision. L’argument formel – l’absence de majorité a réellement enlevé à la CC la possibilité de se prononcer, avec toutes les conséquences juridiques qui s’ensuivent.

A mon avis, la caractéristique dominante de differentia spessifica, propre à la liberté de culte et des communautés religieuses, y a toujours laissé son empreinte.

En guise de conclusion

La reconnaissance juridique formelle des droits de l’homme et des libertés

fondamentales et leur sauvegarde effective, garanties par le mécanisme de la défense juridique, impliquent les cours constitutionnelles en tant que garant important du maintien d’un haut niveau du standard européen.

Sur ce sujet-là la pensée européenne poursuit son évolution, aujourd’hui encore. Matérialisée dans l’art. 6 du Traité de Lisbonne, elle posera de nouvelles questions relatives au contenu des nouveaux droits et libertés et de ceux reproduits dans la Charte des droits fondamentaux, à la pratique de l’application de la Charte en tant que droit primaire – un traité fondateur de l’Union européenne, au risque de collision entre la juridiction de la Cour des droits de l’homme à Strasbourg et celle de la Cour des Communautés européennes à Luxembourg, ainsi qu’à la juridiction des cours constitutionnelles, notamment dans le domaine des cultes.

Il est d’une importance primordiale d’assurer l’unité des droits de l’homme et des libertés fondamentales en tant qu’impératif de la pensée et de l’action, propre à la civilisation moderne sur le Vieux Continent.

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LEGAL ASPECTS OF RELIGIOUS FREEDOMS

Myron NICOLATOS, Justice of the Supreme Court of Cyprus.

The governments of all democratic countries, in their ordinary laws or in their

Constitutions, embody the rights to freedom of thought, conscience and religion. In this manner the spiritual rights of the person, are safeguarded.

Article 18 of the Constitution of the Republic of Cyprus makes specific provision for those rights, based on the corresponding provision in Article 9 of the European Convention for Human Rights and Fundamental Freedoms. Article 18 safeguards the right to freedom of thought, conscience, and religion. It declares all open religions to be free and equal before the law and gives the right to every person to profess his faith and exercise his worship either alone or collectively. No physical or moral force can be exerted on anybody for the purpose of making him change or not change his faith.

All the above principles have now become self evident axioms. The authority and power of the Church in all democratic countries is separated

from the State´s power. This separation, in my humble opinion, may prove useful and necessary if it is not seen as a source of difference but as a basis for mutual collaboration on two separate aspects of human life. The Church cares for the inner spiritual beliefs of the person, whilst civil authorities care for his well being within the society. Religious teaching is validly expected to foster peaceful coexistence and mutual respect regardless of the various doctrines adhered to by different ethnic groups. Church leaders, I believe, must strongly oppose the sinister use of religious beliefs by politicians in their aim to promote ethnic, geopolitical, strategic, or economic interests of their countries, thus stirring upheaval and hatred against fellow citizens or peoples in other countries. If religious beliefs are used by governments to promote political aims, then all spiritual aspect in life will be defeated and the people will turn into a hating mob instead of a civilized and tolerant society, respecting the rights and liberties of everyone.

Cyprus has been an excellent example of a country where different religions coexisted in harmony, for centuries.

It is indeed with disappointment that I note that since the de facto division of our country in 1974, religion is used as a tool for segregating people both socially and geographically.

I feel, with all respect, that churches must prove that they are not a subordinate body to those exercising political power, but an independent spiritual community embracing all people and caring for their well being. The clergy in all countries is expected to play its true and genuine role.

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CONSTITUTIONAL GUARANTEES OF FREEDOM OF FAITH AND POSITIONS OF CHURCHES IN THE

CZECH REPUBLIC

Doc. JUDr., Václav MEZŘICKÝ Secretary General of the

Constitutional Court of the Czech Republic

It is impossible to give an account on constitutional guarantees of freedom of faith and religion and constitutional status of Christian churches in the Czech Republic without at least a short historic excursus. First it needs to be stated that following the latest census of 2001 Christian religions of different kinds were reported to be adhered to by 3,288,000 people, i.e. 32.14 % of the country population. The Czech Republic, together with Estonia and Sweden, thus belongs to the most atheistic countries of Europe.

Leaving aside the about-faces of the Thirty Years´ War and the subsequent forced re-Catholicism of the population, before 1618 mostly belonging to non-Catholic churches, then the greatest effect on the current relationship of the Czech society to Christian faith in general was represented by the forceful Germanising threatening the very national culture and identity. The growth of European nationalism in 19th century, the efforts of the Czech society for establishment of an independent state equal to the German and later to the Hungarian state within the Austro-Hungarian Empire, which ended in vain, contributed in a major part of Czech public to identification of the majority Catholic church with the monarchist political system hostile to nationalist efforts. An important role was also performed by the fact that only in 1781 the issue of the Religious Tolerance Charter permitted existence of non-Catholic churches (Protestant churches, Easter Christian church, emancipation of the Jews).

All these circumstances reflected in the attitude of the new national government to churches in general, and the still majority Catholic church in particular, after 1918. The socialisation trends overwhelming Europe after 1945, in the communist totalitarian regime after usurpation of power in 1948 resulted in the efforts to surrender the freedom of faith and religion and the churches to the requirements of the totalitarian power.

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A) STATUS OF INDIVIDUAL

I. Purpose and Content of Freedom of Faith (Religion) and Freedom of Conscience

The current legislation stipulating freedom of faith clearly bears traces of the

historic development described in the opening paragraphs of this essay. The key role is played by the provisions of Articles 15 and 16 of the Charter of Basic Human Rights and Liberties1 as part of the Constitutional Law and Order of the Czech Republic (announced by Resolution of the Czech National Council no 2/1993 Coll.).

Article 15 beginning with provision of the guarantee of freedom of thought, conscience and religious conviction follows with an emphasis on the statement of the right to change religion or faith or be non-denominational. This may be understood as a continuing response to the religious intolerance established by the monarchic regime after 1618, and therefore not only as the heritage of the liberal freedoms declared by the American constitution and the French revolution. This is also confirmed by the wording of one of the opening articles of the Charter, Article 22, pursuant to which the State is based on democratic values and may not be

1 Article 15 of the Charter (1) The freedom of thought, conscience, and religious conviction is guaranteed. Everyone has the right to change her religion or faith or to be non-denominational. (2) The freedom of scholarly research and of artistic creation is guaranteed. (3) No one may be compelled to perform military service if such is contrary to his conscience or religious conviction. Detailed provisions shall be laid down in a law. Article 16 of the Charter (1) Everyone has the right freely to manifest her religion or faith, either alone or in community with others, in private or public, through worship, teaching, practice,and observance. (2) Churches and religious societies govern their own affairs; in particular, they establish their own bodies and appoint their clergy, as well as found religious orders and other church institutions, independent of state authorities. (3) The conditions under which religious instruction may be given at state schools shall be set by law. (4) The exercise of these rights may be limited by law in the case of measures necessary in a democratic society for the protection of public safety and order, health and morals, or the rights and freedoms of others. 2 Article 2 sec 1) of the Charter: Democratic values constitute the foundation of the state, so that it may not be bound either by an exclusive ideology or by a particular religious faith.

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bound to an exclusive ideology, or religious faith (sic!). The following Article 33 , declaring equal guarantee of freedoms and rights regardless faith and religion, clearly points towards the same concerns, resulting for the Czech nationalists from experience in totalitarian ideologies and other historic traumas of earlier times. Article 16 Sec. 4 of the Charter in addition emphasizes the option of legislative limitation to the freedom to perform a religion or faith in cases considered necessary for protection of public safety and social order, health and morality. It is notable how the Charter emphasizes limitation of potential negative effect of faith and churches, before in the following Article 17 Para 44 in fact it uses the same diction to limit performance of the liberty of speech and the right to search for and disseminate information.

It may therefore be concluded that in the Czech cultural context potential threats to the freedom of conscience but also faith are seen in every ideology, and eventually in every face of faith.

It is worth mentioning that still the First Republican Constitution after 1918 (Act of 29 February 1920, introducing the Constitutional Charter of the Czechoslovak Republic no 121 Coll., of 6 March 1920) only stipulated freedom of conscience and conviction without any further comments (Section 121), further stating that all religions were equal in front of the law (Section 124 ). This may lead to a deduction that the effective Czech constitution has a more pronounced relationship to faith and religion than the law makers immediately after the fall of the Austro-Hungarian Empire.

Article 16 defines the forms of freedom to express conviction and faith and explicitly stipulates the position of the Churches in relation to the State. Article 16 Para 2 explicitly states that Churches and religious societies are to administer their own affairs, establish monasteries and other Church institution independent on the state authorities (for details see B) The Status of Religious Societies”).

3 Article 3 sec. 1 of the Charter: Everyone is guaranteed the enjoyment of her fundamental rights and basic freedoms without regard to gender, race, color of skin, language, faith and religion, political or other conviction, national or social origin, membership in a national or ethnic minority, property, birth, or other status. 4 Article 17 sec. 4 of the Charter: The freedom of expression and the right to seek and disseminate information may be limited by law in the case of measures that are necessary in a democratic society for protecting the rights and freedoms of others, the security of the state, public security, public health, or morals.

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II. Protection of Religious Values as Basic Human Rights in Selected Judicature of the Constitutional Court

On the other hand, even if it is true that the conflicts that might arise in this area

between churches, or various groups of believers and the State would not be fundamental, nevertheless a certain tension between the State and the, above all, Catholic church, is evidenced – not only symbolically – by the continuing dispute concerning the ancient seat of the archbishop, the St. Vitus´ Cathedral at the Prague Castle, commenced by the Communist system ´s decision to make the cathedral the "property of the people", i.e. of the State.

Protection of religious freedoms in religious relationships is provided by the Family Act no 94/1963 Coll., as far as the family is concerned. Both civil and church wedding is acknowledged. Pursuant to Section 4a the fiancées may declare their intention to enter marriage in front of the respective church authority.

Pursuant to Section 31 Para 1 of the Act parental responsibility as the sum of rights and liabilities includes care of emotional, rational and moral development of their children. Section 32 Para 1 declares that the parents play the decisive role in their children upbringing. These provisions must be related to Articles 15 and 16 on guarantees of the liberty of thought, conscience and religious conviction and the right to free expression of religion or faith.

III. Freedom of Conscience and Conviction under Special

Circumstances (in prison, in the army)

In the sense of Act no 3/2002, on Freedom of Religious Conviction and Position of Churches and Religious Societies pursuant to Section 15 Para 1 of Act no 293/ 1993 Coll., on Arrest, the accused is guaranteed the right to provision of religious and social service. Similarly pursuant to Act no 169/ 1999 Coll., as amended by Act no 359/ 1999 Coll., on Imprisonment, the right to provision of religious and other services of a similar nature in prison is guaranteed and the conditions of implementation of the right are stipulated. The right of professional soldiers (the Czech Republic only has professional armed forces) to freely express their religion or faith is stipulated in Act no 221/1999 Coll., on Professional Soldiers, in Section 46, but only in the negative terms, stating that the soldier must not organise religious rituals and service and take part in them if it is against important interest of the army service. Implementation of religious rights is the responsibility of Churches and religious societies, granted with special rights to authorise persons performing religious service to perform the service in the army, in prison etc., in the sense of Section 7 Para 1 letter b) of Act no 3 / 2000 Coll., on Freedom of Religion.

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IV. Protection of Personal Data and Data on Religious Demography General protection of personal data is stipulated by Article 10 of the

Constitution. Detailed stipulation of the protection is included in Act no 101 /2000 Coll., on Personal Data Protection (the complete wording announced by Prime Minister under no 525 / 2004 Coll.). The Act, in harmony with the law of the European Communities, stipulates the rights and liabilities related to personal data processing. Sensitive data pursuant to Section 4 letter b) of the Act include, among other things, information about religion and philosophy of the individual. When processing personal data pursuant to Section 10 of the Act the liable entities must protect the personal data provider against loss of its rights, especially of the right to respect for human dignity, and against unauthorised interference with private life of the personal data provider. When collecting personal data, pursuant to Article 11 Para 1 of the Act the liable entity (data administrator) must inform the data provider to what extent and for what purpose its personal data will be processed. If the personal data provider asks for information about its personal data processing, then the liable entity (data administrator), pursuant to Section 12 Para 1 of the Act, is obliged to provide this information. The liable entity (data administrator), pursuant to Section 13 of the Act, is liable to provide for safe keeping of the collected personal data.

Out of the abovementioned 3,288,000 Czech Christians, pursuant to the last census in 2001, there are 2,740,700 Roman Catholics, 117,200 Czech Brethren, 99,000 Hussites, 22,900 Eastern Christians, 14,800 Evangelic of CR and 14,000 members of Silesian Evangelic Church (of Augspurg conviction), 9,900 Brethren, 9 700 Seventh Day Adventists, 7,600 Greek Catholics, 6,900 Christian Corps, 5,400 Lutheran Evangelic in CR, 4,500 Apostolic and 4,000 Christian Community members. The remaining churches have less than 4,000 members each, except for Jehovah witnesses with 23,000 members.

Pursuant to the age structure the 0-14 age group represents 10 % of the total number of believers, the 15- 19 age group represents 4 %, the 20-29 group 11 %, the 30 – 39 group 9 %, the 40 – 49 group 12 % , the 50 – 59 group 18 %, the 60 – 69 group 17 %, and the more than 70 years group 19 % ( Source: Internet site of Christianity in the Czech Lands – Wikipaedia, open encyclopaedia http://es.wikipedia.org./wiki/C%C3%ADrkev )

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B) STATUS OF RELIGIOUS SOCIETIES

I. Religious Societies vs. State General Model of Constitutional Relationships

Generally speaking, the Czech Republic is a neutral state in relation to churches

and church societies, but requiring relatively rigorous conditions for registration of churches and religious societies, keeping them materially dependent on the state budget, regardless the continuously postponed settlement of the restitution claims, especially of the Catholic Church.

This is also confirmed by the Preamble to the Constitution of Czech Republic declaring fidelity to all good (sic!) traditions of the ancient State of the Bohemian Kingdom and the Czechoslovak State (The Constitution was formulated before the split of the country into Slovakia and the Czech Republic, viz Complete wording of Constitutional Act no 1 / 1993 Coll., Constitution of the Czech Republic), not listed any further. The issue of the relationship to churches and religious traditions is then left to particular stipulations of the liberty of conscience and religious conviction in the Charter of Basic human Rights and Liberties as part of the Constitutional Law and Order of the Czech Republic (the abovementioned Articles 15 and 16 of the Constitution).

II. Freedom to Establish and Organise Religious Societies

The relationship between the State and churches is particularly stipulated by Act

no 3 / 2001 Coll., on Freedom of Religious Conviction and Position of Churches and Religious societies and on amendment to certain other acts.

Pursuant to Section 6 of the Act the church and the religious society becomes a legal entity by registration. A registered church or religious society may propose a body of the church or religious society or a church or monastic institution for the purpose of organisation, confession and dissemination of religious faith as a legal entity pursuant to the Act.

Pursuant to Section 3 Para 1 of the Act the church and the religious society is a voluntary association of individuals with its own structure, bodies, bylaws, religious rites and manifestations of faith established for the purpose of practising of a certain religious conviction.

The distance of the State in relation to church and religious society activities is stipulated by Section 4 Para 2 of the Act reading that the State, the regions and the municipalities cannot perform religious or anti-religious activities.

The basic documents of the church and the religious society pursuant to Section 10 Para 3 of the Act must include, among other things, in addition to the name of the church or religious society (letter a ), the mission of the church or religious society and the basic articles of the conviction (letter b), specification of the body acting on behalf of the church or religious society (letter d), personal data of

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members of the body pursuant to the previous provision (letter e), organisational structure of the church or religious society, types of bodies and other church institutions with specification of those that are to be legal entities (letter f) and eventually the principles of the church or religious society economy, including but not limited to the methods of fund raising (letter j).

Only after registration and fulfilment of further legislative conditions the church and the religious society receives “special rights” of registered churches ad religious societies pursuant to Section 7 of the Act, such as the right to teach religion at state schools, the right to be financed pursuant to special legislation on financing of churches and religious societies etc.

The authorisation for performance of special rights obtained by the church by special decision may only be issued by a church registered pursuant to the Act continually for 10 previous years before the proposal submission, publishing Annual Reports for the decade and fulfilling duly its liabilities towards the State and third parties, for example pursuant to Act no 337 / 1992 Coll., on Tax and Levies.

In the sense of the above quoted Act no 3/ 2002 Coll., on Freedom of Religious Conviction a proposal for registration of a church or religious society pursuant to Section 10 Para 2 of the Act may be filed with the ministry by at least 3 natural persons together. The persons must meet the legislatively stipulated conditions (age, eligibility for legal acts etc.). The proposal must include the basic characteristics of the church and the religious society, its teaching and mission, a record on the church or religious society foundation in the Czech Republic, and autograph signatures of 300 adult citizens or foreigners with permanent residence in the Czech Republic adhering to the church or religious society.

III. Co-Existence of the State and Religious Societies

The relationship between the State and the religious societies was described in detail under B / I. Religious Societies vs. the State.

IV. Religious Societies, Education and Religious Upbringing

By registration and grant of special rights in the sense of Section 7 of Act no 203 / 2002 Coll., the churches and the religious societies receive the right to teach religion at state schools in the context of Act no 561/ 2004 Coll., on Preschool, Elementary, Secondary, Higher and Other Education (Education Act). The Act stipulates in its Section 15 Para 1 that religion may be taught at schools by registered churches and religious societies. Pursuant to Section 8 of the Act the registered churches with authorisation for execution of special right may establish church schools.

Pursuant to Section 6 of Act no 203 / 2002 Coll., the registered church and religious society may teach and educate its church and lay workers in its own

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schools and other institutions and at universities of theology and theological faculties. Details are stipulated by Act no 111/ 1998 Coll., on Universities.

V. Property Restitutions

This is the most sensitive issue in the relationship between the State and

churches. That is why clarification of this issue again requires a short historical survey. In the Middle Ages churches were the largest owners especially of real estate property. In 14th century churches held about one third of all land in Bohemia. Even after the historic events of the Hussite period (15th century), reformation and counter-reformation ( 1618 – 1648 and the following period) Catholic church was one of the largest owners of land and real estate property (not only sacral buildings) in the Austro-Hungarian empire. The republican regime after 1918 performed a large land reform affecting 2,358,204 ha of land, of which 234,119 ha was represented by church land. The State actually confiscated part of the occupied land, transferring the land onto the new owners, postponing part of the occupational reform for later. In reality 36,975 ha of church land was transferred onto the new owners. Historically significant was the resolution of the Supreme Administrative Court of 14 April 1927 stating that the occupation did not transfer ownership right to the land onto the State, when the State postponed execution of part of the occupation for later. The church therefore continued to cultivate the land subject to the occupation. The communist regime resulted in State administration of all land and other real estate properties of the churches promising to provide compensation for the expropriated landed property. The compensation was never paid out. On the contrary in 1950 all 2,200 monks and 10,000 nuns were ordered internship. By this act the State got hold of about 850 monasteries and convents. The church, deprived of its material base, thus lost means not only for maintenance of buildings used for cult needs. As a consequence values and symbols of Christian and national identity were left to decay (such as the buildings of the monasteries).

After 1989 two acts were passed, namely Act no 298 / 1990 Coll., and Act no 338/ 1991 Coll., by which Catholic church and its orders were retuned 84 monasteries and 84 convents, but without the economic background, i.e. just with the minimum necessary background such as yards, gardens etc. (pursuant to Ing. Mojmír Kalný, Brief Survey of Destiny of Czech Church in 2nd Millennium with Special Attention to the Relationship of the State to the Church and System of Church Financing).

The overall settlement of accounts between the Church and the State is to be represented by the Act on Mitigation of Certain Property Damage Caused to Churches and religious Societies in the Period of Non-Liberty, on Settlement of Property Relationships between the State and the Churches and the Religious Societies. However, the Act and its regulations keep facing permanent resistance of significant parts of political representation.

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The proposed act is to eliminate economic dependence of the churches on the State and allow for de-blocking of the land still blocked as church property before 1948. The proposed Act is a compromise. The State and the churches have compromised to find an acceptable solution. The State would return property confiscated in some cases illegally, and compensate the churches and religious societies for property that cannot be returned. The proposal is based on the liability of the State expressed by Act on Settlement of Ownership Rights to Land no 229/ 1991 Coll., where the State promises in Section 29 to settle restitution claims of churches by a special act and bans alienation and sales of land potentially subject to the restitutions.

The value of the assets that cannot or will not be returned is specified in the amount of CZK 83 billion. Financial compensation will be provided for this property. The compensation will be paid for the period of 60 years in annual instalment not subject to income tax. The total amount of CZK 83 billion will be divided among the involved churches and religious societies on the basis of their mutual agreement. The Roman Catholic Church will receive 83 %, and the remaining churches and religious societies will receive the remaining 17 %. This is a significant agreement also for the sake of harmonic relationships between the churches themselves, for 95 % of the church assets taken away by the Communists belonged to the Roman Catholic Church and only 5 % belonged to the other churches.

The act does not settle the damage and indebtedness of churches and church buildings caused by intentionally insufficient economic background provided by the State to the churches in the period 1948 – 1989, does not compensate for devaluation of the returned property and does not settle the revenues from the original church property, especially agricultural and forest land, into the State Budget from 1948 until now (Taken from materials of 2nd meeting of 32nd synod of Evangelic Church of Bohemian Brethren held between 15 – 18 May 2008).

Summary

The current legislation on the freedom of faith reflects the recent and the current

historic development. This explains why in the Czech cultural context potential threats to liberty of conscience and faith are seen equally in every ideology, including religions. This on the other hand does not represent any limitations to freedom of thought, conscience and religious faith, and freedom to establish and organise religious societies. The Constitution and other relevant acts fully provide for implementation of these rights and liberties in family life, in children upbringing, education and in extreme life situations such as imprisonment or army service. Generally speaking, the Czech Republic is a neutral state in relation to churches and church societies, but requiring relatively rigorous conditions for registration of churches and religious societies, keeping them materially dependent on the state budget.

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Reference list of Court decisions related to the matters under A and B

1) Pl ÚS 18/98, subject of proceeding: Right to refuse compulsory army

service if in contradiction to conscience or religious faith – cancellation of legislative act; military and civil service. Resolution: granted; refused

2) Pl ÚS 6/O2, subject of proceeding: position of churches and religious societies – liberty of religious conviction. Resolution: granted, refused

3) I.ÚS 671/01, subject of dispute: rejection of army service for the reason of liberty of thought and religious conviction, military and civil service. Resolution: granted

4) PL ÚS 42/02, subject of proceeding: rejection of army service, principle of equality, liberty of thought and conscience. Resolution: granted

5) II ÚS 674/01, subject of proceeding: rehabilitation; liberty of thought and religious conviction. Resolution: granted; refused for clear lack of substantiation

6) I.ÚS 146/03, subject of dispute: right to free expression of religion or faith, right of churches and religious societies to administer their affairs, liberty of thought and religious conviction. Resolution: granted

7) III ÚS 459/03, subject of proceeding: right of parents refusing medical treatment of a minor, right to protection of parenthood, family and children, right to protection of health of children. Resolution: refused

8) ÚS 528/02, subject of proceeding: right to own and peacefully use assets. Resolution: refused

9) II,ÚS 189/02, subject of proceeding: principle of legality (binding of state power with legislation), right to own and peacefully use assets. Resolution: refused for unacceptability; granted

10) ÚS 298/ 05, subject of proceeding: right to own and peacefully use assets, restitution. Resolution: granted; refused for clear lack of substantiation

11) I.ÚS 50/03, subject of proceeding: right to own and peacefully use assets. Resolution: granted

12) PL.ÚS 2/06, subject of proceeding: equality in basic rights and liberties, and ban of discrimination; right of churches and religious societies to administer their affairs and express their religion or faith; right of association, ban of state bond to an ideology or religion, lay state, ban to reduce the achieved level of protection of basic rights and liberties. Resolution: granted

13) IV.ÚS, subject of proceeding: right of churches and religious societies to administer their affairs. Resolution: granted

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Reference list of laws related to the matters under A and B

1) Constitution of the Czech Republic of 16 December 1992 2) Charter of Fundamentals Rights and Basic Freedoms of 16 December 1992 3) Act no 3/ 2002 Coll., on Liberty of Religious Conviction 4) Act no 101/ 2000 Coll., on Personal Data Protection and on amendment to

certain other acts, full wording published under no 525/2004 Coll. 5) Act no 293/1993 Coll., on Arrest 6) Act no 169 / 1999 Coll., on Imprisonment, in the wording of Act no 359/

1999 Coll. 7) Act no 221 / 1999 Coll., on Professional Soldiers 8) Act no 94/ 1963 Coll., on Family 9) Act no 561/ 2004 Coll., on Preschool, Elementary, Secondary, Higher

Professional and Other Education (Education Act) 10) Act no 111/ 1998 Coll., on Universities

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STATUS OF RELIGIOUS COMMUNITIES

Professor Matti KOTIRANTA University of Joensuu, Finland

Religious Entities as Legal Persons in Finland

1. Legal basis

When studying churches and religious bodies as legal persons in Finland the

new Freedom of Religion Act approved by Parliament on February 11th, 2003 (HE 170/2002 vp) is its basis in administrative law.1 Although the purpose of the Freedom of Religion Act is primarily to ensure the freedom of religion enshrined in the constitution (731/1999), the law contains provisions that concern membership of religious associations, the procedure when joining or leaving a religious association, the oath and affirmation, and application of the law of assembly to the public practice of religion.2 To put it more precisely, the Freedom of Religion Act enacts in detail and exhaustively the legal status and foundation, rights and obligations of churches and registered religious associations.

According to subsection 2§ of the Freedom of Religion Act, the reference to religious associations in the law indicates the Evangelical Lutheran Church, the Orthodox Church and religious associations registered in accordance with subsection 2. Religious activities can also be practised in the form of an ideological association or entirely without organizing in the form of a legal person. Under the new Freedom of Religion Act the Evangelical Lutheran and Orthodox Churches are also religious associations in the sense intended in the act, concerning which associations additional special ecclesiastical laws are enacted. However, as concerns registered religious associations, the procedure is that they themselves accept their order of association, and then it must be approved by the authorities, i.e. the National Patent and Register Board, provided it is not illegal.

In the Finnish context three different types of legal person can be distinguished in religious associations:

(1) The status of the Evangelical Lutheran Church under public law is ensured in the constitution. (2) In the new constitution there is no direct provision for the Finnish Orthodox Church to regulate its position in society. In this respect the legislative status of the Orthodox Church differs from that of the Lutheran Church. The Orthodox Church is the subject of a (skeleton) law (521/1969) and a supplementary statute (179/1970). (3) In Finland a registered religious association 1 I am most grateful to Mr. Matti Halttunen, Church Counsellor of the Evangelical Lutheran Church of Finland for his help in the preparation of this survey. 2 The Act also includes some changes to regulations concerning religious and moral education in basic education and in high schools.

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is, however, a special type of community. Its foundation and legal status are enacted in subsection 2 of the Freedom of Religion Act. Such a religious body gains the status of a legal person, that is, it can acquire property, enter into commitments and be a litigant in court and with other authorities once it is entered in the register of religious associations. In this respect the regulation observes the principle otherwise observed in Finnish community law, whereby the community achieves legal capacity once it is entered in the register of associations kept by the authorities, in this case the National Patent and Register Board.3 Next we shall briefly examine each type of religious body.

The Evangelical Lutheran Church as a legal person

Differing from the general European ecclesiastical context, the status of the

Evangelical Lutheran Church of Finland under public law is still ensured in the new constitution that came into force on March 1st, 2000 (731/1999).4 This strong constitutional status is derived historically from the fact that the legal system of the Evangelical Lutheran Church of Finland, based on the constitution, is older than the 1917 constitution of the Republic of Finland, because Schauman’s Church Act (1869) was enacted by the Finnish Diet during the period of Finnish autonomy, the Swedish constitution of 1772 being positive law. Because the church legal system is based on the constitutional principle in existence before the first constitution of the Republic of Finland, this has given the continuity of the system a strong position in later constitutional reforms.

The main hallmarks of the status of the Evangelical Lutheran Church of Finland under public law are considered the special mention of church law in the constitution (PL 76§).5 From the point of view of the Evangelical Lutheran Church, the most important is the order of enactment of church law (CL 2:2 subsection 1 § ), which includes the exclusive initiative of the General Synod and non-interference

3 In the Finnish system all legal persons – associations, trusts, corporations, limited partnership companies and various bodies – need ratification by the state authorities in order to gain legal status and legal capacity. 4 See http://www.eduskunta.fi. => In English/The Constitution of Finland. 5 PL 76 § reads as follows: "In church law is enacted the constitution and administration of the Evangelical Lutheran Church. As concerns the order of enactment of church law and the initiative concerning church law, that which is in force is laid down in the aforementioned law separately." Subsection 76 § of the present constitution corresponds to the special mention of church law in the old constitution before 1999 (Const. 83 subsection 1 § 1 and Parliament Act (PA 31 subsection 2 § 2 ). The new constitution does not contain special provisions corresponding to constitution 83 subsections 2 and 3 §, which apply to other religious associations than the Evangelical Lutheran Church. It was considered unnecessary to include the regulation concerning the right to found new associations in the constitution, because regulation 13 § of the constitution concerning freedom of association also applies to the founding of religious associations (PeVM 10/1998 vp).

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by government legislative bodies in the content of ecclesiastical bills introduced by the General Synod. In practice this means that the Church’s own organ, the General Synod, has power to introduce bills enacting and changing church law. Parliament, which finally enacts the law, only has the right to approve or reject an ecclesiastical bill.6

The Evangelical Lutheran Church of Finland and its parishes is under public law a self-administered body like the municipalities. Legislatively, church administration is mainly organized with church law provisions, but provisions concerning church administration are also contained in other ecclesiastical laws, in general administrative laws and in ecclesiastical statutes with the authority of church law.

The Finnish Orthodox Church as a legal person

When comparing the legislative status of the Orthodox Church with the

Lutheran Church, one must recognize that the Orthodox Church is affected by the Orthodox Church Act (521/1969) and its supplementary statute (179/1970) and in addition the Freedom of Religion Act, and other general administrative legislation. Problems of application between the Orthodox Church Act and Statute and by other regulations in society hardly ever occur, because the Orthodox Church Act is government-enacted law and its content when enacted more clearly as a skeleton law was already adapted to general legislation.7 According to statute 171§ concerning the Church, the task of the General Synod is to introduce bills to the government on laws and statutes concerning the Church. The initiative for new regulations thus most often comes from the Orthodox Synod. The government is not, however, bound to the content of the bill, but the provisions concerning the Orthodox Church can be given in the form desired by the government. Thus the Orthodox Church cannot influence the enacting of laws concerning itself with a similar bill procedure as in the case of the (Evangelical Lutheran) church law system. Legislation concerning the Orthodox usually arises law in the process of preparation and enactment. Then it remains at the discretion of the government as to whether during the preparation of the law there was willingness to listen to the Orthodox Church.

6 When the 1917 constitution was in preparation the older church law principle was accepted of the exclusive initiative of the General Synod, although it remained in formal conflict with the constitution and parliamentary order. 7 It is interesting to note that in this the legislative arrangement of the Finnish Orthodox Church is in some sense reminiscent of the arrangement adopted in the Church of Sweden in the sense that after the reform of the Church of Sweden at the beginning of 2000 (whereby State and Church were separated and the Church gained the status of an independent legal person) it is affected, in addition to legislation on other faiths, only by a brief skeleton law.

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The new law concerning the Orthodox Church (to the extent of subsection 118 §) came into force at the beginning of 2007. A committee of the Ministry of Education has drawn up a bill concerning the Orthodox Church to replace the present legislation.8

The Orthodox Church would remain basically as at present with special status under public law. According to the bill, the Orthodox Church would adopt a church constitution which would provide more precise stipulations for church activities and administration. The church constitution would be given by the General Synod. The status of the central and diocesan administration of the Orthodox Church would be altered to be more independent of the State so that its expenses would no longer be paid directly from state funds. The Church’s economic activities would be ensured, however, by a corresponding amount of state aid. Some internal affairs and administrative matters which are today the responsibility of the Ministry of Education would be transferred to the Church’s own organs. Several changes are proposed to regulations concerning church and parish administration. The basic structure of church administration would remain, however, largely as at present.

The Orthodox Church and parishes would shift to one type of employment relationship so that the civil servants of the Central Church Board and parish clergy would shift to a contract relationship. The terms of the personnel employment relationship would be negotiated with a collective bargaining agreement.

In church administration a procedure of claim for rectification would be adopted in which the obligatory preliminary stage of a complaint would be a claim for rectification to the Central Church Board. Application for alteration to the decision taken by the Central Church Board could be made by complaining to administrative law.

Registered religious associations as legal persons

In Finland a registered religious association has its own special type.9 A

registered religious association is a type of independent special legal subject, like a registered association, corporation, co-operative or trust. In subsection 2 (7–28 §) of the Freedom of Religion Act is created a legislative framework for the founding and activities of registered religious associations.

Subsection 7§ 1 lays down the purpose of a registered religious association, which distinguishes registered religious associations from the other aforementioned legal subjects. According to the subsection, "the purpose of a registered religious

8 Bill concerning the Orthodox Church, Ministry of Education working group memoranda and reports 2004:32. 9 Historically the term "registered religious association" goes back to the 1923 Freedom of Religion Act, which defined a specific type of legal person or "religious association." By nature it is a community under civil law and a legal person under civil law, with a great number of features of an ideological association .

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association is to organize and support individual, corporate and public activities pertaining to religious profession and religious observance, based on confession of faith, Scriptures or other individualized established sacred activities." The bases of the activities of a registered religious association should thus be individualized, established and regarded as sacred by the community.

A registered religious body may be founded and registered as a religious association only if its purpose is in accordance with subsection 7 § 1. A body founded for other purposes, even though it may include religious activities, can be registered, for example, as an association under the law of associations. The right to profess and practise religion or the right to express one’s convictions per se are not dependent on whether the body in question is registered as a religious association.

For some religious bodies the requirement of a basis of faith has been an obstacle to registering as a religious association under the Freedom of Religion Act, because a basis of faith is considered to be contrary to the religious principles of the organization. Not in all religious bodies are activities based on a confession of faith nor is there always a desire to formulate a basis of faith beyond the Scriptures. The purpose of a registered religious association does not, however, require that activities be based on a religious confession. It suffices that the bases of established religious activities can otherwise be sufficiently individualized. Confession, however, is mentioned in subsection 1 as one kind of basis of established activity.

Registration as a religious association does affect, however, among other things, the right to receive religious education.10 In addition, registration has an effect on taxation, penal protection and the possibility of applying for the right to solemnize matrimony. From this point of view, assessment of the purpose and types of activity of the organization are important for the authorities (the National Patent and Register Board).11

Some bodies engaging in religious activities have not organized as registered religious associations but as ideological associations, for example. The largest group are Pentecostal assemblies, which in 1999 had approximately 49,000

10 The organizer of instruction also has the responsibility to arrange confessional religious education for other than pupils of the Evangelical Lutheran or Orthodox Churches. This obligation arises if the guardians of at least three pupils of the same faith who are exempted from religious education demand it. Religious education must on the aforementioned terms be arranged in accordance with the basis of faith of a religious association registered under subsection 13§ of the Freedom of Religion Act. Confessional. religious education need not, however, be arranged on the basis of the teachings of other registered or unregistered religious associations. A pupil from a religious association for whom his or her own religious education is not arranged , may be taught moral education at the request of the guardian. 11 On notification of foundation to the register of religious associations, see in more detail http://www.prh.fi/stc/forms/perusilmoitus_yhdistysrekisteriin.pdf.

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baptized members, and if children are included a total of approximately 55,000 members. At present the Pentecostal movement is, however, organizing as religious bodies. From the beginning of 2002 the Ministry of Education received notification concerning the founding of two Pentecostal religious associations.12

If the religious association (or any other body) is not registered, it cannot receive competent legal person status nor gain rights and obligations. Persons acting on behalf of such an unregistered body are responsible for all their commitments personally.

There are no regional differences in the legal status of religious bodies as far as registration is concerned, because in Finland there is not a federal system.

2. Registration of religious bodies and the relevant formal

requirements

The new Freedom of Religion Act gives clear descriptions of the legal status and basis, rights and duties of registered religious associations.

The founding and registration of a religious association Charter of foundation and order of association

In order to register as a religious association under subsection 15 § of the Freedom of Religion Act the National Patent and Register Board must be notified in a document signed by a minimum of twenty persons. In practice, under 18-year-olds are not accepted as founding members because his or her right of religious self-determination is limited. When founding an association a charter of foundation is drawn up to be signed by the founding members. To the charter of foundation is attached an order of association (§ 10), which is delivered to the National Patent and Register Board in connection with notification of foundation of an association.13 The content of the regulations concerning the charter of foundation and the order of association correspond in many respects to the regulations concerning association law in force when founding a registered association and those concerning the order of association of a religious association.

Subsection 10 § lays down the minimum content of the order of association of a registered religious association. Accordingly: (1) an association must have a domicile in Finland14; (2) the order of association must mention the purpose and types of activity of the association in accordance with subsection 7 §; (3) the

12 Registration of a religious association was decided before the new Freedom of Religion Act was approved by the Ministry of Education. 13 See in more detail http://www.prh.fi/stc/forms/perusilmoitus_yhdistysrekisteriin.pdf 14 The regulation corresponds to the Freedom of Religion Act and the law of associations in force.

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grounds whereby a person may be accepted as a member of the association, (4) which organs and which persons exercise power of decision in the association in each matter; 5) the number or minimum and maximum number of board members and auditors and their term of office; 6) the accounting period of the association, confirming of the balancing of the accounts and the discharging of personal liability; 7) the responsibility to pay membership fees and others fees to the association; 8) the procedure for alteration to the order of association and dissolution of the association; and 9) the use of funds in the event of the dissolution or termination of the association.

The National Patent and Register Board (previously the Ministry of Education) must approve the entry of a religious association in the register and see that the order of association is drawn up in accordance with the Freedom of Religion Act, that the basis of faith and type of religious observance of the association are not contrary to law and good manners, and that the board of the association and the associated parish council (§12) fulfil the stipulations laid down in subsection 10 § of the Freedom of Religion Act.15

Members and the membership register

A member of a registered religious association may be a private individual. Unlike the case of other associations, organizations or trusts cannot be members of a religious association. The subsection 11§ of the Freedom of Religion also lays down the duty of the association to maintain a register of its members. Regulations on membership registers of religious bodies, on information contained in the register, on keeping a register and on the divulging of information contained in the register are laid down specifically in a relevant law. Under the aforesaid law the keeper of the membership register of a religious association is an association, a parish or body whose task it is to keep a register as laid down or specified in the order of association. Thus in a registered religious association another body than the board of the organization may be responsible for keeping a register. As far as the Evangelical Lutheran Church is concerned, the responsibility to maintain a membership register is based on church law 16 subsection 2 §, and as concerns the Orthodox Church subsection 12 a § of the Orthodox Church Act.

Decision-making and administration in registered religious associations

15 The Ministry of Education has rejected notification of founding in only a few cases. It may be that the activities of the community are not considered to be religious observance or that an account of the basis of faith or types of public religious observance is lacking or the notification has been insufficient or unclear and the association has not in spite of repeated requests provided the lacking documents.

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The regulations of the Freedom of Religion Act concerning the organization and administration of a registered religious association are very scant. The associations can thus very freely decree on these matters in the order of associations. The organization of an association and the administrative requirements set are mainly apparent from subsection 10 § of the Freedom of Religion Act concerning the minimum content of an order of association.

An association must have a board comprising one or more members. Requirements set for members of the board are laid down in subsection 12 § of the act. A member cannot be a person under 18 years of age or one almost 18. The majority of members of the board (the chairman and at least half of the other members of the board) must have a domicile in Finland, unless the Ministry of Education grants permission to diverge from this. The board must by law and the order of association carefully tend to association affairs and represent the association.

The authority belonging to the board of the association can also be exercised by some other organ. The regulation ensures that registered religious associations have the possibility of appointing the board in line with their religious views. The order of association must then mention what organ acts as a board in the sense intended by the Freedom of Religion Act.

Local communities as registered religious associations

A registered religious association may be a parish or other local body. It is legally competent and may be entered in the register of religious bodies under the association in question.

Subsection 13 § concerning local communities lays down regulations for parishes or branches of the registered religious association and other local bodies. The aim of the clause is to increase opportunities for religious associations to organize the status of local communities as compared with the old Freedom of Religion Act (1923). The old Freedom of Religion Act was based on the dominant way of thinking that the organization and administration of all local communities was regulated uniformly in the order of association. The new Freedom of Religion Act makes it possible for each religious association itself to define much more loosely than at present relations between the association and local communities in accordance with its own views and needs.

Accordingly, subsection 1 of the clause on the division of the association into parishes or other local bodies should be defined in the order of association. Under subsection 2 of the clause, a local body can be entered in the register of religious associations under the religious association in question. Such a registered local body is legally competent, that is, it may acquire rights and enter into commitments and be a litigant in court and before other authorities. Subsection 3 of the clause lays down the minimum requirements as to what kind of stipulations should be contained in the order of association concerning the organization and

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administration of registered local bodies. The regulation naturally concerns only such associations whose order of association permits registered local bodies. According to subsection 4 of the clause, in the order of association it is, however, possible to delegate the issuing of regulations intended in subsection 3 either in part or in total to the local bodies themselves. Local bodies could then mostly decide for themselves on how to organize their decision-making and administration. The aforementioned stipulations are issued by the local body in a document called local regulations. Economy of a registered religious association and members’ liability to pay fees

Members’ obligation to pay fees to a registered religious association must be

stipulated in the order of association. It includes under subsection 10 § (5-7) of the Freedom of Religion Act stipulations concerning the care and inspection of properties owned by the association. No other regulations on the financial management of the association are contained in the Freedom of Religion Act. An association is not accountable unless it conducts business or engages in professional activities.

According to subsection 14 §, a person who resigns from the association is obliged to pay before resigning any fees due, based on the order of association. This would be the case even without the regulation in question. A person’s obligation to pay church tax is determined according to the situation at the beginning of the fiscal year. Thus a person who has left the Evangelical Lutheran Church or the Orthodox Church during the fiscal year is obliged to pay church tax for the entire fiscal year. The order of association of a registered religious association can correspondingly stipulate that a member is obliged to pay to the association, based on the order of association, fees for the entire calendar year during which the member has resigned. A member cannot be obliged to pay fees for a longer time after his or her resignation. Liability to pay may, however, only apply to such fees as were decided upon before the date of resignation.

According to the new Freedom of Religion Act, fees may not be recovered by bailiffs without a specific court decision or a decision to recover tax and fees by bailiffs under the law of recovery of debt by enforcement order. In practice this possibility has previously been resorted to by only a very small number of religious associations. Of the twenty-three associations that responded to a questionnaire from the Ministry of Education sent to all registered religious associations in February 2000, only one stated that it recovered membership fees by enforcement order.

Dissolution and termination of a registered religious association

An order of association must contain stipulations on the manner of possible

dissolution of the association and the procedure to be followed with respect to the

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disposal of its property in the event that the association cease to exist. Under subsection 20 § of the Freedom of Religion Act the chairman of the board or liquidator must send notification of dissolution of the association or registered local body to the National Patent and Register Board indicating the person or persons acting as liquidators and informing that liquidation measures have been concluded. After the dissolution of the association what is applied to the termination of activities and to liquidation measures are the relevant parts of what subsection 16 § 1 lays down concerning the entering of a religious association in the register, that is, the National Patent and Register Board notifies the civil register centre, which records the information on the population information system concerning the dissolution and termination of the association.

The right of inspection of the National Patent and Register Board – preliminary examination and expert committee

Under subsection 21 § of the Freedom of Religion Act, the National Patent and

Register Board may conduct upon application by the association or its founder members a preliminary examination of the order of association or its alteration, if there is reason, whether with respect to the size of the association, the significance of the alteration to the order of association or another similar reason. The decision concerning preliminary examination is binding, unless the association has changed the order of association in the preliminary examination. The decision is in force for two years from the date it is made.

Subsection 23 § of the Freedom of Religion Act lays down the setting up of a committee of experts whose task it is to provide the Patent and Register Board with a statement as to whether the purpose and types of activities of a registered religious association are in accordance with subsection 7 §. The committee acts as an expert body evaluating the religious nature of the activities of the association. A statement must be procured when registering the association for the first time and when altering the purpose and type of activities mentioned in the order of association.

The task of the committee is primarily to assess whether the body applying for registration is religious or whether it represents non-religious worldviews and convictions. Secondly, the committee is to assess the nature of the activities of the organization in relation to basic rights and human rights. Third, the committee assesses whether it complies with the restrictions imposed on economic activities in the Freedom of Religion Act and checks that the association is not organized in military fashion and that its purpose is not to organize drills in the use of firearms. The tasks of the committee of experts are limited solely to the assessment of the purpose and types of activities of an association that has made notification of foundation or later altered the order of association on the basis of subsection 7 §.

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3. Tax regulations and state aid for churches and registered religious associations

Approx. 84 per cent of the Finnish population belong to the Evangelical

Lutheran Church, approx. 1.1 per cent to the Orthodox Church and approx. 1.1 per cent to registered religious associations. Membership of registered religious associations can be seen in more detail in the appended table.16

The most important source of income of Evangelical Lutheran and Orthodox parishes is church tax, which is levied from parishioners on the basis of taxable income in municipal tax. The levy of tax is carried out by the state tax authorities, but parishes pay a proportion of the expenses involved.

In addition, parishes receive a share of the proceeds of corporation tax. In connection with the reform of corporation taxation that came into force at the beginning of 1993 parishes’ share of corporation tax was replaced by the previous obligation of associations to pay church tax. Behind the obligation of associations to pay church tax was the fact that the Church did not from the outset make a distinction in taxation between natural and legal persons. Later the obligation of associations to pay church tax and parishes’ share of corporation tax began to be justified by the fact that parishes provide a wide variety of social services.17 As far as burials are concerned, parishes’ share of corporation tax is linked to the responsibility of Evangelical Lutheran parishes for the maintenance of public cemeteries, also in the preliminary work of the new Cemeteries Act.18

Parishes’ present share of the proceeds of corporation tax has been altered several times during the time that the Income Tax Act has been in force. At present parishes’ share is 1.94 per cent. The adjoined table sets out the amount of corporation tax income received by parishes. Parishes’ share is divided between Evangelical Lutheran and Orthodox parishes so that Evangelical Lutheran parishes receive 99-92 per cent and Orthodox parishes 0.08 per cent.

Parishes’ corporation tax income by payment, mill. euros Year 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Average 39 59 85 106 149 144 130 127 93 89 89 101 corporation tax income (source: VM, corrected to 2003 value on the basis of the cost of living index)

16 See Appendix 1. 17 E.g. Church and State committee (KM 1977:21), set up by the Ministry of Education’s ”Church and State” working group (KM 1982:47), the ”State and Church” economic relations committee (KM 1997:7) and the ”Religious freedom” committee (KM 2001:1). 18 HE 204/2002 vp. See in more detail the report of the ”State aid to registered religious communities” working group, memoranda and reports of the Ministry of Education working group 2005:15

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The expenditure of the central and diocesan administration of the Orthodox

Church is paid principally from state funds. In addition, the government has supported some Orthodox parishes and institutions with state aid. The 2005 budget of the Central Church Board assigns 1.787 million euros to activities and to the aforementioned State Aid 152,000 euros.

Registered religious associations do not at present receive financial aid from the government to support their activities. Associations fund their activities principally through donations, membership fees and their own fund-raising activities.

On May 9th, 2005 the Ministry of Education’s ”State aid to registered religious associations” working group delivered its report on the extension of state financial aid to include not only the Evangelical Lutheran and Orthodox Churches but also registered religious associations. The working group introduced a proposal to put the system into practice.

According to the proposal of the working group, state aid could be received by registered religious associations on a numerical basis according to the number of members. State aid would not be granted to associations with fewer than one hundred members and not to associations that in fact do not have any or have very few activities. The goal is to provide clear criteria concerning aid so that as little assessment-based discretion as possible is required.

The working group considers that state aid to registered religious associations does not require special regulation. In the granting of state aid the State Aid Act would be applied. According to the proposal of the working group, the amount of state aid would be decided in connection with the annual government budget. The starting-point might be the amount of corporation tax income received by Evangelical Lutheran parishes with burial expenses deducted. Then the amount of state aid would be approx. 5-7.7 euros per member of the association. The working group also proposes for consideration whether state aid authorities might be at a lower level than the Ministry of Education, for example one of the provincial administrative boards.

4. The central functions of religious associations – the right to

solemnize matrimony, burials and exemptions concerning the law on working hours

The right to solemnize matrimony

The right to solemnize matrimony of the Evangelical Lutheran and Orthodox Churches is directly based on law. Permission has been granted to other religious associations under subsection 14 § of the Matrimony Act (234/1929) by the Ministry of Education. The right to solemnize matrimony may be granted, however, only to registered religious associations. The right to solemnize matrimony is granted to associations and not to individuals.

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Burials

The maintenance of cemeteries in Finland has traditionally been the responsibility of the Evangelical Lutheran and Orthodox Churches. In the new Cemeteries Act (HE 204/2002 vp) the management of burials is divided into two: cemeteries maintained by the Evangelical Lutheran Church or parish federations and other cemeteries. Other cemeteries are maintained by the Orthodox parish, the government, the municipality or federation of municipalities or by a registered religious association or other registered body or trust.

Evangelical Lutheran parishes and parish federations are ultimately responsible for the maintenance of public cemeteries. This also applies to the maintenance of non-religious burial areas, which are intended as a religiously neutral option for those who for religious or ideological reasons do not wish to be buried in an Evangelical Lutheran cemetery. Providing a burial plot in a non-religious area always requires a specific request. It is accordance with good administrative practice and the principle of freedom of religion that the relatives of the deceased are informed of this possibility, unless the will of the deceased person is unclear. Also, a deceased person who did not belong to the Evangelical Lutheran Church must be buried in a religious Evangelical Lutheran cemetery unless the burial plot is specifically requested in a non-religious area. A member of an Evangelical Lutheran Church can upon request be buried in a non-religious area. A non-religious burial area is religiously neutral so that the parish or parish federation acts solely as the instance responsible for the technical maintenance of the area.

Providing a burial plot in a non-religious burial area is the legal public duty of the parish or parish federation maintaining the cemetery. This being the case, the person or persons responsible for the maintenance of the cemetery are obligated by the constitutional rights of the individual and the general principles of legal protection in administration.

The Evangelical Lutheran parish or parish federation is also responsible if requested to provide a burial plot for a deceased person whose domicile under the Domicile Act (201/1994) was at the time of death located in the parish or in the area of the parish federation. It is also responsible for providing a burial plot for a Finnish citizen who at the time of death was living abroad and whose last domicile, as specified in the Domicile Act, before moving abroad was in the parish or in the area of the parish federation.

An Orthodox parish, the government, a municipality or federation of municipalities may maintain a cemetery without special permission. To establish a cemetery all that is required under subsection 13 § of the Health Protection Act is notification and possible construction, operation and landscape work permits.

A registered religious association or other registered body or trust may also maintain a cemetery. Subsection 8 § 1 of the Cemeteries Act lists bodies and trusts that may maintain cemeteries with the permission of the provincial administrative

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board. The regulation applies in practice to all registered bodies and trusts. For the sake of clarity, the clause specifically mentions registered religious associations and their registered local bodies for whom the possibility of establishing a cemetery is especially important. Before permission is granted the applicant must demonstrate its ability to maintain the cemetery correctly and prove that other requirements for establishing a cemetery are fulfilled. A cemetery may not be maintained for financial gain. Crematoria and cremation

The provincial administrative board may grant to the municipality, an Evangelical Lutheran or Orthodox parish or parish federation, a registered religious association or its parish or branch or other registered body or trust permission to maintain a crematorium. Before permission is granted the applicant must demonstrate its ability to maintain a crematorium correctly. The requirement for the granting of a maintenance permit is that the crematorium has an environmental permit issued under the Environmental Protection Act (86/2000). A crematorium may not be maintained for financial gain.

In addition to the Freedom of Religion Act, there are several different types of regulations concerning burials. Subsection 9 of the Health Protection Act (763/1994) and subsection 7 of the Health Protection Statute (1280/1994) contains regulations on prevention of health hazards caused by burials. Church law and the church constitution (1055/1993) contain some regulations concerning the cemeteries of the Evangelical Lutheran Church.19 The Orthodox Church Act and the statute of the same name (179/1970) similarly contain some regulations concerning Orthodox cemeteries.20

Exemptions from employment laws

Most of the personnel of the Evangelical Lutheran and Orthodox Churches are in full-time permanent employment, but there are also staff under contract. All personnel of registered religious of associations are under contract. All churches and religious bodies are equally affected by the law on general contracts. As far as the Lutheran Church is concerned, however, there exists a working hours statute, which allows employees exceptional working hours. In the Church, parish or parish federation personnel are either full-time permanent employees or they work under contract. Under church law (CL 6 subsection 1 §) holders of church, parish or

19 Evangelical Lutheran cemeteries are mentioned in clause 17 of church law, which contains regulations on establishing cemeteries, the right to burial, maintenance of graves and monuments, and the church constitution . 20 These pertain to, among other things, maintenance of cemeteries and graves, the loss of right to a grave, burial registers and the establishing of cemeteries.

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parish federation posts and persons in permanent employment connected with public worship, occasional services, diaconia or education may, however, only be members of the Evangelical Lutheran Church. The diocesan chapter may grant exemption from this qualification requirement for a priest or pastor of another Christian church or religious association if the General Synod has approved an agreement with that church or religious association on reciprocity of ministry. Exemption may be granted temporarily or for a set period. (28.12.2001/1473). The working hours statute on exceptional working hours also applies to other religious associations.

The law of equal opportunities also applies to churches and religious associations, where Article 4 of the directive has been implemented, outlawing all discrimination, including on the basis of religion, and this applies to all member states of the European Union. Setting a different status is not, however, considered discrimination in the workplace when it is based on job qualifications. The law of equal opportunities is also obligatory on the Church. The provisions of the law of equality do not, however, apply to the Evangelical Lutheran and Orthodox Churches and the religious activities of other religious associations.

5. A registered religious association as an agent under public law –

contracts, property, acting as an employer, restrictions The right to make commitments and contracts

Subsection 17 § of the Freedom of Religion Act applies to the legal implications of the registration of religious associations. A registered religious association – as has been stated – is an independent special type of legal subject, such as a registered association, corporation, co-operative or trust. A registered religious association may thus in its own name acquire rights, enter into commitments and be a litigant in court and before other authorities. Members of the association do not have personal responsibility for financial and other commitments made in the name of the association. The clause corresponds to the legislation in force. The clause is also applied to local communities registered as religious associations, which thus also have legal capacity in the sense mentioned in this clause. The possibility of owning property

When a religious association gains legal person status, it may acquire property, enter into commitments and be a litigant in court and before other authorities, providing that it is entered in the register of religious associations. An association order must under subsection 14 § of the Freedom of Religion Act also contain stipulations on the maintenance and inspection of association properties. No other regulations on the financial administration of the association are contained in the

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Freedom of Religion Act. The association is not required to keep accounts unless it conducts business or engages in professional activities.

An association order must also contain stipulations on possible dissolution of the association and the procedure to be followed with respect to its property in the event that the association cease to exist. Acting as an employer

Registered religious bodies as employers have the same status as any other legal person, with all the associated rights and obligations. Possible restrictions

The new Freedom of Religion Act successfully removed restrictions. In this context it suffices to refer to the abolished law on the right of Finnish citizens to serve their country irrespective of religious affiliation (173/1921). Under the old 1923 Freedom of Religion Act a person who did not belong to the Evangelical Lutheran Church, an Evangelical Lutheran association or the Orthodox Church, might not give confessional religious education. The Ministry of Education might, however, grant exemption to provide religious education also in the aforementioned cases, having consulted the diocesan chapter on the matter of instruction in the Evangelical Lutheran faith and the Orthodox Episcopal conference on the matter of instruction in the Orthodox faith. Teachers of other religions were not required to be members of the churches or religious groups in question.

When the government introduced the bill it was observed that in the new Freedom of Religion Act, education being based on law and approved curricula, the requirement that the teacher of religious education should belong to the Church was ill at odds with the religious freedom enshrined in the constitution. Also, from the point of view of equal opportunities, such a restriction to only two religious associations was difficult to justify. Therefore the law concerning the right of Finnish citizens to serve their country irrespective of their religious affiliation was abolished. Similar regulations were omitted from the prospectus law and the High Schools Act. According to this bill, all persons who fulfil the special qualification requirements for teachers of religious education under the relevant legislation are qualified to give basic education and religious education in high schools irrespective of whether they are members of the Evangelical Lutheran or Orthodox Churches. The bill emphasizes the principle that the content of religious education is regulated by legislation and the syllabus, not by the teacher’s personal religious views.

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Literature and Sources Ehdotus laiksi ortodoksisesta kirkosta. [Proposal for an Orthodox Church Act] 2004 Opetusministeriön työryhmämuistioita ja selvityksiä [Working Group

Memoranda and Studies of the Ministry of Education, Finland] 2004:32. Hautaustoimilaki [The Cementeries Act] 2002 Hallituksen esitys [Government Bill] 204/2002 vp. Kirkko ja valtio -komitean mietintö [Report of the Church and State Committee] 1977 Komiteamietintö [Committee Report] 1977:21. Helsinki 1977. Kirkkojärjestyskomitean mietintö [Report of the Committee on Church Order] 1979 Pieksämäki. Perustuslaki [The Constitution of Finland] 2000 See: http://www.eduskunta.fi. => in English/ The Constitution of Finland Rekisteröityjen uskonnollisten yhdyskuntien valtionavustustyöryhmän mietintö [Report of the Working Group on State Subsidy for Registered Religious Communities] 2005 Opetusministeriön työryhmämuistioita ja selvityksiä [Working Group

Memoranda and Studies of the Ministry of Education, Finland] 2005:15. Seurakuntien yhteisövero-osuuden korvaamista selvittävän työryhmän muistio [Memorandum of the Working Group Studying the Substitution of the Parishes’ Share of the Corporation Tax] 2003 Valtiovarainministeriön työryhmämuistioita [Working Group Memoranda

of the Ministry of Finance, Finland ] 2002:9. Terveydensuojeluasetus [Health Protection Statute] 1994 Hallituksen esitys [Government Bill] 1280/1994 vp. Terveydensuojelulaki [Health Protection Act] 1994 Hallituksen esitys [Government Bill] 763/1994 vp. Uskonnonvapauslaki [The Freedom of Religion Act] 2004 Hallituksen esitys [Government Bill] 170/2002 vp. Valtion ja kirkon taloussuhteita käsitelleen toimikunnan mietintö [Report of the Committee on Financial Relations between State and Church] 1997 Komiteamietintö [Committee Report] 1997:7. Helsinki 1997. Ympäristösuojelulaki [Enviromental Protection Act] 2000 Hallituksen esitys [Government Bill] 86/2000 vp.

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APPENDIX 1 Registered religious associations Number of members 31.12.2004 Name of the Community Jehovah's Witnesses 18224 The Evangelical Free Church 13471 Catholic Church in Finland (Diocese of Helsinki) 8083 Seventh-day Adventist Church of Finland 4030 The Church of Jesus Christ of Latter-day Saints (The Mormons) 3309 The Baptist community of Finland 1562 Pentecostalic Church of Finland 1240 Orthodox St. Nicolas church in Helsinki 1181 Jewish Community of Helsinki 1072 Finlands svenska baptistsamfund 881 Helsinki Islamic Center 778 The Methodist Church of Finland 644 The Islamic Society of Tampere 615 Finlands svenska metodistkyrka 603 Islamic-congregation of Finland 591 The Evangelical-Lutheran Free Parish Union (Suomen vapaa evankelisluterilainen seurakuntaliitto) 537 Bahai community of Finland 493 The Islamic Society of Finland 446 The private Greek-Catholic Church in Vyborg (Pokrova) 340 Confessional Lutheran Church of Finland (Suomen Tunnustuksellinen Luterilainen Kirkko) 305 Lutheran Community of Word (Luterilainen Sanan yhdyskunta) 169 The Liberal Catholic Church Province of Finland 132 Jewish Community of Turku (Åbo) 131 The Islamic Society of Savo 115 The Anglican Church in Finland 97 Islamic-congregation of Tampere 85 ANJUMAN-E-ISLAHUL-MUSLIMEEN OF TURKU 83 The Christian Community in Finland 76 Finnish Islamic Center 74 International society for Krishna Consciousness in Finland 64 The Shiia Muslims of Finland 51 Vörå Frikyrkoförsamling 46 The Islamic Society of Central Finland 41 The Buddish Dharma Center 40 The Islamic Rahma Center in Finland 39

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Missionkyrkan i Finland 35 The Congregation of God (Jumalan seurakunta) 30 New Apostolic Church of Finland 29 Linkkiseurakunta 28 Finlands svenska pingstsamfund 26 Spaso-Preobrazenskaja 24 Islam and Love 20 The Islamic Society of Al-Risala 20 The Islamic Society of Al-Hudaa less than 20 The Kimbangu Church (kimbangun kirkkokunta) less than 20 The Church of Christian Acts (Kristillisten Tekojen Kirkko) less than 20 The Islamic Society of Northern Finland less than 20 Redeemed Christian Church of God less than 20 Seventh-day Adventist Church Reformation movement less than 20 Friends of the Truth (Totuuden Ystävät) less than 20 TOGETHER: circa 59000

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LA JURISPRUDENCE CONSTITUTIONNELLE EN MATIÈRE DE LIBERTÈ DE RELIGION ET DE

CROYANCE

Pierre JOXE, ancien ministre membre du Conseil constitutionnel

A. STATUT DE L’INDIVIDU

I. L’essence et le contenu des libertés religieuses (de religion) et de la

liberté de conscience.

1 à 4. La liberté de conscience et de culte est garantie par l’article 10 de la Déclaration des droits de l’homme et du citoyen du 26 août 1789, la Déclaration universelle des droits de l’homme de 1948, la Convention européenne des droits de l’homme et des libertés fondamentales du 4 novembre 1950, l’article 1er de la Constitution du 4 octobre 1958, l’article 1er de la loi du 9 décembre 1905 portant séparation des Eglises et de l’Etat (V.doc A-I). Par ailleurs, dans sa décision n° 77-87 DC du 23 novembre 1977, le Conseil constitutionnel a affirmé que « la liberté de conscience doit être regardée comme l’un des principes fondamentaux reconnus par les lois de la République ».

II – La protection des valeurs religieuses en tant que droits fondamentaux de l’homme dans la jurisprudence des tribunaux

constitutionnels, d’après les exemples choisis.

1, 2 La protection des valeurs religieuses et des croyants contre la discrimination des convictions religieuses résulte des textes déjà cités.

4. La manifestation des sentiments religieux est libre aux personnes privées, dans le cadre des lois en vigueur. La jurisprudence du Conseil d’Etat souligné la valeur constitutionnelle de la liberté d’expression et de manifestations des croyances en rattachant ce principe à la laïcité. Dans son avis du 27 novembre 1989, le Conseil d’Etat a reconnu aux élèves de l’enseignement public « le droit d’exprimer et de manifester leurs croyances religieuses à l’intérieur des établissements scolaires » (V.doc A-II-4). Dans son arrêt Kherouaa du 2 novembre 1992, le Conseil d’Etat souligne que « la liberté d’expression [est] reconnue aux élèves et garantie par les principes de neutralité et de laïcité de l’enseignement public ». Il autorise le port de signes à caractère religieux.

Néanmoins, des limitations à ces manifestations sont possibles, si elles sont fondées sur un motif d’intérêt général. Ainsi, dans son avis du 27 novembre 1989 déjà cité (V.doc A-II-4), le Conseil d’Etat a considéré que la « liberté d’exprimer et

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de manifester [les] croyances religieuses à l’intérieur des établissements scolaires » ne permettait pas « qu’il soit porté atteinte aux activités d’enseignement, au contenu des programmes et à l’obligation d’assiduité. Il en a déduit que « son exercice peut être limité dans la mesure où il ferait obstacle à l’accompagnement des missions dévolues par le législateur au service public de l’éducation »

Enfin, l’expression de toute opinion religieuse philosophique ou politique est interdite aux fonctionnaires et agents publics. Un avis du 3 mai 2000 du Conseil d’Etat, Mlle Marteaux a permis la réaffirmation du principe de laïcité quant à l’obligation de réserve s’imposant aux agents publics (V.doc A-II-4-b).

5. b) L’usage de symboles religieux par les personnes privées dans les lieux publics n’est pas interdit. Il n’est limité que par les lois et règlements en vigueur par ailleurs.

5. c) L’usage de symboles religieux par les personnes privées dans l’enceinte des administrations n’est pas interdit. Il a été limité cependant par la loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics (V.doc A-II-5-c). En revanche, il est directement interdit à l’administration par l’article 28 de la loi du 9 décembre 1905 : « Il est interdit, à l’avenir, d’élever ou d’apposer aucun signe ou emblème religieux sur les monuments publics ou en quelque emplacement public que ce soit, à l’exception des édifices servant au culte, des terrains de sépulture dans les cimetières, des monuments funéraires, ainsi que des musées ou expositions ». Néanmoins, les emblèmes religieux préexistant à la promulgation de la dite loi peuvent rester en place, ainsi qu’en Alsace et en Moselle où la loi du 9 décembre 1905 n’est pas applicable.

6. b) Il n’y a pas d’effet civil d’un mariage religieux, celui-ci ne pouvant être célébré avant le mariage civil. En effet, aux termes de l’article 433-21 du nouveau code pénal « tout ministre d’un culte qui procédera, de manière habituelle, aux cérémonies religieuses de mariage sans que ne lui ait été justifié l’acte de mariage préalablement reçu par les officiers de l’état civil sera puni de six mois d’emprisonnement et de 50 000 F (7622,5 €) d’amende ». L’article 433-22 du même code prévoit en outre un certain nombre de peines complémentaires.

6. c) Corollairement, il n’y a pas d’effet civil d’un « divorce » religieux. 6. d) Les parents ont toute latitude d’élever leurs enfants conformément à leurs

convictions. L’article 2 du 1er protocole additionnel à la Convention européenne des droits de l’homme garantit en effet que « l’Etat…respectera le droit des parents d’assurer cette éducation et cet enseignement conformément à leurs convictions religieuses ou philosophiques ». Bien entendu, cette garantie s’exerce dans le cadre des lois existantes. Par conséquent, le fait, au motif de convictions religieuses, de soustraire l’enfant à l’instruction obligatoire, de ne pas répondre aux obligations de soins ou de vaccination, de ne pas pourvoir à ses besoins matériels etc… peut être poursuivi.

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Ainsi, des jurisprudences ont estimé que l’appartenance de parents d’une potentielle famille d’accueil au mouvement des témoins de Jéhovah pouvait l’exclure de l’agrément pour adoption « en raison des risques d’isolement social et de marginalisation » auxquels serait exposé l’enfant (CAA Douai, 3 mai 2001). En revanche, la Cour européenne des droits de l’homme (Palau-Martinez c/ France, 16 décembre 2003) estime qu’il y a eu violation de l’article 8 (droit au respect de la vie familiale) combiné avec l’article 14 (interdiction de la discrimination) de la Convention européenne des Droits de l’Homme, dans le cas d’une mère divorcée, appartenant aux témoins de Jéhovah, à qui la Cour d’appel avait retiré la garde de ses enfants, au motif que les règles éducatives imposées par [les témoins de Jéhovah] aux enfants de leurs adeptes étaient « essentiellement critiquables en raison de leur dureté, de leur intolérance et des obligations imposées aux enfants de pratiquer le prosélytisme ». La CEDH, pour sa part conclut « qu’en modifiant le lieu de résidence des enfants, la cour d’appel s’est prononcée sur les conditions dans lesquelles chacun des parents les élevait. Pour ce faire, elle tint compte des éléments soumis par les parties, et il apparaît qu’elle accorda une importance déterminante à la religion de la requérante, critiquant sévèrement les principes d’éducation qui seraient imposés par cette religion. Selon la Cour, la juridiction d’appel opéra ainsi entre les parents une différence de traitement fondée sur la religion de la requérante » (V.doc A-II-6-d).

7. Il résulte de la loi du 9 décembre 1905 que l’Etat ne peut intervenir dans l’organisation des cultes. Chaque culte s’organise donc comme il l’entend. Aux termes de la loi du 2 janvier 1907 concernant l’exercice public des cultes, le culte public peut s’exercer en dehors de toute structure juridique (par voie de réunions tenues sur initiatives individuelles), par association déclarée (loi du 1er juillet 1901) ou par les associations cultuelles prévues par le titre IV de la loi du 9 décembre 1905. Cette disposition a cependant introduit une certaine ambiguïté, puisque le culte peut être ainsi exercé par des associations qui n’ont pas la qualité d’associations cultuelles.

III – La liberté de conscience et de religion dans des situations spéciales

Dès le deuxième alinéa de l’article 2 de la loi du 9 décembre 1905, les aumôneries ont constitué une exception à l’interdiction de subventionner ou salarier les cultes prévues par le premier alinéa.

1 à 3. (V.doc A-III-1 à 3) Extrait de « Droit des cultes » Ed. Dalloz Juris Associations.

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B. STATUT DES COMUNAUTÉS RELIGIEUSES

I. Les communautés religieuses et l’Etat : modèle général de relations constitutionnelles.

1. Aux termes de l’article 1er de la Constitution, la France est une République

indivisible, laïque, démocratique et sociale. Il n’y a donc pas de définition constitutionnelle des relations entre l’Etat et les cultes. On a coutume de dire que la République ne reconnaît aucun culte, mais qu’elle les connaît tous (art. 2 de la loi du 9 décembre 1905 : « La République ne reconnaît, ne salarie ni ne subventionne aucun culte », mais, article 1er : « La République assure la liberté de conscience. Elle garantit le libre exercice des cultes… »).

II. La liberté de création et d’activité des communautés religieuses.

1 et 2. Les cultes s’organisent librement et les cultes peuvent donc s’exprimer

en dehors de toute structure juridique. Néanmoins, la loi a prévu pour ceux qui le désirent deux structures spécifiques, répondant aux besoins de la plupart des cultes : la congrégation, prévue par le titre III de la loi du 1er juillet 1901 relative au contrat d’association et l’association pour l’exercice du culte, prévue par le titre IV de la loi du 9 décembre 1905.

- La congrégation rassemble des personnes d’une même confession, soumises à des vœux, vivant en communauté et portant un habit monastique (V.doc B-II-1-a). Sa création passe par un décret de reconnaissance légale du Premier ministre, sur avis conforme du Conseil d’Etat. Le dossier est instruit par le Ministre de l’intérieur. La reconnaissance légale dote la congrégation d’une personnalité morale et lui donne accès à certains avantages fiscaux et à la possibilité de percevoir des libéralités.

- L’association cultuelle est une association de fidèles laïcs se réunissant pour célébrer un culte public (V.doc B-II-1-b). Sa création implique le dépôt d’un dossier auprès du préfet du département où siège l’association. L’association pour l’exercice du culte (couramment dénommée « association cultuelle ») est dotée d’une personnalité morale, accède à certains avantages fiscaux et à la possibilité de percevoir des libéralités.

3. L’activité de ces groupements ne doit pas donner lieu à troubles de l’ordre public et les comptes sociaux doivent pouvoir être à tout moment contrôlés par l’administration fiscale.

4. Les nominations internes à des fonctions ecclésiastiques sont de l’unique ressort du culte considéré. Il existe cependant deux exceptions à ce principe :

- nomination des évêques et archevêques catholiques. En vertu de « l’aide-mémoire Gasparri », du mois de mai 1921, faisant suite à la

séparation des Eglises et de l’Etat instaurée par la loi du 9 décembre 1905, le gouvernement français est consulté par le Saint-Siège dès qu’un évêque ou un

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évêque coadjuteur est pressenti par celui-ci pour occuper un siège épiscopal. La France dispose en effet du pouvoir d’émettre des observations si elle estime que la personnalité du prélat pressenti suscite des réserves sur le plan strictement politique (V.doc B-II-4-a) ;

- nomination des ministres des cultes reconnus d’Alsace et de Moselle (catholiques, protestants luthériens, protestants réformés, juifs). Dans ces trois départements où la loi de Séparation n’est pas applicable, les ministres du culte sont des agents publics, rémunérés et nommés par l’Etat (V.doc B-II-4-b).

5. L’interface entre le « droit interne » de la congrégation légalement reconnue ou de l’association cultuelle et le droit positif est constituée par les statuts de la congrégation ou de l’association cultuelle, qui doivent être respectés par celles-ci et passent par une approbation administrative (V. B-II-1 et 2 ci-dessus). Ces statuts prévoient notamment le mode d’élection des dirigeants. Pour le reste tout litige interne ou entre associations ou congrégations ressortit au droit commun. L’Etat ne saurait les arbitrer ou s’y engager.

III. La coopération de l’Etat et des communautés religieuses.

1. Il n’existe pas de forme de « coopération » entre l’Etat et les cultes prévue

par les textes, mais dans la pratique, le dialogue entre l’Etat et les cultes est constant. Ce dialogue constitue d’ailleurs l’une des missions du Bureau central des cultes du ministère de l’intérieur.

2. Les seules possibilités de subventions publiques aux associations cultuelles sont les suivantes :

- l’article 13 de la loi du 9 décembre 1905, dans sa rédaction issue de la loi du 9 avril 1908, autorise les communes à « engager les dépenses nécessaires pour l’entretien et la conservation des édifices dont la propriété leur est reconnue par la présente loi ».

- l’article 19 de la même loi, dans sa rédaction issue de la loi du 25 décembre 1942, autorise les communes à engager les dépenses nécessaires aux réparations des édifices du culte propriété d’une association cultuelle, en considérant que « ne sont pas considérées comme subventions les sommes allouées pour réparations aux édifices affectés au culte public, qu’ils soient ou non classés monuments historiques ».

- les articles L.2252-4 et L.3231-5 du code général des collectivités territoriales permettent aux communes et aux départements de garantir les emprunts contractés par les associations cultuelles pour la construction d’édifices « répondant à des besoins collectifs de caractère religieux » dans les agglomérations en voie de développement. Cela permet aux communes et aux départements de donner un petit « coup de pouce » à l’expression cultuelle dans une commune en train de se développer.

- une autre disposition du code général des collectivités territoriales, le premier alinéa de l’article L.1311-2, autorise les baux emphytéotiques administratifs

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consentis aux associations cultuelles « en vue de l’affectation à une association cultuelle d’un édifice ouvert au culte public ». Une commune peut donc louer pour une longue durée un bien immobilier grâce auquel l’association pourra célébrer son culte.

3. a) Si l’Etat garantit le libre exercice du culte et la liberté de conscience et d’expression, il ne peut, en régime de laïcité, promouvoir les valeurs religieuses.

b) Voir II-5-b et c ci-dessus. c) Les symboles religieux ne sont jamais utilisés par l’Etat en tant que tel sur

aucun support ni en aucune circonstance. Il est rappelé que les arbres de Noël n’ont aucun caractère religieux.

4. Sans objet.

IV. Les communautés religieuses, l’enseignement et l’instruction religieuse.

Cette section est de la compétence du ministre de l’éducation nationale. On peut

répondre néanmoins brièvement sur certains points. 2. a) l’enseignement public est uniquement laïc. b) Il n’y a pas d’instruction religieuse dans les écoles, collèges et lycées. Dans

les pensionnats, lieux dont les élèves ne peuvent sortir à la fin de la classe, l’organisation d’une aumônerie à l’intérieur de l’établissement est possible (V. A-III ci-dessus), les cours facultatifs d’instruction religieuse étant dispensé par un aumônier, qui n’est pas rémunéré par l’administration.

En Alsace et en Moselle, les cours d’instruction religieuse des cultes reconnus peuvent être dispensés à l’intérieur des établissements scolaires. Ils ne sont pas obligatoires.

f) le port d’emblèmes religieux à l’école, au collège et au lycée est limité, comme il a été dit au A-II-5-c ci-dessus. Il ne l’est pas à l’Université.

3. c) Il existe des écoles privées sous contrat avec l’Education nationale.

V. Restitution du patrimoine. Sans objet.

VI. Possible déviations des faits par rapport aux normes

La question est trop vague pour qu’il y soit répondu précisément.

C. LA LÉGISLATION ET LE DIALOGUE ENTRE L’UNION

EUROPÉENNE ET LES ÉGLISES ET COMMUNAUTÉS RELIGIEUSES.

Concerne l’Union européenne.

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ANNEXE

DECLARATION DES DROITS DE L'HOMME ET DU CITOYEN 1789

Art. 10 – Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l'ordre public établi par la loi.

LOI DU 9 DECEMBRE 1905 CONCERNANT LA SEPARATION DES EGLISES ET DE L'ETAT

Titre 1er PRINCIPES

Art. 1er- La République assure la liberté de conscience. Elle garantit le libre exercice des cultes sous les seules restrictions édictées ci-après dans l'intérêt de l'ordre public. Art. 2 - La République ne reconnaît, ne salarie ni ne subventionne aucun culte. En conséquence, à partir du 1er janvier qui suivra la promulgation de la présente loi, seront supprimées des budgets de l'Etat, des départements et des communes toutes dépenses relatives à l'exercice des cultes. Pourront toutefois être inscrites auxdits budgets les dépenses relatives à des services d'aumônerie et destinées à assurer le libre exercice des cultes dans les établissements publics tels que lycées, collèges, écoles, hospices, asiles et prisons.

DECLARATION UNIVERSELLE DES DROITS DE L'HOMME 1948

Art. 18 - Toute personne a droit à la liberté de pensée, de conscience et de religion ; ce droit implique la liberté de changer de religion ou de conviction ainsi que la liberté de manifester sa religion ou sa conviction seul ou en commun, tant en public qu'en privé, par l'enseignement, les pratiques, le culte et l'accomplissement des rites. CONVENTION EUROPEENNE DE SAUVEGARDE DES DROITS DE L'HOMME

ET DES LIBERTES FONDAMENTALES 1950

Art. 9 - Toute personne a droit à la liberté de pensée, de conscience et de religion ; ce droit implique la liberté de changer de religion ou de conviction, ainsi que la liberté de manifester sa religion ou sa conviction individuellement ou collectivement, en public ou en privé, par le culte, l'enseignement, les pratiques et l'accomplissement des rites. La liberté de manifester sa religion ou ses convictions ne peut faire l'objet d'autres restrictions que celles qui, prévues la loi, constituent des mesures nécessaires, dans une société démocratique, à la sécurité publique, à la protection de l'ordre, de la santé ou de la morale publiques ou à la protection des droits et libertés d'autrui.

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CONSTITUTIONAL JURISPRUDENCE IN THE AREA OF FREEDOM OF RELIGION AND BELIEFS

Dr. Elke Luise BARNSTEDT

Director of the German Federal Constitutional Court

The essential legal bases of the protection of the freedom of religion and beliefs are contained in the German constitution (the Basic Law, Grundgesetz – GG) in its Articles 4 and 140 in conjunction with Articles 136 to 139 and 141 of the Weimar Constitution (Weimarer Reichsverfassung – WRV). These provisions regulate the relation between the state and the individual, and between the state and the churches and religious communities. Article 4 subsections 1 and 2 of the Basic Law guarantees the freedom of faith and the freedom to profess a religion or particular ideology1.

The incorporation of Articles 136 to 139 and 141 of the Weimar Constitution into the Basic Law, through to Article 140 of the Basic Law, is a particularity the reason for which is the fact that the Parliamentary Council2 was not able to agree on a reorganisation of the relation between state, religion and the churches3. For this reason, the above-mentioned Articles of the Weimar Constitution were incorporated into the Basic Law pursuant to Article 140 of the Basic Law. They have the same statutory quality as the other provisions of the Basic Law4. In today’s view, Article 140 of the Basic Law in conjunction with Articles 136 to 139 and 141 of the Weimar Constitution regulates above all the relation between the state and the churches or, respectively, the religious communities. To the extent that these provisions regulate individual rights of individual citizens – Article 136 of the Weimar Constitution, for instance, regulates religious freedom in the shape of the guarantee of the practice of religion in subsection 1, the guarantee of the eligibility for public offices independently of religious creed in subsection 2, the guarantee of the non-disclosure of religions convictions in subsection 3 and the 1 See also Hassemer and Hömig, Die Rechtsprechung des Bundesverfassungsgerichts im Bereich der Bekenntnisfreiheit, in Europäische Grundrechte-Zeitschrift – EuGRZ 1999, 525. 2 After the capitulation of Germany and in the course of the exercise of state power after the failure of the negotiations of the four victorious allies on the reorganisation of Germany, the military governors of the three Western zones of occupation called upon the Minister-Presidents of the eleven West German Länder (states) to convene a constituent assembly. Instead, the West German Länder elected a representative body, the Parliamentary Council, which received the mandate to draw up a constitution. As regards the further steps for creating the Basic Law, see Hömig, in: Hömig (ed.), Grundgesetz [commentary on the Basic Law], 8th edition, 2007, Introduction. 3 Bergmann, in: Hömig, see footn. 2, Art. 140, marginal no. 1. 4 Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 111, 10 (50).

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negative freedom of worship in subsection 4 –, they are virtually insignificant. All these guarantees and delimitations already result from more specific provisions of the constitution that have not been incorporated from the Weimar Constitution5. For this reason, Article 140 of the Basic Law in conjunction with Articles 136 to 139 and 141 of the Weimar Constitution alone do not grant, according to the Federal Constitutional Court’s case-law, fundamental rights that may be asserted by means of a constitutional complaint6.

Other provisions in the Basic Law that protect the freedom of religion are: Article 1 subsection 1 of the Basic Law in the shape of human dignity, of which the freedom of religion is a particular manifestation7, Article 3 subsection 3 sentence 1 of the Basic Law, which, among other things, prohibits disadvantaging or favouring anyone because of his or her faith or religious opinions. Especially as regards the enjoyment of civil and political rights, eligibility for public office, and the rights acquired in the civil service, Article 33 subsection 3 of the Basic Law provides that they shall be independent of religious denomination. According to Article 33 subsection 3 sentence 2 of the Basic Law, no one may suffer disadvantage by reason of his or her adherence to a denomination or ideological persuasion. Article 7 of the Basic Law – as the fundamental constitutional provision on the education system – contains, among other things, regulations on religious instruction and on the establishment of (state-run and private) denominational and ideological schools8. Article 7 subsection 2 of the Basic Law explicitly provides that the persons entitled to bring up a child have the right to decide whether the child shall receive religious instruction.

5 Bergmann, see footn. 2, Art. 140, marginal nos. 3 et seq. 6 BVerfGE 19, 129 (135). 7 BVerfGE 33, 23 (28 f.); 35, 366 (376). 8 Hassemer/ Hömig, footn. 1, p. 526.

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A. STATUS OF THE INDIVIDUAL

Holders of the fundamental right of freedom of religion from Article 4 of the Basic Law are all human beings (individual freedom of religion)9. To the extent that children have not reached the age of personal determination in religious matters10, they are represented by their parents. The fundamental right, however, also protects religious and ideological communities11 (collective freedom of religion). These include not only the churches and religious or ideological communities but also associations, such as for instance legal persons whose objective is not all-embracing care, but only partial care for, or furtherance of, the religious or ideological life of their members12.

I. Essence and content of freedom of religion (faith) and freedom of

conscience

The freedom of faith and of conscience and the freedom of creed religious or ideological are cited with equal rank, and are equally protected in Article 4 subsection 1 of the Basic Law. Article 4 subsection 2 of the Basic Law emphasises once more the inviolability of the practice of religion although it is already contained in subsection 113. Both subsections constitute a uniform fundamental right14, which comprehensively guarantees religious freedom. Moreover, Article 4 subsection 3 sentence 1 of the Basic Law explicitly guarantees that no one may be compelled against his conscience to render military service involving the use of arms.

According to the Federal Constitutional Court’s case-law, already human dignity, which is protected in Article 1 subsection 1 of the Basic Law, demands, and Article 4 subsections 1 and 2 of the Basic Law explicitly guarantees, the inner freedom15 to form a religious or ideological conviction, to have it or not to have it. Thus Article 4 of the Basic Law does not only protect the right to have a faith or an ideology in the positive sense but also the right not to adhere to a religion or 9 Hassemer/ Hömig footn. 1, p. 526. 10 According to § 5 subsection 1 of the Act on Religious Child Education (Gesetz über die religiöse Kindererziehung – RelKErzG) of 15. Juli 1921 (Reich Law Gazette – RGBl. I, p. 939), upon attaining the age of 14, the child is entitled to decide to which denomination he or she wishes to adhere. Upon attaining the age of 12, the child cannot against his or her will be brought up in a different denomination than before – § 5 sentence 2 of the RelKErzG. 11 BVerfGE 42, 312 (322 f.); 46, 73 (83); 53, 366 (387/388); 57, 220 (240 f.);70, 138 (160 f.). 12 BVerfGE 24, 236 (246 f.); 105, 279 (293 f.). 13 Bergmann, footn. 3, Art. 4, marginal no. 3; BVerfGE 24, 236 (245). 14 BVerfGE 24, 236 (245). 15 BVerfGE 32, 98 (106); 33, 23 (28 f.); 35, 366 (376).

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ideology, which is known as negative freedom of religion. In its decisions, the Federal Constitutional Court does not establish a clear-cut distinction between religion and ideology but sometimes leaves open whether the entity in question is a religion or an ideology16. The Federal Constitutional Court understands the concept of “freedom of faith and of creed” contained in Article 4 subsection 1 of the Basic Law in a neutral way, so to speak, and understands it to apply not only to religious convictions, by stating: “Regardless of whether it is a matter of a religious belief or a … religion-free ideology, this definition encompasses …”17.

This is not a matter of the quantitative size of the respective religious stance or fundamental view 18. What is also protected, on the contrary, is a religious or value-based conviction which occurs infrequently and which derogates from the teachings and principles of the religious or ideological community. Even sectarians and outsiders enjoy the protection of Article 4 of the Basic Law, as long as they do not come into conflict with other value decisions of the constitution19. As regards religious communities and their protection by Article 4 of the Basic Law, the Federal Constitutional Court has found in a recent decision that it is for the state bodies – ultimately, for the courts –, to decide whether an association is entitled to the rights flowing from Article 4 subsections 1 and 2 of the Basic Law. The court stated that merely a community’s assertion and its understanding of itself that it professes a religion and is a religious community may not justify for it and its members the invocation of Article 4 subsections 1 and 2 of the Basic Law; rather, it must actually be by its spiritual content and outer manifestation a religion and a religious community20. As the rulings of the administrative courts on which the Federal Constitutional Court’s decision was based obviously concerned a religious or ideological community, the Federal Constitutional Court refrained from establishing criteria for a community which claims to be a religious or ideological one but does not fall within the scope of protection of Article 4 subsections 1 and 2 of the Basic Law.

The great importance attaching to the fundamental right of religious freedom emerges not least from the fact that the guarantees of Article 4 subsections 1 and 2 of the Basic Law apply, according to the text of the constitution, without the requirement of the specific enactment of a statute, that is, without an explicit authorisation to statutorily limit the right and to establish its forfeitability21. The 16 BVerfGE 24, 236 (246); 105, 279 (293 f.) – in this decision, the Federal Constitutional Court leaves open whether the so-called “Osho Movement” pursues religious or ideological objectives: “at any rate an ideology within the meaning of Article 4.1 of the Basic Law”. 17 BVerfGE 24, 236 (245). 18 BVerfGE 32, 98 (106); 33, 23 (28). 19 BVerfGE 33, 23 (28 f.), on this, however, see also the dissenting opinion of Judge von Schlabrendorff, according to which an obvious misinterpretation which does not correspond to the majority teaching may not claim protection by Article 4 of the Basic Law. 20 BVerfGE 83, 341 (353). 21 BVerfGE 28, 243 (260); 33, 23 (29); Hömig, footn. 1, p. 528.

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Federal Constitutional Court has therefore declined to transfer the boundaries of other fundamental rights, especially of those contained in Article 2 subsection 1 of the Basic Law and in Article 5 subsection 2 of the Basic Law, to Article 4 subsections 1 and 2 of the Basic Law22. Accordingly, the constitution-creating legislature has, in particular, considerably strengthened the scope of the fundamental right as compared to the regulation in the Weimar Constitution, so that also the boundaries of Article 136 subsection 4 of the Weimar Constitution do not apply23. The fact that the freedom of religion is guaranteed without reservation does not mean, however, that the fundamental right is not amenable to any restrictions at all. Instead, the boundaries of Article 4 subsections 1 and 2 of the Basic Law result from the constitution itself24. This is the case in particular where the exercise of the fundamental right comes up against conflicting fundamental rights, for instance where the positive freedom of faith comes up against the negative freedom of faith of others25. But also other legal values endowed with constitutional rank can restrict the fundamental right, which is guaranteed without reservation, in some respects26. Here, Article 4 of the Basic Law and the conflicting constitutional interest must be weighed against each other. The Federal Constitutional Court has, for instance, established that it was constitutional for the Federal Government to inform Parliament and the public about the ideological “Osho Movement”, about the groups that it encompasses and their objectives and activities. In doing so, the Federal Government could rely on its task of governance, which directly flows from the constitution, without an additional statutory authorisation having been required27.

1. Freedom of conscience

The freedom of conscience encompasses not only the freedom of “having” a

conscience but in principle, also the freedom not to be compelled by state authority to act contrary to commandments and prohibitions established by one’s conscience in one’s sphere of law28. According to the Federal Constitutional Court’s case-law, a conscience-based decision can, but need not, be religiously motivated. According to the Federal Constitutional Court’s case-law, a conscience-based decision is only a serious moral decision, which means that it is oriented towards the categories of “good” and “evil”, and a decision which, according to the inner perception of an

22 BVerfGE 32, 98 (107); 52, 223 (246). 23 BVerfGE 33, 23 (30 f.). 24 BVerfGE 33, 23 (29). 25 BVerfGE 52, 223 (247). 26 BVerfGE 28, 243 (261), established case-law. 27 BVerfGE 105, 279 (301 ff.). 28 BVerfGE 78, 391 (395).

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individual, is binding and absolutely obligatory upon such individual29. The invocation of alleged contents and precepts of faith is subject to a review of seriousness; if a conflict of conscience is alleged this must be done in a concrete and substantiated manner and in such a way that the conflict becomes objectively understandable at least basically30. According to the Federal Constitutional Court’s case-law, the scope of protection of the freedom of conscience is not affected for instance by the decision to undergo a pregnancy termination; a woman cannot invoke Article 4 subsection 1 of the Basic Law for the killing of the unborn child that goes with a pregnancy termination, thus claiming a conscience-based decision31. According to this case-law, the right to refuse to participate in a pregnancy termination that is not indicated for medical reasons does not fall within the freedom of conscience but within the scope of protection of the right of personality, which is determined by the image of the medical profession, under Article 2 subsection 1 of the Basic Law, in conjunction with the occupational freedom guaranteed by Article 12 subsection 1 of the Basic Law32.

2. Freedom of religious cult (freedom of manifesting one’s own belief, and

freedom from external pressure)

According to the Federal Constitutional Court’s case-law, the freedom of faith protected by Article 4 subsections 1 and 2 of the Basic Law encompasses not only the (inner) freedom to believe or to have a belief but also the outer freedom to manifest, profess to and disseminate that faith, and thus the freedom to profess a belief 33. This can be given concrete shape by disclosing one’s adherence to a religion or ideology but also by advertising for a faith and proselytising. However, the freedom to profess a belief also protects the struggle for truth and for adherents between the religions and ideologies, which takes place by means of intellectual dispute34. The manifestations of religious convictions by deeds comprise becoming a member of a religious or ideological association, resigning membership35 , but also becoming a member of a different religious or ideological association. The Federal Constitutional Court explicitly mentions the freedom of organisational assembly for the purpose of collective public profession of faith as an element of

29 Federal Constitutional Court, Neue Juristische Wochenschrift – NJW 1993, 455, established case-law. 30 Bergmann, footn. 3, Art. 4 marginal no. 9, with further references to the case-law of the Federal Administrative Court (Bundesverwaltungsgericht). 31 BVerfGE 88, 203 (308). 32 BVerfGE 88, 203 (294). 33 BVerfGE 12, 1 (4 f.); 24, 236 (245); 32, 98 (106); 69, 1 (33 f.); 93, 1 (15) see also Hassemer/Hömig, footn. 1, p. 526. 34 Federal Constitutional Court, Neue Zeitschrift für Verwaltungsrecht – NVwZ 1994, 159 on churches’ warning of youth sects. 35 BVerfGE 30, 415 (423 f.).

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the freedom to profess a belief36. The freedom to profess a belief, just as the freedom of faith, protects not only the undisturbed active profession of a belief but also the decision whether one wishes to profess one’s belief at all (so-called negative freedom to profess a belief).

From the scope of protection described before, it follows as regards the freedom to profess a belief (which is a defensive right) that the state must refrain from impairing such right. The state is prohibited from interfering with the religious convictions of individuals or religious and ideological communities, but also with acts and manifestations of faith by them. Over and above this, Article 4 of the Basic Law imposes upon the state the duty to safeguard space for the people to operate in which they can develop their personality in the area of ideology and religion37. In particular this guarantee of a freedom to profess a belief by Article 4 of the Basic Law harbours, however, the possibility of a conflict with the freedom to profess a belief enjoyed by persons with a different religion or ideology, but also with the freedom of another not to adhere to any religion or ideology. Accordingly, the freedom to profess a belief also requires protection by the state. The state is obliged to provide space for this and to see to it that tolerance exists within the spheres of society. This is done by weighing the conflicting fundamental rights in the context of the application of the non-constitutional law, that is, of the law below the constitutional level.

3. Subjects of freedom of religion and conscience

On the one hand, the forum internum, which encompasses the forming and

having of a religious or ideological conviction and the practice of religion in private, outside the public sphere, can be a subject of the freedom of religion and conscience is. What is protected apart from this by Article 4 subsections 1 and 2 of the Basic Law is the forum externum, that is, activities in public, and thus the freedom to live and act according to one’s religious convictions38. According to the Federal Constitutional Court’s case-law, the concept of the “practice of religion” is to be interpreted broadly. Accordingly, it includes not only acts of worship and the exercise and observance of religious customs such as religious service, prayers, receiving the Sacraments, church collects, other collections for charitable purposes including their promotion from the pulpit, processions, display of church flags, ringing bells, and charitable care of the sick by the church. What is covered over and above this are religious instruction, independent religious and ideological celebrations as well as other expressions of religious and ideological life39. If a

36 BVerfGE 42, 312 (323). 37 BVerfGE 93, 1 (16). 38 Bergmann, footn. 3, Art. 4, marginal no. 2. 39 See Hassemer/Hömig, footn. 1, p. 527; Bergmann, footn. 3, Art. 4, marginal no. 7, each with further references.

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woman of Muslim faith wears a headscarf for religious reasons, this can fall under the protection of the freedom of faith which is guaranteed under Article 4 subsections 1 and 2 of the Basic Law 40, as does, for instance, the collection of used clothing, rags and waste paper for charitable purposes41.

4. Freedom of the institutional church

The relation between state and church in Germany is characterised by the fact

that according to Article 137 subsection 1 of the Weimar Constitution, there is no state church, but there is also no separation of state and church in the laicist sense. Instead, the relation between state and church is characterised by a separation which includes forms of cooperation (see B. I below). The churches and religious communities are autonomous organisations which are independent of the state. They can be created in the legal form of a corporate body under public law, or in one of the legal forms available under civil law (see B. II. 1.). They have the right to organise and administer their affairs independently (see B. II. 5.).

II. Protection of religious values as fundamental human rights in constitutional jurisdiction – selected examples

1. Protection of religious values in positive (state) law

At the beginning of its jurisdiction, the Federal Constitutional Court had

restricted the scope of protection of the freedom of religion to those religious convictions which have “developed in the course of history among today’s civilised peoples on the basis of certain common fundamental moral views”42. The case on which this decision from 1960 was based was that a convict who was a member of the “Society for the Knowledge of God” (Bund für Gotteserkenntnis (Ludendorff) e. V.) tried to solicit fellow inmates away from the church, promising them cigarettes for their resigning church membership. Because of these actions, the convict was denied release from prison on parole. To justify his conduct, he invoked his freedom of faith. On this, the Federal Constitutional Court stated: “Anyone who exploits the specific circumstances of imprisonment and promises and indeed gives stimulants to others to induce them to resign their beliefs does not enjoy the protection of Article 4 subsection 1 of the Basic Law”43. A few years later, the Federal Constitutional Court, moving away from this case-law, interpreted the concept of religious freedom “extensively”44; accordingly, the

40 BVerfGE 108, 282 (298). 41 BVerfGE 24, 236 (247 f.). 42 BVerfGE 12, 1 (4). 43 BVerfGE 12, 1 (5). 44 BVerfGE 24, 236 (246).

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freedom to practice one’s religion extends not only to the Christian churches but also to other religious and ideological communities. The case-law from 1960 was explicitly abandoned in a decision from 197545. In this decision, the Federal Constitutional Court stated: „The Basic Law also does not lay down an ‚ethical standard’ in the sense of a catalogue of specific ideological principles, for instance ‚according to the maxims which have developed in the course of history among today’s civilised peoples on the basis of certain common fundamental moral views’ which the state must apply in organising the school system. The ‘ethical standard’ of the Basic Law is instead its openness to the pluralism of religious and ideological views in the face of an image of humanity that is marked by the dignity of humans and the free development of personality in self-determination and personal responsibility. It is through this openness that the free state established by the Basic Law maintains its religious and ideological neutrality.”46

Along the lines of this case-law, the Federal Constitutional Court has regarded it as incompatible with Article 4 subsection 1 of the Basic Law that a criminal court sentenced a man for failure to lend assistance because he had, for reasons of religious conviction, encouraged his wife not to undergo a blood transfusion, whereupon she died47. In contrast, the Federal Constitutional Court did not regard the area of protection of religious freedom as affected when a citizen, invoking Article 4 subsection 1 of the Basic Law, sought to achieve that after his death, his ashes be scattered on his land or be buried in an urn there, and not in a graveyard48.

2. Protection of believers against discrimination

Article 3 subsection 3 sentence 1 of the Basic Law explicitly regulates – apart from other bans on discrimination – the ban on disadvantaging or favouring anyone because of his or her faith or religious opinions. Apart from this, Article 33 subsection 3 of the Basic Law provides a ban on disadvantaging anyone as regards eligibility for public office and the enjoyment of political and other rights by reason of adherence or non-adherence to a religious denomination or ideological persuasion. These two regulations concerning equal treatment are also contained in Article 4 subsections 1 and 2 of the Basic Law. All three provisions are applicable alongside each other49. Accordingly, the concepts “religious opinion” and “religious denomination” are to be understood broadly here. They cover not only the adherence to an “organised” religious community but every profession of belief, even if it is an individual and particular one50. According to the Federal

45 BVerfGE 41, 29 (50). 46 BVerfGE 41, 29 (50). 47 BVerfGE 32, 98 (106 ff.) – “Faith healer” case. 48 BVerfGE 50, 256 (262 ff.). 49 Bergmann, footn. 3, Art. 33 marginal no. 7. 50 BVerfGE 79, 69 (75).

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Constitutional Court’s decision on the appointment as a civil servant of a teacher wearing a headscarf, the ban on denying eligibility for public offices for reasons that infringe Article 4 subsections 1 and 2 of the Basic Law does not preclude the establishment of official duties for teachers that bear relevance to the freedom of religion with a view to the pupils’ negative freedom of religion51.

The case-law used to require that the disadvantaging or favouring had occurred exactly “because of” the characteristics specified in Article 3 subsection 3 sentence 1 of the Basic Law. In contrast, according to recent case-law, which had originally been developed concerning equal rights for men and women, unequal treatment under the law can occur on the one hand directly, namely if the unequal treatment is explicitly based on one of the criteria mentioned in Article 3 subsection 3 sentence 1 of the Basic Law. On the other hand, discrimination that infringes Article 3 subsection 3 sentence 1 of the Basic Law can also exist where the regulation is neutral as regards its wording but factually results in unequal treatment for instance due to religious conviction52.

3. Religious justification of certain professional pragmatism

To the extent that professional procedures are performed within a religious sphere, for instance administering the Sacraments, these procedures are protected by Article 4 subsections 1 and 2 of the Basic Law. To the extent, however, that general professional procedures, depending on the person who performs them, attain a religious or ideological character through the person’s inner or manifested stance, the question arises whether these professional procedures, which have a clearly neutral appearance, enjoy the comprehensive protection of Article 4 of the Basic Law. On this, the Federal Constitutional Court has ruled in the case of a foreign butcher of Muslim faith that the ritual slaughter of animals, for which he sought permission, and which is prohibited under German animal protection legislation with the reservation of an exemption, is protected by Article 2 subsection 1 of the Basic Law (general freedom of action) in conjunction with Article 4 subsections 1 and 2 of the Basic Law. Although the Federal Constitutional Court assumed, in line with the complainant’s submissions, that ritual slaughter is also an expression of his basic religious attitude and is performed by him n accordance with the rules of his religion, which he regards as binding, it has given due consideration of the element of the practice of a profession insofar as it did not regard Article 4 subsections 1 and 2 of the Basic Law, and thus the religious act, as prevalent, but regarded the practice of his profession by the

51 BVerfGE 108, 282 (298) – see also A. II. 5. 52 Along these lines, apparently, Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 1, 141 (144 f.).

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complainant, and thus the general freedom of action, as the relevant standard of review53.

4. Right to manifest religious feelings

As part of the freedom to profess one’s belief, Article 4 subsection 1 of the Basic Law particularly protects the right to manifest religious feelings (see A. I. 2.). The religious communities, however, must also tolerate to be the subject-matter of the public dispute of opinions54.

5. Protection of religious feelings/symbols

Particular in the sphere of religion and ideology, there are many signs which are regarded as signs of identification of, or as symbols for, the religious or ideological stance of the person who wears the symbol. The wearing of the headscarf can, for instance, be seen as such a symbol by women of Islamic faith. This was also the subject-matter of what is known as the Federal Constitutional Court’s “Headscarf decision”. In this decision, the Federal Constitutional Court focused on the circumstance that the complainant regards the wearing of a headscarf – which can as such be regarded as neutral in the first place – as bindingly imposed on her by the rules of her religion, and that observing this dress rule is, for her, the expression of her religious belief, which is protected by Article 4 of the Basic Law. In this respect, wearing the headscarf means for the complainant on the one hand compliance with a religious obligation to act in a certain way. The Federal Constitutional Court stated that “the answer to the controversial question as to whether and how far covering the head is prescribed for women by rules of the Islamic faith is not relevant. It is true that not every form of conduct of a person can be regarded as an expression of freedom of faith, which enjoys special protection, purely according to the person’s subjective determination; instead, when conduct by an individual that has been claimed to be an expression of the individual’s freedom of faith is assessed, his or her particular religious group’s understanding of itself may not be overlooked”. The rule of faith, which was substantiated with religious reasons by the complainant, and thus the obligation to wear a headscarf, was regarded as sufficiently plausible55. At the same time, the pupils’ negative freedom of religion, and thus their right to stay away from cultic acts of a faith that is not shared, is regarded as relevant56. In this context, the

53 BVerfGE 104, 337 (337 and 346) – the standard of occupational freedom under Article 12 of the Basic Law was not pertinent because the complainant was a Turkish national and Article 12 of the Basic Law only protects German nationals. 54 Federal Constitutional Court, NVwZ, 1995, 471. 55 BVerfGE 108, 282 (298). 56 BVerfGE 108, 282 (303).

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Federal Constitutional Court has taken into account that the headscarf constitutes a religious symbol in this case.

Also in what is known as the “Classroom crucifix decision”, and thus as regards the question of the permissibility of crosses in the classrooms of state schools, the Federal Constitutional Court has dealt with the effect of the cross as a symbol. Particularly because the cross is “a symbol of a particular religious conviction and not merely an expression of the Western culture marked partly by Christianity”, the court regarded it as incompatible with the precept of neutrality of the state, but also with the pupils’ negative freedom of religion and with the parents’ right to bring up their children if a cross is affixed in a classroom against the will of the children or of the parents57.

6. Protection of religious values in family relationships

The religious or ideological education is at the same time the expression of the parents’ religion or ideology according to Article 4 of the Basic Law and a component of their right according to Article 6 subsection 2 of the Basic Law to bring up their children. Making use of this religious freedom and of their parental right, or their right to bring up their children, parents had, in the “Classroom crucifix case”, successfully lodged a constitutional complaint against the affixation of crosses in state schools. The parents’ right to decide whether the child shall receive religious instruction is specifically regulated in Article 7 subsection 2 of the Basic Law. As concerns marriage, the principle of compulsory civil marriage (§ 1310 of the Civil Code (Bürgerliches Gesetzbuch – BGB)) applies in Germany, which means that only a marriage that has been entered into before a registrar is valid. Until now, the church wedding can only take place subsequently. At present, this is still ensured by §§ 67 and 67a of the Civil Status Act (Personenstandsgesetz)58. According to these provisions, an administrative offence shall be deemed to be committed by any person who performs a church wedding, or the religious celebration of a marriage, without a civil marriage having taken place previously unless one of the fiancés suffers from a life-threatening illness and postponement is impossible, or if there is another serious moral necessity. These provisions will, however, be repealed on 1 January 2009 by virtue of the Act Amending the Civil Status Act (Personenstandsreformgesetz)59. Because the Act does not otherwise provide a prohibition of a church wedding or of a religious marriage ceremony, it is inferred from this that with the entry into force of the Act Amending the Civil Status Act on 1 January 2009, church weddings or other religious marriage ceremonies will be permissible without a previous civil

57 BVerfGE 93, 1 (19). 58 Of 8 August 1957, Federal Law Gazette I p. 1125, last amended on 31 March 2008, Federal Law Gazette I p. 313. 59 Of 1 February 2007, Federal Law Gazette I p. 122.

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marriage60. A divorce of a civil marriage, however, can only be granted by a state court. The question of the dissolution of a former marriage by the church is not an obstacle for entering into a new civil marriage. At the time when divorce was dependent on a fault of one of the spouses, a change of denomination was not regarded as a matrimonial offence61.

7. Freedom of organising communities at church, and of public worship

On this, see B. II. and A. I. 3.

8. Right to observe and celebrate church holidays

Article 139 of the Weimar Constitution provides that Sundays and holidays recognised by the state shall remain protected by law as days of rest from work and of spiritual edification. But according to the Federal Constitutional Court’s case-law, it follows neither from this provision, which is of continued applicability, nor from Article 4 of the Basic Law, that a claim of the individual exists to designate individual church holidays as entire days of rest from work and to exempt employees from a duty to work on these days that they have entered into in their employment contracts. The legislature is merely obliged to grant state recognition to a reasonable number of church holidays62. At present, two constitutional complaints lodged by churches are pending before the Federal Constitutional Court because the number of Sundays on which the shops are open has been considerably increased in the Land (state) Berlin. The churches argue inter alia that this constitutes a violation of Article 4 subsection 1 of the Basic Law in conjunction with Article 139 of the Weimar Constitution.

III. Freedom of conscience and religion under special circumstance

Article 141 of the Weimar Constitution, which has been incorporated into the Basic Law by its Article 140, provides that religious societies shall have the right of entry for religious purposes into the army, hospitals, prisons or other public institutions to the extent that there exists a need for religious services and pastoral care, but that every form of compulsion must be avoided. The wording of the provision already shows that religious acts are permitted in the state institutions

60 Süddeutsche Zeitung of 3 July 2008: “Hochzeit ohne Standesamt” and “Der Segen Gottes und die Segnungen des Rechts”; Frankfurter Allgemeine Zeitung of 4 July 2008: “Standesamt für religiöse Trauung bald verzichtbar”, “Wilde Ehe” and “Die Ehe ist kein staatliches Ding”; Frankfurter Rundschau of 4 July 2008: “Ohne den Segen des Standesamtes”; Stuttgarter Zeitung of 4 July 2008: “Wenn nur der Himmel die Ehe segnet”. 61 BVerfGE 17, 302 (305). 62 Federal Constitutional Court, NJW 1995, 3378 (3379).

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mentioned there, that is, in the army (the Federal Armed Forces (Bundeswehr), as it is called now), in hospitals, prisons or other public institutions. Religious services and pastoral care are explicitly mentioned as acts which are to be permitted. As for the rest, the concept of “religious acts” must be interpreted, taking into account the respective religious community’s understanding of itself and its opinions. “Permit” means that the religious communities can perform their activities on their own authority and not under state control. Whether only religious communities or also ideological communities are entitled to these rights has not yet been decided by the Federal Constitutional Court, and this issue is also disputed in legal literature63. Today, the avoiding of compulsion, which is explicitly mentioned – what is meant here is compulsion by the religious communities, but also by the members of the Bundeswehr, by hospital patients, prison or institution inmates and by employees – results from Article 4 of the Basic Law already. If a hospital asks patients about their affiliation to a religion to facilitate the religious communities’ exercise of their right to pastoral care in hospitals, this is compatible with Article 136 subsection 3 and Article 141 of the Weimar Constitution and also does not infringe the fundamental right to negative freedom to profess a belief if the patients are free to answer the question and can refuse to do so under reasonable conditions64. Apart from this, the term “permit” (zulassen) does not exclude that the state for its part becomes active in such a way that it enters into treaties with the religious communities and/or covers the costs partly or entirely. This has been done for instance by means of the Armed Forces Chaplaincy Treaty (Militärseelsorge-vertrag) of 1957 between the Federation and the Protestant Church65, which has been in force since then, or by means of the agreement of both large churches concerning pastoral service in the Federal Police66. The cooperation of state and church concerning pastoral care in prisons has also been regulated by treaties.

IV. Data protection and data of religious demography – plans about questions on religious affiliation in the census 2011

Article 4 subsections 1 and 2 of the Basic Law also protects the freedom not to

disclose one’s religious conviction to state bodies. Article 136 subsection 3 sentence 2 of the Weimar Constitution, which has been incorporated into the Basic Law, permits the authorities to inquire into a person’s affiliation to a religious society to the extent that rights and duties depend thereon or that a statistical survey

63 Bergmann, footn. 3, Art. 140 marginal no. 26; Hemmerich, in: von Münch/ Kunig (Hrsg.), Grundgesetz-Kommentar [commentary on the Basic Law], volume 3, 5th edition, 2003, Art. 140, marginal no. 44. 64 BVerfGE 46, 266 (267 f.). 65 Of 26 July 1957, Federal Law Gazette (Bundesgesetzblatt – BGBl.) II p. 701. 66 Of 12 August 1965, Joint Ministerial Gazette (Gemeinsames Ministerialblatt – GMBl. pp. 374 and 377.

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ordered by statute so requires. According to the Federal Constitutional Court’s case-law, the compulsion to disclose one’s affiliation or non-affiliation to a religious society in a census67 and the obligation to enter the affiliation to a religion on employees’ wage tax cards68 are permissible. Upon a patient’s admission to a hospital, however, it is only compatible with Article 4 subsections 1 and 2 of the Basic Law to ask for his or her affiliation to a denomination if it is pointed out at the same time that the question need not be answered69.

B. STATUS OF RELIGIOUS COMMUNITIES

I. Religious communities vs. the state – general model of constitutional relations

1. Constitutional definition of the relation between religious communities and the

state

The relation between state and churches, or religious communities in the organisational sense, is first and foremost characterised by Article 137 subsection 1 of the Weimar Constitution, according to which there shall be no state church. From this it also follows that the churches as well as the religious communities are autonomous organisations which are independent of the state. According to the Federal Constitutional Court’s description, the relation between state and churches is not characterised by a strict separation but by a “limping separation”70. This expresses that in Germany, the relation between state and church is organised as a middle course, so to speak: there is neither as a state church nor a separation within the meaning of laicism. It is a form of cooperation whose subject-matter can be, and indeed is, the types of state support71, but which bars the introduction of legal structures in the nature of a state church, and prohibits privileges for specific denominations (state neutrality)72. Several forms of cooperation are provided in the Basic Law itself, for instance in Article 7 subsection 3 of the Basic Law, which provides that religious instruction shall form part of the ordinary curriculum, in Article 140 of the Basic Law in conjunction with Article 137 subsection 5 of the Weimar Constitution, according to which the churches and religious communities are, or can be, corporate bodies under public law, in Article 137 subsection 6 of the

67 BVerfGE 65, 1 (39). 68 BVerfGE 49, 275 (276). 69 BVerfGE 46, 266 (266 f.). 70 BVerfGE 42, 312 (331). 71 BVerfGE 44, 103 (103 f.) – on the constitutionally permissible obligation of enterprises to retain, on a statutory basis, the church tax of their employees and to pay them to the tax office. 72 BVerfGE 19, 206 (216); 93, 1 (17).

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Weimar Constitution with its regulation of the law on church tax and in Article 138 of the Weimar Constitution, which sets out the state contributions, and in Article 141 of the Weimar Constitution in the shape of pastoral care in institutions.

2. Form of regulating relations between the state and religious communities

The foundations of the relations between religious communities and the state are regulated in the Basic Law and in the provisions of the Weimar Constitution that have been incorporated into it. Apart from this, the relations between the state and religious communities, in particular the rights and duties of religious communities vis-à-vis the state, may be regulated by law, after the entry into force of the Basic Law, by laws of the Länder (states)73. Of course it is also possible to conclude concordats and church treaties or other treaties under public or private law with religious communities74. Especially through concordats and church treaties the position vis-à-vis the state of the churches that are party to them is strengthened already because the contractually guaranteed rights of the churches cannot unilaterally be repealed by the state75. As for the rest, the churches and religious societies are also in their own affairs and in general bound by the statutes valid for all76.

3. Principle of equality of religions

The principle of the equality of religions follows already from the neutrality of the state which has been described before (B I.)77. Along these lines, the Federal Constitutional Court has established that religious instruction within the meaning of Article 7 subsection 2 sentence 1 of the Basic Law can be the teaching of all religious communities78. This is not contradicted by the fact that the state makes certain rights of religious communities contingent on certain preconditions. According to Article 137 subsection 6 of the Weimar Constitution, for instance, only religious societies which are corporate bodies under public law are entitled to levy taxes in accordance with Land law on the basis of the civil taxation lists (on this, see B. II. 2.). Moreover, Article 7 subsection 3 sentence 2 of the Basic Law grants the religious communities the right to determine the subject-matters of religious instruction (on the concept of religious communities see II. 1.).

73 BVerfGE 6, 309, (343 f.) – Concordat judgment. 74 See also Bergmann, footn. 3, Art. 140, marginal no. 1. 75 BVerfGE 19, 1 (12); on this, see also Hassemer/Hömig, footn. 1, p. 533. 76 See Bergmann, footn. 3, Art. 140, marginal no. 15. 77 BVerfGE 19, 1 (8). 78 BVerfGE 102, 370 (396) – see also B. IV. 2.

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II. Freedom to found and operate religious communities

1. Founding churches and religious communities

As has already been explained, associating as a religious society and founding religious societies (collective freedom of religion) is an essential right that follows from Article 4 subsections 1 and 2 of the Basic Law and from the freedom of religion guaranteed therein and explicitly guaranteed by Article 137 subsection 2 of the Weimar Constitution79. The religious societies (Religionsgesellschaften) mentioned in Article 137 subsection 2 of the Weimar Constitution – which are synonymous to the religious communities (Religionsgemeinschaften) mentioned in Article 7 subsection 3 sentence 2 of the Basic Law80 – are associations which unite the members of denomination, or of several denominations, that are obviously related according to their spiritual content and outward appearance, for the comprehensive compliance with the duties imposed by the common profession of faith81. They are not obliged to have a specific legal form. What must be distinguished from the religious communities are the religious and ideological societies and associations (the latter are explicitly mentioned in Article 138 subsection 2 of the Weimar Constitution as concerns their assets) whose task is merely the partial care for the religious life of their members, although they are frequently associated with a religious community. Just like the religious communities, also these societies and associations enjoy the right to engage in religious and ideological activities82. Except for Article 137 subsection 1 of the Weimar Constitution, which contains the prohibition of a state church, the Basic Law and the Weimar Constitution do not use the term “church”. The Federal Constitutional Court has regarded it as constitutionally required to interpret the term “churches”, which was contained in a statute, as referring to all religious societies which are corporate bodies under public law83. The churches are religious communities within the described meaning. Article 137 subsection 7 of the Weimar Constitution places associations whose purpose is the common cultivation of an ideological persuasion on the same footing as religious societies.

2. State recognition of the existence of religious communities

In principle, Article 4 subsections 1 and 2 of the Basic Law protects, in the shape of collective freedom of religion, the right to unite in religious and

79 BVerfGE 83, 341 (355) – see also A. 80 In the following, the term “religious communities” will normally be used, because the term “religious societies” of the Weimar Constitution might suggest a specific legal form. 81 Bergmann, footn. 3, Art. 140, marginal no. 12. 82 BVerfGE 53, 366 (387). 83 BVerfGE 19, 1 (16).

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ideological associations84. No state recognition is required for this. As concerns the religious communities, Article 137 subsection 5 sentence 1 of the Weimar Constitution maintains their status as corporate bodies under public law, which they enjoyed at the point in time of the Weimar Constitution’s entry into force85, and for the time after its entry into force, and through its incorporation into the Basic Law even today, it provides, in sentence 2, other religious societies the right and the possibility of achieving the status of a corporate body under public law even today. This requires an act of recognition by the state. According to Article 137 subsection 5 sentence 2 of the Weimar Constitution, the prerequisite of this is that the religious societies, through their constitution and the number of their members, offer an assurance of their permanency. In the context of proceedings in which the religious community of the Jehovah’s Witnesses sought recognition as a corporate body under public law, the Federal Constitutional Court86 has given the following concrete shape to these prerequisites: the religious community’s constitutional structure should be more than just its legal statutes and is therefore understood as its actual overall condition; the assurance of permanency follows from a certain number of members (state practice: one per thousand of the inhabitants of the Land) and the actual overall condition (indicators: sufficient funding, a minimum period of existence and the intensity of religious life). What is not required is the legal form of a registered association. Moreover, according to this case-law, the religious community’s loyalty to the law is an unwritten requirement for its recognition as a corporate body under public law. This means that the religious community will comply with the valid law, in particular in the exercise of the sovereign powers assigned to it, and that the religious community offers an assurance that its conduct will not endanger the fundamental constitutional principles set forth in Article 79 subsection 3 of the Basic Law, the fundamental rights of third parties which are entrusted to the protection of the state, or the fundamental principles of the liberal law on religious organisations and state law on churches that are enshrined in the Basic Law. Neither is loyalty to the state a prerequisite for recognition, nor can an examination of the religious community’s tenets of faith be a subject-matter of the recognition procedure. The latter, however, does not stand in the way of assessing the conduct of the religious community or of its members, even if it is oriented towards the tenets of faith87.

Through the award of the status of a corporate body under public law, the church is neither incorporated into the organisation of the state, nor is it subject to special state church sovereignty88. Instead, this status is to establish the autonomy

84 See A. 85 They encompassed the Roman Catholic dioceses, the Protestant Land churches, the Old Catholic, Russian Orthodox and Greek Orthodox churches and the Jewish congregations. 86 BVerfGE 102, 370 (384 ff.). 87 BVerfGE 102, 370 (394 ff.). 88 BVerfGE 18, 385 (386 f.); 30, 415 (428); 42, 312 (321).

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and independence of the church from the state, as well as its original power as a church89. Also the religious communities which are recognised as corporate bodies under public law are holders of fundamental rights90. Recognition goes along with the assignment of certain sovereign powers, for instance the right to levy taxes (Article 137 subsection 6 of the Weimar Constitution), the right to have public officials, the authorisation to make their own laws, to create legal entities with legal capacity and to create church public property, as well as the parochial right (automatic membership in the community of one’s domicile).

3. State control over religious communities’ operation

Article 137 subsection 3 of the Basic Law guarantees all religious societies irrespectively of their form of organisation91 the right of organising and administering their affairs independently within the limits of the statutes valid for all. The freedom of religious life and activities is complemented by the freedom of organisation, of law-making and administration, which is indispensable for this92. In particular, the following are regarded as “their affairs”: territorial organisation93, church membership94, right to vote and stand for election for church bodies95, the regulation of third parties’ right of access to church institutions96 and the levying of fees and contributions97. Not only the religious communities as such are entitled to the right to organise and administer their affairs independently but also the institutions associated with them to the extent that they, according to their church-based understanding of themselves, are qualified by their purpose or their task to perform and fulfil part of the religious community’s mandate. Thus, the Federal Constitutional Court has recognised, for instance, the right to organise and administer their affairs independently for instance for church hospital providers98 and for care and education institutions99 . To the extent that the guarantee for the churches of organising and administering their affairs independently is placed under the reservation of the general statutes this must not be understood in the sense of a restrictability of this right due to general statutes. Instead, this reservation merely means that the religious communities are bound by the laws,

89 BVerfGE 30, 415 (428). 90 BVerfGE 102, 370 (387) with further references. 91 BVerfGE 99, 100 (120). 92 BVerfGE 72, 200 (289) with further references. 93 BVerfGE 18, 385 (388). 94 BVerfGE 30, 422, 44, 37 (52). 95 Federal Constitutional Court, NJW 1999, 350. 96 BVerfGE 57, 220 (243 ff.). 97 BVerfGE 19, 206 (217). 98 BVerfGE 46, 73 (85 f.); 70, 138 (162 f.). 99 BVerfGE 57, 220 (242 f .)

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which are valid for them in the same way as for any person100. As regards church matters that are purely internal, a state law cannot be a boundary to the church’s action at all101.

An issue that is closely connected with the relation between the state and the internal law of religious communities and the right of religious communities to organise and administer their affairs independently is the question of the reviewability of their measures and decisions by the state courts. In a decision from 1965, the Federal Constitutional Court established that purely internal church matters (in the case at hand, the partition of a church parish by the church administration) are no “acts of state authority”, which could be challenged by a constitutional complaint102. In the same year, however, the Federal Constitutional Court also decided that a tax law enacted by a church infringes the constitutional order and is subject to review in this respect if the law violates the relations between state and church and between the state and the individual, which are regulated in the Basic Law103. A further expansion of control by the state seems to be on the way now. In the disciplinary matter concerning a pastor, which has been challenged by means of a constitutional complaint after the exhaustion of all legal remedies available within the church, the Federal Constitutional Court has taken up recent case-law of the Federal Court of Justice (Bundesgerichtshof), without, however assuming a justiciability of the challenged measure in the case at hand. According to the case-law of the Federal Court of Justice, a measure taken by a religious community which is based on the right of religious communities to organise and administer their affairs independently may be reviewed not for its lawfulness but for its effectiveness to the extent that it infringes fundamental principles of the state legal order, such as for instance the general ban on arbitrariness, morality or public policy104. Independently of that, measures taken by religious communities are subject to judicial review if their execution constitutes an authorisation that has been assigned to such religious community by the state, or to the extent that such measure goes beyond the sphere of the church or reaches into the sphere of the state105. The right of corporate bodies under public law to levy church taxes constitutes such a sphere. On this, the Federal Constitutional Court has already passed several decisions; it has found, for instance, that the church tax is a tax which is levied from members and that it can therefore not be levied from corporate bodies because they cannot be members of religious

100 BVerfGE 42, 312 (334). 101 BVerfGE 72, 278 (289). 102 BVerfGE 18, 385 (386 ff.) 103 BVerfGE 19, 202 (216). 104 BGH (Federal Court of Justice) NJW 2000, p. 1555; Decisions of the Federal Court of Justice in Civil Matters (Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ) 154, 306. 105 Hassemer/Hömig, footn. 1, p. 531.

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communities106 and that it is impermissible to oblige a person to pay church tax although he or she is not a member of a religious community because his or her spouse is a member107.

A state authority’s warning against a religious or ideological group is probably state control in the broadest sense. On this, the Federal Constitutional Court has stated that the neutrality of the state does not prevent the state and its organs from dealing with religious and ideological professions of belief. Nor is the neutral state prevented from judging the actual conduct of a religious or ideological group or that of its members in accordance with secular criteria, even if this conduct is ultimately religiously motivated. Along these lines, the Federal Constitutional Court has regarded it as constitutionally unobjectionable if the Federal Government, in the report of a Study Commission, issues critical and warning statements concerning certain religious or ideological association (in the case at hand, the so-called Osho sects)108.

4. Religious communities vs. freedom of appointment for positions of church authority

An essential core area of the religious communities’ right to organise and

administer their affairs independently is the sovereignty and the right of organisation of church offices109. This includes the appointment of officers, the termination of an office and the right of removal from office (suspension)110. According to recent case-law, however, review by state courts as refers its effectiveness is a consideration if an official measure or a measure under labour law infringes fundamental principles of the state legal order111. As regards the staffing of positions of church authority, participation by the state can only be justified by an agreement entered into in a treaty concluded by a religious community and the state. This has occurred in very rare cases, for instance in the Bavarian Concordat of 29 March 1924112, according to which, before the appointment of a new bishop, the Holy See is obliged to “enter into contact, in a semi-official manner, with the Bavarian Government to make certain that no objections of a political nature exist against the candidate”.

106 BVerfGE 19, 206 (216 ff.). 107 BVerfGE 19, 226 (235 ff.); 19, 268 (273 ff.). 108 BVerfGE 105, 279 (294 f.). 109 BVerfGE 70, 138 (164). 110 On this, see BVerfGE 111, 5 ff. 111 See B. II. 3. above – BVerfGE 111, 1 (5 f.). 112 For further details, see Maunz/Dürig, Grundgesetz [commentary on the Basic Law], volume VI, as at March 2007, Art. 140, marginal no. 31.

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5. The state vs. the internal law of religious communities

The precept of respect of the internal church regulations already results indirectly from the state’s neutrality vis-à-vis the religious communities. This precept can also mean that the state is obliged to apply church law. Along these lines, the Federal Constitutional Court has assumed that state authorities and courts are obliged to take the internal church system as a basis in church tax law where it characterises the legal definitions and circumstances from the sphere of the church which are relevant to decisions, in the case at hand the regulation on the membership of a religious community with the consequence of liability to pay church tax113. The Federal Constitutional Court has explicitly stated that this is not an unconstitutional identification of the state with the church114. The Federal Constitutional Court has also found that it was compatible with the constitution that the civil courts, as regards the question whether the use of the indication “Roman Catholic” also serves to indicate the tenets of faith of members, made reference to the Corpus Iuris Canonici (CIC)115. The basis of this case-law was a legal dispute on the question whether a private-law association of followers of Archbishop Lefebvre, who had been excommunicated by the Catholic Church and has passed away in the meantime, was entitled to bear the name “Roman Catholic Oratorium”. Upon proceedings brought before it by several dioceses, the Court ultimately affirmed the protection of the term “Roman Catholic” and sentenced the association to refrain from using this name.

III. Accommodation of the state and religious communities

1. General principle

The organisation of the protection of the freedom of religion and of faith is essentially shaped by the state’s relation to religions and ideologies and to their associations and the churches. In Germany, it is characterised by the state’s neutrality in matters of religion and ideology116. According to the Federal Constitutional Court’s case-law, this obligation on the part of the state to preserve neutrality already follows from Article 4 subsection 1 of the Basic Law, and thus from freedom of faith, and on the other hand, it results from Article 3 subsection 3, Article 33 subsection 3 and Article 140 of the Basic Law in conjunction with Article 136 subsection 1 and Article 137 subsection 1 of the Weimar

113 BVerfGE 30, 415 (422). 114 BVerfGE 30, 415 (422). 115 Federal Constitutional Court, NJW 1994, 2346 (2347). 116 BVerfGE 19, 206 (216); 24, 236 (246); 33, 23 (28) – Refusal of a pastor to take an oath in court; BVerfGE 93, 1 (16) – Crucifix in state schools.

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Constitution117. The state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in questions of faith118. Its neutrality does not prevent the state from promoting churches and religious or ideological associations or from cooperating with them; this, however, may not lead to identification with a particular religious community119. The state must instead be careful to treat the various religious and ideological communities with regard to the principle of equality120. This means that it is prohibited from introducing legal structures in the nature of a state church and privileges for specific denominations or the exclusion of such denominations121. However, the religious and ideological neutrality required of the state is not to be understood as a distancing attitude in the sense of a strict separation of state and church (that is, laicism), but as an open and comprehensive one, encouraging freedom of faith equally for all denominations122. According to the Federal Constitutional Court’s case-law, even where the state cooperates with the churches and religious associations, this may not lead to identification with particular religious communities123.

2. State funding of religious communities

According to Article 137 subsection 6 of the Weimar Constitution, the religious communities that are recognised as corporate bodies under public law are entitled to levy church taxes. This right, which is guaranteed by the constitution, is implemented through non-constitutional law in the church tax laws of the Länder. Church tax is the main source of income of the large churches. What must be distinguished from this is the right of all religious communities to levy contributions from their members, which is covered by their right to organise and administer their affairs independently. In contrast to this, the church tax is a genuine tax within the meaning of revenue law. It is based on a “sovereign power of the state vis-à-vis its citizens granted to the churches and religious societies within the scope determined by statute”124. Due to the interaction of church law on contributions and the legal form of tax, granted by the state, church tax law is a joint affair of state and church. In practice, the Länder use the income tax as the standard for determining the church tax; tax liability is then assessed at about 8 to 9 per cent of the income tax; the respective percentage is determined by the 117 BVerfGE 93, 1 (16 f.). 118 BVerfGE 93, 1 (16 f.). 119 BVerfGE 93, 1 (17). 120 BVerfGE 19, 1 (8); 24, 236 (246). 121 BVerfGE 19, 206 (216). 122 BVerfGE 108, 282 (300) 123 BVerfGE 93, 1 (17). 124 BVerfGE 19, 206 (218).

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churches. The churches can set upper limits to limit the tax burden. The taxes are normally collected by the state fiscal authorities, with the churches reimbursing the administrative expense.

The state can promote the religious communities financially by providing an exemption from fees for them. In doing so, it is, however, bound by the principle of equality125. In tax law, the state creates incentives for supporting the churches by making grants to religious communities deductible as special expenses in a similar manner as donations to benevolent and charitable organisations. Apart from this, the state covers the cost of religious instruction. Moreover, the state can grant funds to the religious communities. This takes place particularly where religious communities and religious associations perform tasks for society, for instance the operation of kindergartens and similar tasks. When granting funds, the state must treat the religious communities and religious associations equally.

3. Protection and promotion of religious values by state and law In this context, the statements made under A. concerning the protection of the freedom of religion apply.

4. “Ordering public tasks” to be performed by religious communities

Due to the cooperative separation of state and church, which has been explained before, and due to the religious communities’ autonomy and their right to organise and administer their affairs independently, state tasks in particular can only be transferred to religious communities if they agree to cooperate in this respect. This takes place by their voluntarily assuming such tasks, for instance in the social field, or by concordats and treaties under church law

IV. Religious communities, education and religious instruction

1. Nature and form of the general education system

In principle, the organisation of the education system is incumbent on the Länder. The fundamental structures and principles are regulated in Article 7 of the Basic Law. These fundamental principles include in particular that according to Article 7 subsection 1 of the Basic Law, the entire education system shall be under the supervision of the state and that according to Article 7 subsection 2 of the Basic Law, the persons entitled to bring up a child have the right to decide whether the child shall receive religious instruction. The right to take a child out of religious instruction ensures that no one may be forced to attend religious instruction126.

125 BVerfGE 19, 1 (7 f.). 126 BVerfGE 74, 244 (251 ff.).

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Moreover, Article 7 subsections 3 and 4 of the Basic Law provide, in principle, the existence of both state schools and private schools.

2. State schools

As regards the state schools, Article 7 subsection 3 sentence 1 of the Basic Law provides that with the exception of non-denominational schools, religious instruction shall be part of the ordinary curriculum; religious instruction within the meaning of this provision can be the teachings of all religious communities127. This regulation makes religious instruction an integral part of the state system of school education and is subject to the state’s organisational sovereignty and to school supervision128. School supervision, however, is modified and restricted in this respect because the religious communities are guaranteed the right to organise the content of religious instruction, in the interest of imparting their tenets of faith129 and to guarantee positive freedom of religion. Within the limits of Article 79 subsection 3 of the Basic Law, the religious communities assume the responsibility for the organisation of the contents of religious instruction; this includes the decision on the participation in religious instruction by pupils who do not adhere to the religion in question130. This results from Article 7 subsection 3 sentence 2 of the Basic Law, according to which without prejudice of the state’s right of supervision, religious instruction shall be given in accordance with the tenets of the religious communities. Moreover, an essential content of regulation of this provision is seen in the fact that only religious communities can assume responsibility for religious instruction. The concept of religious communities (Religionsgemeinschaften) contained in this provision corresponds to that of the religious societies (Religionsgesellschaften) in Article 137 of the Weimar Constitution (see B. II. 1.) and thus presupposes a comprehensive union, in the shape of an association, of the members of one denomination, or of several denominations that are obviously related according to their spiritual content and outward appearance, for the comprehensive compliance with the duties imposed by the common profession of faith.

Independently of religious instruction, the Federal Constitutional Court131

decided in 1975 as regards state schools that the Länder are not prevented from operating state schools in the shape of interdenominational schools with a Christian character. According to this case-law, the fact that a minority of persons entitled to bring up a child does not wish their children to have a Christian education does not stand in the way of the authorisation of giving a state school a Christian character.

127 BVerfGE 102, 370 (396). 128 BVerfGE 74, 244 (251). 129 BVerfGE 74, 244 (252). 130 BVerfGE 74, 244 (254). 131 BVerfGE 41, 29 ff.

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According to this decision, however, the element of Christian education is only permitted to have a minimum extent. The school may not be a missionary school and may not claim exclusive truth for Christian values; the school must also be open to other ideological and religious ideas and values. Accordingly, the affirmation of the Christian values in secular subjects must relate primarily to recognition of Christianity as the formative cultural and educational factor as which it has developed in Western history, and not to truths of faith. If a state school offers objective discussion among all religious and ideological viewpoints on a religious basis, this, according to the Federal Constitutional Court’s case-law, does not subject parents and children to an unreasonable conflict of faith and conscience132.

According to another decision of the Federal Constitutional Court from 1979133, the Länder are not prevented from permitting interdenominational school prayer outside religious instruction in state compulsory schools which are no denominational schools. According to this decision, the fundamental right to negative freedom to profess a belief is not violated by permitting and holding school prayer if the dissenting pupil, or his or her parents, may choose freely and without coercion as to whether or not to participate in prayer. The voluntary nature of participation, which is to be ensured, is no longer deemed to exist if due to the circumstances of the individual case the pupil is afforded no reasonable opportunity to avoid participation in school prayer134.

In contrast, the majority of the First Senate, in 1995, regarded the affixation of crosses or crucifixes in classrooms, which had been ordered by the state, as an infringement of the pupils’ negative freedom of faith and their negative freedom to profess a belief135. A dissenting opinion has been added to this decision. The Federal Constitutional court’s decision on the question whether a woman who wears a headscarf for reasons of her Muslim faith can be appointed as a civil servant has already been dealt with here136. Also in this case, an infringement of the pupils’ negative freedom to profess a belief and a violation of the parents’ right to bring up their children was regarded as possible. Ultimately, the Länder were enjoined to settle this conflict, and thus regulate the possible prohibition of a teacher wearing a headscarf, by a law. In contradistinction to what is known as the “Classroom crucifix decision”, in which the state’s neutrality and the pupils’ negative freedom of religion were at issue, the decision on the teacher wearing a headscarf also concerned the woman’s freedom of religion and the question to what extent civil servants, and teachers in particular, can exercise their freedom of religion in the exercise of their office. As concerns the wearing of religious

132 BVerfGE 41, 29 (51 f.). 133 BVerfGE 52, 223 ff. 134 BVerfGE 52, 223 (238 ff. and 248 ff.). 135 BVerfGE 93, 1 (23 f.), the dissenting opinion is published on pp. 25 ff. – see A II. 5. 136 See A. II. 5.

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symbols by pupils, for instance the wearing of a headscarf by pupils of the Muslim faith, no statutory restrictions apply in Germany.

3. Private schools

Article 7 subsections 4 and 5 of the Basic Law guarantee everyone, that is, also the religious communities, the right to establish and operate private schools137. As a substitute for state schools, they require according to Article 7 subsection 4 sentence 2 of the Basic Law, the approval of the state. This approval must be given where the prerequisites of sentences 3 and 4 and, if applicable – that is, in the case of private elementary schools – the preconditions of Article 7 subsection 5 of the Basic Law are fulfilled. The Federal Constitutional Court regards this as a guarantee of the private school as an institution138. With the freedom of establishment regulated in Article 7 subsection 4 sentence 1 of the Basic Law, the constitution guarantees the special characteristic of individual realisation that is inherent to private schools. The area which is thus removed from state influence is characterised by the fact that the instruction imparted in private schools is organised and implemented on the schools’ own authority, in particular as regards the educational objectives, the ideological basis, and the method and contents of teaching. This openness, on the part of the state, for the variety of forms and contents in which a school can present itself corresponds to the values of the free democratic fundamental order which professes its belief in human dignity and in religious and ideological neutrality139. Accordingly, the state is not only prohibited from disadvantaging equivalent substitute schools solely because of their different forms and contents of education (also of a religious and ideological nature). Over and above this, the state is obliged to protect and promote the private schools140. However, a duty to financial promotion only exists where otherwise, the continued existence of the system of substitute schools as an institution would be evidently endangered141. If the legislature, in the context of its duty of protection, decides to support the system of private substitute schools, it is bound by the principle of equality in doing so. Along these lines, the Federal Constitutional Court has regarded a state regulation on the funding of private schools as unconstitutional because according to the regulation, the denominational and ideological schools were supposed to receive considerably more funding than other substitute schools142.

137 BVerfGE 27, 195 (200). 138 BVerfGE 27, 195 (200 f.). 139 BVerfGE 27, 196 (201 f.). 140 BVerfGE 75, 40 (65). 141 BVerfGE 75, 40 (67). 142 BVerfGE 75, 40 (71 ff.).

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The fundamental right of the freedom to establish and operate private schools does not mean, however, that a private school is completely free from state influence. The Federal Constitutional Court describes the German system as a system in which the private schools enjoy “limited freedom of instruction”143. In this context, it is constitutionally permissible to distinguish between non-recognised substitute schools on the one hand and state schools and recognised substitute schools on the other hand and to grant them different rights. In the Federal Constitutional Court’s understanding, substitute schools are private schools which, according to the overall objective pursued by their establishment are supposed to serve as a substitute for a state school which exists in the respective Land or whose establishment is in principle provided. The substitute schools are to be distinguished from complementary schools (Ergänzungsschulen); for complementary schools, as a general rule, comparable state schools do not exist and compulsory school education cannot be complied with there144. Already Article 7 subsection 4 sentence 2 of the Basic Law regulates that as a substitute for state schools, private schools shall require the approval of the state and shall be subject to the law of the Länder. Sentences 3 and 4 provide that this approval must be given where private schools are not inferior to the state schools in their educational objectives, their facilities and the professional training of their teaching staff and segregation of pupils according to the means of the parents is not promoted. Approval must be withheld if the economic and legal position of the teaching staff is not sufficiently assured. From these provisions it can be inferred that as regards the qualification of the teaching staff, an examination already in the context of the approval procedure, and thus a subsequent control by the school supervision authority, is conceivable. As for the rest, in the case of ideological or denominational schools, the respective religious community’s right to organise and administer its affairs independently as regards the selection of its staff should be relevant.

4. Church universities / faculties of theology

In principle, the training of theologians and the establishment of faculties of theology falls into the sphere of guarantee of the “own affairs” within the meaning of Article 137 subsection 3 of the Weimar Constitution. It is inferred from this that the freedom of the churches in the sphere of institutions of higher educations from Article 140 of the Basic Law in conjunction with Article 137 subsection 3 of the Weimar Constitution is constitutionally secured. The faculties of theology form part of the joint affairs of state and church; legal positions of the state and of the church coincide in them. As a general rule, the equipment of the faculties and their funding by the state, the cooperation between the state and the respective religious

143 BVerfGE 27, 195 (201). 144 BVerfGE 27, 195 (202).

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community as regards the appointment of professors as well as the establishment and the continued existence of faculties of theology are based on concordats or on church treaties concluded between the religious communities and the respective Länder. From Article 140 of the Basic Law in conjunction with Article 137 subsection 3 of the Weimar Constitution in conjunction with Article 4 subsections 1 and 2 of the Basic Law it also follows that the religious communities can determine the contents of teaching145.

V. Restitution of property

The guarantee of church property anchored in Article 138 subsection 2 of the Weimar Constitution protects certain rights of the religious communities that are equivalent to assets due to the religious or ideological purpose of these rights. Subsection 2 establishes a constitutional guarantee to prevent secularisation and acts that are similar to secularisation. This regulation is based on the idea that religious freedom is essentially dependent on the substantive and material framework conditions of its realisation, which means that it requires an appropriate „substantive essence” and material basis. The purpose of Article 138 subsection 2 of the Weimar Constitution is to guarantee the protection of the status and the freedom of the churches in their material basis as assured by Article 4 subsections 1 and 2 of the Basic Law and Article 137 of the Weimar Constitution146. In the Federal Constitutional Court’s case-law, this provision has several times provided the occasion of dealing with disputes of competing church congregations about the ownership rights or rights of use of churches147. In doing so it has made it clear that the guarantee of church property does not protect unjustified ownership as against someone who has acquired ownership of the disputed assets through an act of assignment under civil law which complies with the prerequisites established by Article 138 subsection 2 of the Weimar Constitution148. In a recent decision, the Federal Constitutional Court had to deal with the question whether the Free State of Bavaria can demand the surrender of a church building which meanwhile was no longer subject to the jurisdiction of the church to which it had originally been dedicated by King Ludwig I in 1823. In its judgment, the Federal Constitutional Court essentially focused on the 145 See on this subject Hofmann, in: Schmidt-Bleibtreu/Hofmann/Hopfauf, GG, [commentary on the Basic Law], 11th edition, 2008, Art. 140, marginal no. 15; Korioth, in: Maunz/Dürig, Grundgesetz, loose-leaf edition, as at March 2007, Art. 140, marginal no. 69 f. 146 BVerfGE 99, 100 (120 f.). 147 BVerfGE 99, 100 ff.; Federal Constitutional Court, Preliminary review committee, NJW 1984, 968 and First Chamber of the Second Senate, Deutsches Verwaltungsblatt – DVBl. 1992, 1020 (1021 ff.). 148 Federal Constitutional Court, Preliminary review committee, NJW 1984, 968 f. and First Chamber of the Second Senate, DVBl. 1992, 1020 (1021 ff.).

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understanding of itself which the church has that was ultimately supposed to benefit from the church building according to the original purpose of the dedication. As, however, the metropolitan of the church to which the church building had originally been dedicated had rescinded the right of use under church law and had prohibited holding services and official acts there, the Federal Constitutional Court regarded it as compatible with Article 138 subsection 2 of the Weimar Constitution that the Land Bavaria could demand the surrender of the church building because the revocation of the assignment for use exclusively served to hand over the church to the entity which was actually entitled to receive it according to the understanding the church had of itself. This was not an interference with a purely intra-church dispute incompatible with the principle of state neutrality, but the granting of legal protection, which is reserved to the state courts.149

C. LEGISLATION AND THE DIALOGUE BETWEEN THE EUROPEAN UNION AND CHURCHES AND RELIGIOUS COMMUNITIES

I. Reference list of court decisions related to the matters

under A. and B.:

In the context of its translations of its decisions into English, the Federal Constitutional Court has published a volume containing decisions of the Federal Constitutional Court on religious freedom and the law of the churches. The title of the publication is:

Decisions of the Bundesverfassungsgericht – Federal Constitutional Court –

Federal Republic of Germany Volume 4: The Law of Freedom of Faith and the Law of the Churches; Baden-Baden (Nomos) 2007. ISBN 978-3-8329-2132-3.

This publication contains, inter alia, the following landmark decisions:

Order of the First Senate of 16 October 1968 – 1 BvR 241/66 – BVerfGE 24, 236 – “Rag collector (Rumpelkammer) case”.

Order of the First Senate of 19 October 1971 – 1 BvR 387/65 – BVerfGE 32, 98 – “Faith healer case”.

Order of the First Senate of 17 December 1975 – 1 BvR 63/68 – BVerfGE 41, 29 ff. – “Interdenominational schools with a Christian character case”.

Order of the First Senate of 16 October 1979 – 1 BvR 647/70 and 7/74 – BVerfGE 52, 223 – “School prayer case”.

149 BVerfGE 99, 100 ff.

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Order of the First Senate of 16 May 1995 – 1 BvR 1087/91 – BVerfGE 93, 1 ff. – “Classroom crucifix case”.

Judgment of the Second Senate of 19 December 2000 – 2 BvR 1500/97 – BVerfGE 102, 370 – “Jehovah’s Witnesses case”.

Judgment of the First Senate of 15 January 2002 – 1 BvR 1783/99 – BVerfGE 104, 337 – “Permit for ritual slaughter case”.

Order of the First Senate of 26 June 2002 – 1 BvR 670/91 – BVerfGE 105, 279 – “’Youth sect’ warning case”.

Judgment of the Second Senate of 24 September 2003 – 2 BvR 1436/02 – BVerfGE 108, 282 – “Headscarf case”.

II. Reference list of laws related to the matters

under A. and B.:

The relevant provisions of the Basic Law are as follows: Article 1 (1) and (2) of the Basic Law (1) Human dignity is inviolable. To respect and protect it is the duty of all State authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. Article 3 of the Basic Law (1) All persons are equal before the law. (2) … (3) No one may be disadvantaged or favoured because of his … faith, or his religious … opinions. … Article 4 (1) and (2) of the Basic Law (1) Freedom of faith and of conscience, and freedom of creed religious or ideological, are inviolable. (2) The undisturbed practice of religion is guaranteed. Article 6 (2) sentence 1 of the Basic Law (2) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent upon them. Article 7 (1) – 7 (5) of the Basic Law (1) The entire education system shall be under the supervision of the State. (2) The persons entitled to bring up a child have the right to decide whether the child shall receive religious instruction. (3) Religious instruction shall form part of the ordinary curriculum in state schools, except in non-denominational (bekenntnisfreie) schools. Without prejudice

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to the State’s right of supervision, religious instruction shall be given in accordance with the tenets of the religious communities. No teacher may be obliged against his will to give religious instruction. (4) The right to establish private schools is guaranteed. Private schools, as a substitute for state schools, shall require the approval of the state and shall be subject to the statutes of the Länder. Such approval must be given when private schools are not inferior to the state schools in their educational aims, their facilities, and the professional training of their teaching staff, and segregation of pupils according to the means of the parents is not promoted. Approval must be withheld if the economic and legal position of the teaching staff is not sufficiently assured. (5) A private elementary school shall be permitted only if the education authority finds that it serves a special pedagogic interest, or if, on the application of persons entitled to bring up children, it is to be established as an interdenominational school or as a denominational school or as a school based on a particular ideological persuasion (Weltanschauungsschule) and a state elementary school of this type does not exist in the municipality. Article 33 (3) of the Basic Law (3) Enjoyment of civil and political rights, eligibility for public office, and rights acquired in the public service shall be independent of religious denomination. No one may suffer disadvantage by reason of his adherence or non-adherence to a denomination or to an ideological persuasion. Article 123 (2) of the Basic Law Subject to all rights and objections of the interested parties, the State treaties concluded by the German Reich concerning matters for which, under this Basic Law, Land legislation is competent shall remain in force, if they are and continue to be valid in accordance with general principles of law, until new state treaties are concluded by the agencies competent under this Basic Law, or until they are in any other way terminated pursuant to their provisions. Article 140 of the Basic Law The provisions of Articles 136, 137, 138, 139 and 141 of the German Constitution of 11 August 1919 are an integral part of this Basic Law. Article 141 of the Basic Law Article 7 (3) sentence 1 shall not apply in a Land in which different provisions of Land law were in force on 1 January 1949. Article 136 of the Weimar Constitution (1) Civil and political rights and duties shall be neither dependent on nor restricted by the exercise of religious freedom.

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(2) Enjoyment of civil and political rights and eligibility for public office shall be independent of religious denomination. (3) No one is bound to disclose his religious convictions. The authorities shall have no right to inquire into a person’s membership of a religious society except to the extent that rights or duties depend thereon or that a statistical survey ordered by statute so requires. (4) No one may be compelled to perform any ecclesiastical act or ceremony, to participate in religious exercises or to use a religious form of oath. Article 137 of the Weimar Constitution (1) There shall be no state church. (2) The freedom to form religious societies shall be guaranteed. The union of religious societies within the territory of the Reich shall not be subject to any restrictions. (3) Every religious society shall organise and administer its affairs independently within the limits of the statutes valid for all. It shall confer its offices without participation of the State or the civil community. (4) Religious societies shall attain legal capacity according to the general provisions of civil law. (5) Religious societies shall remain corporate bodies under public law insofar as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application where their constitution and the number of their members offer an assurance of their permanency. Where several such religious societies established under public law form one union, also such union shall be a corporate body under public law. (6) Religious societies that are corporate bodies under public law shall be entitled to levy taxes in accordance with Land law on the basis of the civil taxation lists. (7) Associations whose purpose is the common cultivation of an ideological persuasion shall have the same status as religious societies. (8) Such further regulation as may be required for the implementation of these provisions shall be a matter for Land legislation. Article 138 of the Weimar Constitution (1) Rights of religious societies to state contributions on the basis of a statute or contract or special legal title shall be redeemed by means of Land legislation. The principles governing such redemption shall be established by the Reich. (2) The right to own property and other rights of religious societies and associations in respect of their institutions, foundations, and other assets intended for purposes of worship, education, or charity shall be guaranteed.

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Article 139 of the Weimar Constitution Sundays and holidays recognised by the state shall remain protected by law as days of rest from work and of spiritual edification. Article 141 of the Weimar Constitution To the extent that a need exists for religious services and pastoral care in the army, in hospitals, in prisons, or in other public institutions, religious societies shall be permitted to perform religious acts, but without compulsion of any kind.

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THE HUNGARIAN CONSTITUTIONAL COURT'S RULINGS ON FREEDOM OF RELIGION

Prof. dr. Péter PACZOLAY

President of the Constitutional court of Hungary

In February 1993 the Constitutional Court of the Republic of Hungary delivered three rulings that referred to freedom of religion and worship, as well as to the separation of State and Church.

Background and historical antecedents

Hungary has a Roman Catholic majority (65 % of the population) with a rather strong presence of Protestantism (25 %). Before Communist takeover the Catholic Church had traditionally a great impact on both society and governmental politics. After 1945, Communists tried - successfully - to diminish the impact of the Church. Large land properties of the Church were nationalized (1945), the schools and educational institutions operated by the Church were taken over by the State (1948). After the Communist rule had been definitely established, the systematic and organized attacks on the Catholic Church were strengthening (other denominations were more apt to collaborate with the regime). Cardinal Mindszenty, head of the Catholic Church was persecuted and sentenced by false accuses, religious orders were dissolved, their members deported for shorter or longer periods. In the seventies gradually, but in a somehow controversial way the relation of Church and State began to be more stable, especially after the agreement between Hungary and the Vatican.

In the process of the changes taking place in 1989 and 1990 the constitutional regulation of the Church was put very soon on the agenda. The first task to be realized was to restore freedom of religion and worship. The fundamentally important 1989 Amendment of the Constitution declared that in the Republic of Hungary everyone has a right to the freedom of thought, conscience, and religion1. Paragraph 3 of the same article provides that in the Republic of Hungary the Church shall be separate from the State. The general constitutional rules were elaborated in details by a statute enacted already by the old Parliament (having still a Communist majority). The Act No. 4 of 1990 on the Freedom of Conscience and of Religion, and on the Churches gave precisely elaborated guarantees for the exercise of religion, and on the functioning of the Churches (registry of the Churches, the relation of State and Church, the financial activity of the Churches, their cultural activity and health services).

1 Constitution of the Republic of Hungary, Art. 60, para 1.

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The first free elections held in March and April of 1990 were won by a coalition composed by the Hungarian Democratic Forum, Independent Smallholders' Party, and the Christian Democrats that strongly emphasized the importance of restoring Christian values. The Government introduced a bill on the material compensation of Churches. After sharp and emotionally heated debates the legislature enacted a statute on the restitution of former Church property (Act 32 of 1991).

This statute has a double-fold scope. First, as its preamble formulates, a partial remedy for serious harms committed against the Church; secondly, to provide Churches with the necessary material and financial means for the continuation of their activity. In order to realize these goals the statute regulates the conditions and the ways of restitution of former Church property. The basic principle of the restitution is functionalism -- Churches are entitled to the restitution of their former built-up real property as far as they need it for the exercise of a) religious, b) monastic, c) educational, d) health service, e) cultural functions, and if at the time of the confiscation they were utilzed for these purposes. The natural restitution of the church property is an exception from the general rules of restitution: in Hungary restitution of confiscated property was executed by the distribution of special kind of vouchers in compensation for the property losses. Natural or in kind restitution was ruled out also by the Constitutional Court because of its discriminating character2. So the restitution of church real property followed different way, justified by the above mentioned arguments.

The process of the restitution is the following. A conciliation committee is set up by the representatives of the Government and the interested Church. The committee draws up the list of the real estates proposed for restitution to the Churches. The proposal of the committee is approved by the Government. The restitution takes place gradually in a time period of ten years. The real estates listed in the proposal are subject to a restraint on alienation and encumbrance. The Church can come to terms with the local government as the owner of the former church property in order of the delivery of the real estate.

Different claims were filed at the Constitutional Court against the statute. (The Hungarian Constitutional Court does not publish the names of the applicants.) Some claims challenged the constitutionality of the entire statute; some others only its particular provisions, especially which made possible to give back school buildings to the church without guaranteein further functioning of a State-run school in the same local community.

The decision of the Court was published on February 12, 1993.3 Justice Sólyom, the President of the Constitutional Court delivered the opinion of the Court. The decision of the Court concerns two great set of problems. First, the content of

2 Decision of the Constitutional Court: No. 9/1990. (IV.25.) AB határozat, in MAGYAR KÖZLÖNY (Official Gazette) No. 36/1990. 3 Decision of the Constitutional Court: No. 4/1993. (II.12.) AB határozat, in MAGYAR KÖZLÖNY (Official Gazette) No. 15/1993.

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freedom of religion, and the realization of freedom of religion in school education; secondly, the conditions of the two-thirds majority requirement at enacting a statute effecting basic rights.

The content of freedom of religion

The ruling declared that "The State must remain neutral in questions of religion and conscience. From the right to freedom of religion results the duty of the State to guarantee the possibility of the free formation of individual belief.

The separation of State and Church does not imply that the State should disregard the peculiarities of the religion and the Church.

State (public or board) schools must not be committed to any denomination. The State has to make possible the establishment of ecclesiastic schools, but the State itself has no duty to set up such schools."4

Where the State gives the public school building into the property of the Church, it has to make it possible for children to attend non-religious schools. This conclusion cannot mean that a disproportionate burden is placed on those who wish to attend such non-denominational schools.

In the first part of the reasoning the Court interpreted the content of freedom of religion. Freedom of religion - according the interpretation of the Court - consists of three elements: first, freedom of belief; secondly, free exercise of religion (freedom of worship); thirdly, the freedom of association and assembly for religious purposes.

In order to explain the content of freedom of religion, the Constitutional Court examined the relation of this peculiar right to other fundamental rights, namely to the right to human dignity, and the right to freedom of expression. The Constitution provides for the right to human dignity5, and the Constitutional Court referred to it particularly in the Abortion Case6. Human dignity determines the legal status of the individual. The practice of the Constitutional Court considers the right to human dignity as the general right to personality, that includes also the right of the individual to flourish and develop his or her personality.

Freedom of expression is put to the highest rank in the hierarchy of the so-called "communication" rights, that include freedom of thought and religion, too. The Constitution protects the free communication both as individual behavior and

4 Ibid. 5 "In the Republic of Hungary, everyone has the right to life and human dignity, of which no one shall be arbitrarily deprived." Constitution of the Republic of Hungary, Art. 45, para 1. 6 Decision of the Constitutional Court: No. 64/1991. (XII.17.) AB határozat, in MAGYAR KÖZLÖNY (Official Gazette) No. 139/1991.

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social process without regard to its content7. The competence of the State in that respect is limited to protection of the free circulation of ideas. The State's competence is limited to the protection of these processes; from this results its duty to remain neutral towards the questions of content and substance.

The Court held that the principle of the separation of State and Church explicitly provides for the neutrality of the State in religious matters. The neutrality of the State in this respect is closely connected to the separation of Church and State. At this point the Court had to face a delicate task. The liberal constitutional doctrine of the separation of State and Church had no traditional roots in Hungary. The Court's ruling therefore can be considered as a first attempt to interpret the respective constitutional provision, and thus regulate this relation. The separation principle in the interpretation of the Court has to meet a series of requirements: first, the State must not be institutionally associated with any denomination (the prohibition of the established Church); secondly, the State must not identify itself with the teaching of any Church; finally, the State must not interfere with the internal affairs of the Churches, and especially is excluded from taking positions in questions relating to faith. Consequently the State should treat the Churches as equal. Its task is nothing more than to provide the neutral and general legal framework for the separation of State and Church.

The Court did not stop at this point. Two warnings were attached to this part of the reasoning. First, the Court strongly emphasized the duty of the State to foster the freedom of religion in the positive sense of the concept by facilitating the possibility for citizens to get acquainted with religious teachings -- declaring that neutrality does not mean indifference and passivity. In the Court's understanding, the defense of a fundamental right is not a simple passive protection; the State has duties in actively promoting the exercise of that right. Secondly, the separation of Church and State is largely determined by the traditions of the country - as by the historical roles that the so-called historical Churches played. In this field regarding the separation principle one should emphasize not the separation but the cooperation, and the equal importance of the negative and positivve sense of freedom of religion.

Freedom of religion and school education

The next part of the decision focuses on a peculiar issue, namely on the

realization of freedom of religion in the field of compulsory school education. The above cited Abortion Case had already declared the duty of the State in providing institutional and legal framework for the realization of the fundamental rights.8 In

7 As explained in the Constitutional Court's decision No. 30/1992. (V.26.) AB határozat, in MAGYAR KÖZLÖNY (Official Gazette) No. 53/1992. 8 Decision of the Constitutional Court: No. 64/1991. (XII.17.) AB határozat, in MAGYAR KÖZLÖNY (Official Gazette) No. 139/1991.

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the case of schools committed to religious education the State's duty is only to create the legal framework; it is not obliged to set up such schools. From the neutrality of the State results that the public schools should remain neutral, too. The State-run schools have a duty to provide objective, critical and pluralist informations to the pupils.

The claims against the statute were focusing on a peculiar question that could be the source of conflicts. The question was formulated in that way whether it is unconstitutional if the State does not operate a neutral school in all communities. The interpretation of the Court set up two requirements to be met. The State must provide a real alternative for those who intend to go to neutral public school, and guarantee that to frequent a neutral school should not be a disproportional burden. Whether a burden is disproportional or not, depends on the concrete circumstances. The Court holds that it is not unconstitutional if the only school of a community is religious school, but the State and the local government should guarantee a public school for those who reject the idea of attending a religious school.

The requirement of the two-thirds legislative majority

After discussing the different aspects of public and ecclesiastical education, the

Court had to take up position in the question of a peculiar Hungarian constitutional arrangement: the two-thirds majority requirement for the enactment laws on basic freedoms and duties. When the constitutional amendment of 1989 was prepared, the specific category of "laws having constitutional authority" was introduced. The original idea beyond this regulation was to unburden the Constitution. In 1990, a political compromise followed by a constitutional amendment modified this situation, and now it occasionally defined if enacting a statute requires a two-thirds majority. The Court's opinion refers to the fact that the list of legislative subjects requiring a two-thirds majority was result of a political compromise, and it reveals that the system of the laws requiring two-thirds majority do not form a clear hierarchical order. The regulation of the most important basic rights (right to life, to human dignity, to personal freedom, etc.) do not appear among classified laws, all of these rights can be regulated by simple majorities. Some rights in the Constitution are differentiated by special guarantees - for example their exercise cannot be limited even during a state of war; but only three of them require a two-thirds majority law (among them religious freedom), while for most of them a law passed by a simple majority is sufficient.

Therefore, the present singling out for the two-thirds requirement does not establish a hierarchy on principle among the basic rights; only their political importance is indicated for the political groups which craft agreements on amendments to the Constitution. Therefore the Court concluded that even if the Constitution requires a two-thirds majority vote for the enactment of a legislative act on a fundamental right, the same requirement does not apply in respect of all laws touching upon that specific right. The substantial requirement to be met by the

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qualified laws is that they should regulate the principal trend of the realization and protection of the respective fundamental right. Further details can be regulated by laws enacted by a simple majority. The most important restriction is that these enactments cannot amend the law passed by a qualified majority. The Constitutional Court ruled that the Law on the Freedom of Religion and the Churches is the basic regulation in this field, and it has to be enacted by a qualified majority. It was appropriate to pass the Law on the Restitution of Church Property by a simple majority of votes, thus the Court upheld the law.

Restraint on basic rights

The different claims challenging the constitutionality of the law presented

several arguments against it, mainly on grounds of discrimination. According to the claimants the in kind, natural restitution of church property

leads to an unconstitutional discrimination among Churches and other civic organizations. The Court rejected the claims of discrimination, ruling that there is no unconstitutional discrimination among churches and other organizations. The Court justifies the different treatment with the functional principle that limit the cases of restitution.

A provision of the law provides for financial compensation by the justification that it would serve to guarantee financial means for the functionally useful activity of the Church. This support is not linked to any condition. Why are only the Churches entitled to financial compensation while other organizations are not? The Court found this rule to be an unconstitutional discrimination in the lack of any justification. Therefore the Constitutional Court declared null and void this single provision of the law.

Another difficult issue was the problem of the restraint on the property of local governments by a ten-years long restraint on alienation and encumbrance. The Court upheld the law, and rejected the claims, arguing that the aim of the provision was not aimed at to put limitations particularly on the property of the local governments. The regulation affects all those who are the owners of former Church property.

Two out of the ten judges wrote dissented, and a justice published a concurring opinion.

The notion of the Church

Soon after the publication of the former case, the Court delivered its opinion of

two "minor" cases. A claimant challenged the Law on the Freedom of Conscience and of Religion, and on the Churches, on the ground that the requirements to register a Church are discriminative. The law requires at least one hundred members to found a Church. The Court emphasized that this distinction has no influence on the most important functions of the religious communities (worship,

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education, social services)9. Moreover, the State cannot interfere with the affairs of religious communities, even if they are not established as a Church. The Court already dealt with the notion of the Church in the Church Property Case pointing out the peculiar characteristics of the Churches, namely that they were founded for the exercise of worship, and not to represent a particular interest. Religion determines the entire personality, and all aspects of life. This justifies the special status of the Churches.

Saturday Work Case

In another claim the leaders of the Jewish religious community complained that the most important Jewish holidays are not public holidays. The Court found that this circumstance does not discriminate among the different religions.10 The greatest holidays of the Christian religions nowadays have a secularized and general social character. They are red-letter days not because of their religious content but because of economic considerations and because they comply with the expectations of society. Under Hungarian labor law, citizens have the right to go on leave at least for five days a year without the consent of the employer. This provision primarily serves the interests of those who profess a religion and operates to provide an effective guarantee of the free exercise of religion. Therefore the Court upheld the validity of the law.

Neutrality of the state towards religion

Mostly political conflicts were turned into constitutional disputes, and brought before the Constitutional Court. Both political and legal arguments very often used the concept of the neutrality of the state. Several misunderstandings burden this question. Beside the general theory of the neutrality of the state and of the neutrality towards religion is by far not a new concept in order of deepen the Kulturkampf, but they have a long history. Even the concept of denominational neutrality was used already by a Hungarian law in 1868 in connection with the public schools in villages. The debates regarding neutrality can be simplified to the difference between the German and American models of state-church relations.

The American model is built upon the strict separation and neutrality, though these principles cannot be fully realized. Strict neutrality excludes the discrimination based on religion (conscencious objectors, denial of taking oath,

9 Decision of the Constitutional Court: No. 8/1993. (II.27.) AB határozat, in MAGYAR KÖZLÖNY (Official Gazette) No. 22/1993. 10 Decision of the Constitutional Court: No. 10/1993. (II.27.) AB határozat, in MAGYAR KÖZLÖNY (Official Gazette) No. 22/1993.

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etc.). Strict separation prohibits state in providing financial aid for churches even if they deliver public functions.11

The German model lays more stress on the positive meaning of freedom of religion, obliging the state to forward a social order in which the religious personality can appropriately develop. The German Basic Law incorporated the respective articles of the Weimar Constitution, and, while including the principle of state neutrality toward religion, defines churches as "religious bodies under public law", and they can levy taxes, and the Constitution also provides for religious instruction in public schools.12 The German understanding of state neutrality has been charactarized as comprising non-intervention into the life of religious organizations, nonidentification with any denomination, equality of public benefits and burdens for denominations, and cooperation between state and church.13 Neutrality of the state toward church is considered now on a constitutional level.14

Can religion help in shaping a new society?

In 1990 all political parties agreed upon that religion and the church should have a definite place in the process of building a new society, and reconstructing democratic politics. They reached consensus also on the cultural and educational role of the church. Nevertheless, while realizing these noble goals, more and more disagreement came to light that divided sharply the political parties. The governing coalition stood up for the formal and extensive participation of church in building the new society, and intended to provide the necessary financial means for that role, too. Opposition parties, in different extent, tried to limit the sphere of authority of the church, and gave very loud expression for the necessity of separating state and church. Two question became crucial in the conflict: the restitution of confiscated church property, and closely connected to this the status of denominational schools and religious instruction in public schools. These questions serve as examples to the problem whether religion and church works as a cohesive or dividing force in the process of shaping a new political and social order.

11 For the contradiction between the two strict principles see Mark Tushnet, Red, White, and Blue, A Critical Analysis of Constitutional Law. Harvard University Press, Cambridge, Mass., 1988, 249-256. 12 Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Duke University Press, Durham and London, 1989, 445. 13 Kommers, 472 quoting an unpublished paper of Cole Durham on "Religion and the Public Schools: Constitutional Analysis in Germany and United States" 14 For the concept of state neutrality in the jurisprudence of the United State Supreme Court see e.g. Roemer v. Board of Public Works, 426 U.S. 744 (1976)

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Restitution of church property

The first free elections held in March and April of 1990 were won by a coalition composed by the Hungarian Democratic Forum, Independent Smallholders' Party, and the Christian Democrats; all of these parties strongly emphasized the importance of restoring Christian values. The government introduced a bill on the material compensation of churches. After sharp and emotionally heated debates the legislature enacted a statute on the restitution of former church property (Act 32 of 1991).

This statute had a double-fold scope. First, as its preamble formulates, provided a partial remedy for serious harms committed against the church; secondly, intended to provide churches with the necessary material and financial means for the continuation of their activity. In order to realize these goals the statute regulates the conditions and the ways of restitution of former church property. The basic principle of the restitution is functionalism -- churches are entitled to the restitution of their former built-up real property as far as they need it for the exercise of a) religious, b) monastic, c) educational purposes, d) for health service, e) cultural functions, and if at the time of the confiscation they were utilized for these purposes. The natural restitution of the church property is an exception from the general rules of restitution: in Hungary restitution of confiscated property was executed by the distribution of special kind of vouchers in compensation for the property losses. Natural or in kind restitution was ruled out also by the Constitutional Court because of its discriminating character15. So the restitution of church real property followed a different way, justified by the above mentioned arguments.

The process of the restitution is the following. A conciliation committee is set up by the representatives of the government and the interested church. The committee draws up the list of the real estates proposed for restitution to the churches. The proposal of the committee is approved by the government. The restitution takes place gradually in a time period of ten years. The real estates listed in the proposal are subject to a restraint on alienation and encumbrance. The church can come to terms with the local government as the owner of the former church property in order of the delivery of the real estate.

Conclusions

The Constitutional Court of Hungary in its decisions laid down the theoretical

and practical foundations of the relation of the separated church and state, and interpreted the content of freedom of religion. This proved to be a particularly difficult task because of the lack of historical and theoretical antecedents in

15 Decision of the Constitutional Court: No. 9/1990. (IV.25.) AB határozat, in MAGYAR KÖZLÖNY (Official Gazette) No. 36/1990.

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Hungary. Generally speaking, the Court tried to combine the classical liberal constitutional doctrine of free exercise of religion and the non-establishment principle with an active role of the state in protecting freedom of religion, and in promoting ideological pluralism.16

Different levels of church influence are outlined in the vague situation of political changes in post-Communist Hungary. The first and obvious solution would be a church sticked exclusively to religious matters. Church in Hungary traditionally has more far-reaching goals. It claimed to grow to the role of leading society, of helping reconstruct a civil society out of the isolated and diverging groups of society, to be present as a moral force that gives a moral cohesion to the fragmented society. This morally leading role would not violate the principle of the neutrality of the state, it does not mean the clericalization of the secular state. The church fulfils its mission primarily by exercising its main task, the teaching of religion and realizing free exercise of religion. Additionally it can play a role by morally leading society, and delivering important services in the field of morals, education and welfare. Any further attempts to attain positions within the state, would violate the separation of church and state.

Experiences of the first years of democracy in Hungary show that people accept the role of churches in establishing the new order as long as it remains in a restricted bounder; when churches step over this limited role, and especially when they claim or are assigned to an active political role, their activity meets more hostility and refusal, and becomes a divertive force.

16 The Hungarian Court's decision was attacked both by churches as being too liberal, and by liberals as being too illiberal and acting against the principle of non-establishment.

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CONSTITUTIONAL JURISPRUDENCE IN THE AREA OF FREEDOM OF RELGION AND BELIEFS

RESPONSE OF IRELAND

Flannan BRENNAN

Judge, Judicial Studies Institute

The principles of religious tolerance and freedom enshrined in the Constitution of the United States of America were the result of pragmatic compromise rather than liberal sentiment on the part of the authors of that celebrated document.The Constitution of Ireland in contrast is more complicated,embracing,as it does,liberal democratic principles and overtly christian, even Catholic tenets and beliefs.In 1937,this was not a matter of enormous controversy, as Catholicism dominated an unquestioning Ireland.Much has changed during the seventy decades since-in particular some twenty-three amendments to the constitution.


Article 44.2.1º of the Irish Constitution states that: “Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.” Freedom of conscience has been held by the courts to relate specifically to a religious belief. In McGee v. Attorney General1 the plaintiff argued that the ban on the importation of contraceptives was an unconstitutional restriction on her right to freedom of conscience. Walsh J., in the Supreme Court, stated that this was not so.

Religious values

In The People (Director of Public Prosecutions) v. Draper2, a man had claimed that he had been sent by God to damage certain religious statues. McCarthy J. said that the Court was not in any way questioning the sincerity of the man’s beliefs but that the guarantee of freedom of conscience and the free profession and practice of religion was subject to public order and, in this case, the right of others to property which the law must protect. In Murphy v. Independent Radio and Television Commission, the Irish courts upheld a provision which prevented the advertisement of material “directed towards any religious or political end”3. Barrington J., in the Supreme Court, held that the ban did constitute a limitation on the plaintiff’s 1 McGee v. Attorney General [1974] I.R. 284. 2 The Irish Times (24th March, 1988). 3 Radio and Television Act 1988, s. 10(3).

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constitutional right but that this restriction was proportionate as the policy behind it was to prevent unrest that could result from the broadcast of matters that had proved divisive in the past4.

Protection of religious feelings

There is no prohibition on the use of religious symbols in public under Irish law.

The overwhelming allegiance to religion in Ireland is mainly – though not

exclusively – a matter of private practice. Unlike Great Britain and the United States, coins bear no message that could be regarded as religious. But many public manifestations of religion – such as ceremonies at defence establishments, the daily broadcasting of the Angelus on the radio and television –could hardly be impugned because of Article44.1.

The use of religious symbols in public is becoming more controversial with

changes in Ireland’s religious demography5. There was public controversy in 2007 when an Irish person of the Sikh religion was refused permission to wear the turban associated with his religious faith as a member of the Garda Síochána [Irish police force] reserve force6. The Garda Síochána has indicated that, in light of this decision, it will rethink its position on the display of other religious symbols such as the crucifix or the wearing of ashes on the forehead on Ash Wednesday7. This was not litigated before the courts. .

The protection of religious feelings in Ireland is contained in Article 40.6.1.iº.which guarantees freedom of expression but specifically provides that:

4 This provision was also upheld as a legitimate restriction on the plaintiff’s freedom of expression under Article 10 of the European Convention on Human Rights. Murphy v. Ireland. (2004) 38 E.H.R.R. 212. 5 In the census of 1936, just prior to the enactment of the Irish Constitution, there were 2,968,420 people in Ireland, of whom 2,773,920 were Roman Catholics, 145,030 were Church of Ireland (incl. Protestant), 28,067 were Presbyterian, 9,649 were Methodist, 3,749 were Jewish and only 8005 were from any other religion (this would have included those people with no religion and those who did not state their religion in the census). In the Census of 2006 there were 4,172,013 people in Ireland, of whom 3,644,965 were Roman Catholic, 118,948 were Church of Ireland (including Protestant), 10,768 were Methodist, 21,496 were Presbyterian, 28,028 were from another Christian religion, 31,799 were Muslim, 19,994 were Orthodox, 54,033 were from another stated religion, 175,252 had no religion and 66,752 did not state their religion in the Census form. Figures from the Central Statistics Office website: www.cso.ie (date accessed: 23rd May 2008). 6 K. Holland, “Turban ban forces Garda into rethink of Catholic symbols” The Irish Times (27th August, 2007). 7 Ibid.

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“[t]he publication or utterance of blasphemous[8], seditious, or indecent matter is an offence which shall be punishable in accordance with law.” The Defamation Act 1961, s. 13(1) makes it an offence to publish or print a “blasphemous libel” which is punishable by a fine of €635 or up to two years in prison.

In the only case in which blasphemy was discussed before the Irish courts since 18559: Corway v. Independent Newspapers (Ireland) Ltd.10 concerning a cartoon which the applicant contended constituted a blasphemy against the Catholic religion11. the Supreme Court , in the absence of a statutory definition for ‘blasphemy’, refused leave to prosecute the offence.

Barrington J. in Corway indicated that the Common law offence of blasphemy, “related as it was to an established church and an established religion” could not have survived12 and confirmed that the Constitution did not “prefer one religion to another” 13.

In addition to the Constitutional provisions, the Ecclesiastical Courts Jurisdiction Act 1860, s. 2 provides that it is an offence to be guilty of riotous, violent or indecent behaviour in a chapel or churchyard or burial ground, or to molest, disturb, vex or trouble a preacher or clergyman celebrating any sacrament or divine service or rite. The Censorship of Films Act 1923, s. 7(2) provides that the Official Censor may decide that a film is unfit for general exhibition in public “by reason of its being indecent, obscene or blasphemous …”

The Family

As noted above, Articles 41 and 42, concerning the family and education are

traditionally seen as “marked by Catholic thought”14. Article 41 recognises the family as “the natural primary and fundamental unit

group of Society, and as a moral institution possessing inalienable and

8 Blasphemy is described in the Oxford Dictionary as “profane or sacrilegious talk about God or sacred things”. 9 N. Cox, “Sacrilege and Sensibility: the Value of Irish Blasphemy Law” (1997) 4(1) D.U.L.J. 87, at p. 88. 10 Corway v. Independent Newspapers (Ireland) Ltd. [1999] 4 I.R. 484. 11 In November, 1995, an article appeared in a newspaper concerning the influence of the Catholic Church in Ireland. The article was accompanied by a cartoon, which showed three government ministers rejecting a host and chalice being offered by a priest. Above the cartoon were the words “Hello, Progress - Bye-Bye Father?”. The plaintiff had sought leave to bring criminal prosecution against the publishers of a newspaper who had published a cartoon that he felt was blasphemous because of its portrayal of the Eucharist. 12 Ibid. at p. 501. 13 Citing Walsh J. in Quinn’s Supermarket v. Attorney General [1972] I.R. 1, at pp. 23, 24. 14 J.H. Whyte, Church and State in Modern Ireland 1923 – 1979 (Gill & MacMillan, 1980), pp. 51, 52. See also G. Hogan, “Law and Religion: Church-State Relations in Ireland from Independence to the Present Day” (1987) 35 A.J.C.L. 47, at p. 51.

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imprescriptible rights, antecedent and superior to all positive law.” It adds that “the State … guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.15 Article 41.3.1º states that: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”. Until 1995, this Article incorporated a constitutional ban on divorce16. This was removed by referendum and replaced with a new provision providing for divorce in certain circumstances17.

The family which is protected by these articles is the family based on marriage18. This was held by the Supreme Court most recently in N. v. Health Service Executive19. There is no indication that the marriage must take place in a religious context in order to draw the constitutional protections of the family, merely that the marriage be recognised in the State.

The Civil Registration Act 2004 provides that a marriage can only be carried out by a “registered solemniser”, who must be registered with an t-Ard Chláraitheoir [the Registrar]20. The Act allows for group applications from religious orders21and others to be registered as solemnisers also, provided that these are fit and proper persons22.For a valid marriage a couple must declare in the presence of each other, a “registered solemniser” and two witnesses that they do not know of any lawful impediment to the marriage and that “they accept each other as husband and wife” 23. Religious marriage will therefore be valid provided the correct formalities are observed.

15 Article 41.1. 16 The Article stated that: “No law shall be enacted providing for a dissolution of marriage”. 17 Article 41.3.2º provides that: A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that

i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the five years, ii. there is no reasonable prospect of a reconciliation between the spouses, iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and iv. any further conditions prescribed by law are complied with.

18 This has been so held by the Supreme Court in State (Nicholau) v. An Bord Uchtála [1966] I.R. 567; G. v. An Bord Uchtála [1980] I.R. 32; W. O’R.. v. E.H. (Guardianship) [1996] 2 I.R. 248. 19 N. v Health Service Executive [2006] 4 I.R. 374. 20 Civil Registration Act 2004, s. 53. 21 Civil Registration Act 2004, s. 54. 22 Civil Registration Act 2004, s. 53. 23 Civil Registration Act 2004, s. 51(4).

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The rights of parents to bring up children in accordance with own moral and religious beliefs

Article 42.5 provides that the State shall intervene in the relationship between

parents and children only in “exceptional circumstances”. This has been held to be “broad enough in its terms to cover the range of parental duties and not merely relating to those of education.”24

In relation to medical treatment of children that interferes with parents’ religious or moral codes,the general rule is that the Court will only allow the parents’ decision to be overruled where this would put the life the child in danger. In North Western Health Board v. H.W.25 a majority of the Supreme Court upheld a decision of the parents on religious grounds to refuse a test for the child. The Health Board in this case sought a Court order to force parents to allow the “PKU” test26 for their son. The parents had refused on the basis that it was their “strong religious belief, that nobody is allowed to injure anybody else.”27

Denham J. stated that “if the child’s life is in immediate danger then there is a heavy weight to be put on the child’s personal rights superseding family and parental considerations.”28 In assessing what the welfare of the child would be, Denham J. stated that this concept included “religious, moral, intellectual, physical and social welfare”29.

Murray J. also upheld the parents’ decision. However, he noted that the test which the Health Board was trying to enforce had not been made compulsory by the legislature30. This could indicate that a somewhat different result might have been given had the test been seen as compulsory in the interests of the common good.

The Adoption Act 1974 provides an adoption order cannot be made where the applicants for adoption and the child and his parents or natural mother (if the child is illegitimate) are not all of the same religion, unless the person or people whose consent is required for the making of the order knows of the religion (if any) of the applicants when giving consent.

24 North Western Health Board v. H.W. [2001] 3 I.R. 622, at p. 756. 25 Ibid. 26 A medical test for the presence of four metabolic conditions and one endocrine condition in children. 27 Ibid. at p. 628. 28 Ibid. at pp. 722, 723. 29 Ibid. at p. 726. 30 Ibid. at p. 741.

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Right to observe and celebrate church holidays

The Organisation of Working Time Act 1997 sets out nine public holidays in Ireland. These include four church holidays which are all Christian holidays: Christmas Day, St. Stephen’s Day, St. Patrick’s Day and Easter Monday. Under the Act, an employer may substitute the nearest church holiday for a public holiday in respect of any employee.

Freedom of religion under special circumstances

The Health Act 1970, s. 39 states that “A health board shall make arrangements with the appropriate authorities for the performance of religious services in each hospital, sanatorium and home maintained by it….any payment made shall be subject to the approval of the Minister”.31”32. All prisons and places of detention have either full time or part-time Roman Catholic Chaplains. Chaplains from other churches, such as the Church of Ireland and Presbyterian Church attend the prisons on either a part time or visiting basis as necessary. Muslim prisoners’ needs are met be local Muslim religious leaders. The Irish Defence Forces also have a chaplaincy service. Chaplains are appointed to a Military Installation by their Bishop or Religious Superior after consultation with the Head Chaplain and with the approval of the Minister for Defence33. There are currently fifteen chaplains serving in the Defence forces.

Data Protection and Data on religious demography

Data on religious demography is available at the website of the central statistics

office which contains the result of previous census held.


There is no official State religion in Ireland. Article 44.2.2º states that: “The State guarantees not to endow any religion.” Article 44.2.3º states that: “The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.” In Campaign to Separate Church and State v. Minister for Education34 Keane J. stated that: “While there is no express provision in the Constitution prohibiting the establishment … of a church by law, it

31 Health Act 1970, s. 39(2). 32 Irish Prison Service, “Care and Rehabilitation” <http://www.irishprisons.ie/care_and_rehabilitation-chaplaincy.htm>. 33 For more details of this service see: www.militarychaplaincy.ie (date accessed: 23rd May, 2008). 34 Campaign to Separate Church and State v. Minister for Education [1998] 3 I.R. 321.

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is obvious that any such law would be impossible to reconcile with the prohibition of religious discrimination in Article 44.2.3º.”35

Article 44.2.5º states that: “Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.” This guarantees the freedom of religious institutions from State interference in relation to religious matters.

Property rights of religious institutions are specifically guaranteed by Article 44.2.6º: “The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”

A definition of religion?

There is no precise definition as to what constitutes a ‘religion’ under the Irish

Constitution or in statute law. Prior to 1973, the Constitution specifically recognised a number of religions: the

Roman Catholic Church36, the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland and the “Jewish congregations and the other religious congregations existing in Ireland at the date of the coming into operation of [the] Constitution.”37

The Roman Catholic Church was given a “special position” as “the guardian of the Faith possessed by the great majority of the citizens”38.

However, the Irish Courts have consistently drawn a pluralistic view from the text of the Constitution and even the ‘special position’ of the Roman Catholic Church prior to 1973 did not translate into any preferential treatment for that Church39. In McGee v. Attorney General 40, Walsh J. stated that the Constitution “[acknowledged] the fact that while we are a religious people we also live in a pluralist society from the religious point of view.” He added that

35 Ibid. at p. 361. 36 Referred to in the text as the “Holy Catholic Apostolic and Roman Church”. Former Article 44.1.2º. 37 Formerly Article 44.1.3º. 38 Originally Article 44.1.2º. 39 In Campaign to Separate Church and State v. Minister for Education Barrington J. remarked that the reference to the ‘special position’ of the Roman Catholic Church “was merely a recognition of a fact and implied no privileged position in law”. [1998] 3 I.R. 321, at p. 355. In Ó Beoláin v. Fahy [2001] 2 I.R. 279, at p. 356 Ó Beoláin v. Fahy [2001] 2 I.R. 279, at p. 356 Geoghegan J. remarked obiter that “the special position … was not considered by constitutional lawyers to have any legal implications.” 40 [1974] I.R. 284.

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“the guarantees of religious freedom and freedom of conscience were not confined to the different denominations of the Christian religion but extended to other religious denominations: see s. 2 of Article 44 which guarantees freedom of conscience and the free profession and practice of religion to every citizen, whether of the Christian religion or not.”

In a decision of the Equality Tribunal (which would not, in any way, be binding

on a court), the Equality Officer doubted that humanism could constitute a religion for the purposes of the Equal Status Act 2000.

In the Employment Equality Act 1998 and the Equal Status Act 2000 religious belief is defined as including “religious backgrounds or outlook”41. In Re Article 26 and the Employment Equality Bill 199642, the Supreme Court held that: “The term ‘religious denomination’, was therefore intended to be a generic term wide enough to cover the various churches, religious societies or religious congregations under whatever name they wished to describe themselves”43. In that case, the Supreme Court indicated that “the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is”44.

Principle of equality of religion

The Constitution guarantees that “all citizens shall, as human persons, be held

equal before the law” which “shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”45. In the context of religious freedom, the Constitution specifically guarantees that: “The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”46 As noted above, Article 44.2.2º provides that the State shall not endow any religion.

The seminal case on the point is Quinn’s Supermarket v. Attorney General47. In this Walsh J., in the Supreme Court, stated that “the constitutional provision [Article 44.2.3º] should be construed as meaning that the State shall not make any ‘distinction’ on the ground of religious profession, belief or status”48. This meant that the Ministerial Order challenged by the plaintiff in the case, which

41 Employment Equality Act 1998, s. 2(1); Equal Status Act 2000, s. 2(1). 42 Re Article 26 and the Employment Equality Bill 1996 [1997] 2 I.R. 321, at p. 354. 43 Ibid. at p. 354. 44 Ibid. at p. 359. 45 Article 40.1. 46 Article 44.2.3º. 47 [1972] I.R. 1 48 At p. 16.

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provided for an alteration of commercial trading hours for Jewish kosher shops, was prima facie discriminatory and unconstitutional49. However, the Court looked beyond this to the protection of free profession and practice of religion in Article 44.2.1º. “The primary purpose of the guarantee against discrimination is to ensure the

freedom of practice of religion.”50 Therefore the Ministerial order allowing the discriminatory position was allowed to stand. In Mulloy v. Minister for Education a legislative provision which prevented teaching service worked abroad only for members of religious orders was held to be an unconstitutional discrimination under Article 44.3.2º51. The principle of anti-discrimination is only binding upon the State. Thus, in McGrath and Ó Ruairc v. Trustees of Maynooth College52 it was held that the principle of non-discrimination did not apply to private bodies, even where these were in receipt of State funding in another capacity. The body in question, as well as being seminary for the training of Catholic priests was also a college of a university and received State funding as such. The principle that discrimination might be allowable in order to ensure the free practice and profession of religion has been somewhat contentious in the area of employment law and has also caused controversy, in recent times with regard to school enrolment policies.

Employment

Under the Unfair Dismissals Acts 1977 - 1993 an employee shall be deemed to be unfairly dismissed if it results wholly or mainly from the religious opinions of the employee53. “In Merriman v. St. James’ Hospital54 an employee who had been dismissed for refusing to carry religious objects to the bedside of a dying patient for a religious ceremony was reinstated by the Court to carry out her duties in accordance with her contract, including every necessary assistance to patients in relation to religious services provided for them but with the stipulation that she did not have to participate in any religious ceremony or rite.55

49 Ibid. 50 Ibid at pp. 24, 25. 51 Mulloy v. Minister for Education [1975] 1 I.R. 88. 52 [1979] I.L.R.M. 166. 53 Unfair Dismissals Acts 1977 - 1993, s. 6(2)(b). 54 (Unreported, Circuit Court, Clarke J., 24th November, 1986). 55 Ibid.

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In Flynn v. Power56, the High Court upheld a convent school’s sacking of an unmarried teacher because that teacher was living with a married man and had become pregnant by him. Such conduct amounted to a rejection of the norms of behaviour and the ideals which the school was endeavouring to instil.

The Employment Equality Act 1998 provides generally that there should be no discrimination on several grounds including that referred to in the Act as “the religion ground.

The Act provides an exception for certain educational or training bodies specified by the relevant Minister57 from discriminating on the religion ground in respect of admitting persons to vocational training courses58. This is to ensure “the availability of nurses to hospitals and teachers to primary schools” to maintain their religious ethos.

The Act also provides that a “religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values” shall not discriminate against a person if “it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution” of “it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.”59 In Re Article 26 and the Employment Equality Bill 199660. Hamilton C.J., giving the judgment of the Supreme Court, stated that

“… it is constitutionally permissible to make distinctions or discriminations

on grounds of religious profession belief or status insofar—but only insofar—as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution”.61

In Campaign to Separate Church and State v. Minister for Education62 the

Supreme Court upheld the payment by the State of school chaplains in certain circumstances on the basis that the principle of non-endowment of religion in the Constitution could be read as subject to the State’s duty to assist parents with the religious and moral formation of their children. In Greally v. Minister for Education (No. 2) Geoghegan J. remarked obiter that an argument could be made

56 [1985] I.R. 648. 57 Employment Equality Act 1998, s. 12(5). 58 Employment Equality Act 1998, s. 12(4) 59 Employment Equality Act 1998, s. 37(1). 60 [1997] 2 I.R. 321, at p. 354. 61 At p. 358. 62 [1998] 3 I.R. 321.

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the replacement of a clerical teacher with a clerical teacher might constitute discrimination but would not do so when read in light of the right of parents to have their children educated in denominational schools63.

The Employment Equality Act 1998 as amended by the Equality Act 2004 allows discrimination based on a characteristic related to one of the grounds set out in the Act (including the religious ground) only where “by reason of the particular occupational activities concerned or of the context in which they are carried out” the “the characteristic constitutes a genuine and determining occupational requirement, and “the objective is legitimate and the requirement proportionate.”64

In a 2004 decision of the Equality Tribunal65, Sheeran v. The Office of Public Works66, the Tribunal found that the plaintiff (a humanist) had failed to establish discrimination by the respondent in its ringing of the Angelus bells in a State-owned church building as this constituted a “a minimal intervention, if any, into his own lack of religious belief”. The plaintiff was entitled to protection under the Equal Status Act 2000 as a person having no religious belief.

The Equality Act 2004 is responsible for the transposition of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation67. Basing her reasoning on the European Court of Justice decision on Council Directive EC 76/207/EEC68 in Commission v. France, Marguerite Bolger suggests that, in justifying the use of an exception to the principle of non-discrimination:

it would be necessary to show that a person’s religion is a determining factor

in their actual ability to discharge the duties of their job rather than simply showing the perception that their employer or user of the employer’s services may have of their of their religion or beliefs.69

.”70 In early 2007, the European Commission issued a reasoned opinion that

Ireland had inadequately transposed the Directive by allowing too wide a definition of ‘religious ethos’. However, the Commission was satisfied with Ireland’s

63 Greally v. Minister for Education (No. 2) [1999] 1 I.R. 1, at p. 9. 64 Employment Equality Act 1998, s. 37(2) as am. by Equality Act 2004, s. 25. 65 The Equality Tribunal was established by the Employment Equality Act 1998. Its function is to hear complaints relating to equality legislation, including complaints on the religious ground. 66 DEC-S2004-015. 67 O.J. L303/16 2.12.2000. 68 O.J. L39/40 14.2.1976. 69 M. Bolger, “Discrimination on the grounds of religion: theory and practice” (2004) 1(2) I.E.L.J. 48. 70 G. Whyte, “Protecting Religious Ethos in Employment Law: A Clash of Cultures” (2005) 12(1) D.U.L.J. 169.

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response to it on the matter and decided not to refer the issue to the European Court of Justice71.

School enrolment policies

The Equal Status Act 2000 prohibits discrimination in the goods and services on seven grounds including a “religion ground”72. However, s. 7(3)(c) of the Act specifically provides that a primary or post-primary school whose objective is “to provide education in an environment which promotes certain religious values” may admit persons of a particular religious denomination in preference to others or refuse to admit a person who is not of that denomination admission, provided that “the refusal is essential to maintain the ethos of the school”. Certain schools were preferring children of a particular faith when there was more demand for places than they could accommodate73.

Education

The Irish Constitution “acknowledges” the central place of the family as “the primary and natural educator” of the child and to protects the rights of parents to “to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children”74 stating also that “parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.”75 Article 42.3.1° states that: “The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.” Although the State must ensure that children receive “a certain minimum education, moral, intellectual and social.”76 Article 44.2.4° provides that “legislation providing State aid for schools shall not … be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at the school.”

Article 42.4 requires that the State “provide for free primary education” and “endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other

71 J. Lawrence, “Case against Ireland over religious bias is dropped” The Irish Times (7th May, 2008). 72 Equal Status Act 2000, s. 3(2)(e). 73 G. Fuller, “Is your child Catholic enough to get a place at school?” The Irish Times (1st May, 2007). F. Gartland, “Happy pupils on first day of class at new school set up speedily” The Irish Times (4th September, 2007). 74 Article 42.1 75 Article 42.2 76 Article 42.3.2°.

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educational facilities or institutions”. “with due regard … for the rights of parents, especially in the matter of religious and moral formation.”

Children between the ages of approx. four and twelve years are said to be in primary education. For historical reasons, the State carries out the guarantee of free primary education through providing funding for denominational primary schools. As of 2005/2006, 98.5 per cent of primary schools were denominational in nature and 92 per cent of these were Roman Catholic schools

Children between the ages of approx. 12 and 18 years attend post-primary schools. There are three types of post primary schools: 1) secondary schools (public or private); 2) vocational schools; and 3) comprehensive or community schools. Secondary schools are privately owned and managed. In the majority of cases, the trustees of these schools are religious77. Vocational schools managed by Vocational Education Committees and Community schools “and comprehensive schools managed by boards of varying compositions78 each evolved from a different historical context” and have different ownership and management structures. All are“largely State funded and follow the same State curriculum and take the same State public examinations”79. Teachers are recruited by the board of the school but are considered ‘public servants’.

In Campaign to Separate Church and State v. Minister for Education Barrington J., stated:

A religious denomination is not obliged to change the general atmosphere of

its school merely to accommodate a child of a different religious persuasion who wishes to attend that school. 80

As the constitutional guarantee is framed negatively, there is no corresponding

obligation on the school or the State to ensure that alternative religious instruction is provided.

Religion teachers are paid by the State although the basis of this is not set down in legislation. Rather, funding is provided through State grants and for community and vocational schools, through the terms of the trust establishing the school.

There is no provision for common prayer in Irish schools. At present there are no legal provisions relating to the display of a crucifix or the wearing of religious symbols.Between 1991 and 2002 membership of the Orthodox Church increased by 2800%, the number of Muslims increased by 394% and Buddhists by 294%81. 77 Department of Education and Science, “A Brief Description of the Irish Law Education System” (Stationery Office, 2004), p. 13. 78 Ibid. 79 Ibid. p. 6. 80 Campaign to Separate Church and State v. Minister for Education [1998] 3 I.R. 321, at p. 357. 81 D. Ellis and S. Gogan, Executive Summary: Discrimination on the grounds of religion and belief – Ireland (Community Action Programme to Combat Discrimination, 2004).

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Following recent debate concerning the wearing of the Muslim hijab in

secondary schools82. The Department of Education will consider issuing guidelines to schools on the matter as part of its intercultural education strategy later in 200883.

Such a ban could be unconstitutional. The Education Act 1998, s. 15(2)(b) makes it a function of the board of

management of a school to

“… uphold … the characteristic spirit of the school as determined by the cultural, educational, moral, religious, social, linguistic and spiritual values and traditions which inform and are characteristic of the objectives and conduct of the school …”

But given the “homogenous nature of the Irish education system,and the

absence of viable alternatives”, pupils should remain free to manifest their religious beliefs at school84.

Private schools

In O’Shiel v. Minister for Education85 the High Court held that the State was not required to fund private education. Nevertheless, the decision of the Court indicates that the State was entitled to provide funding when the school fulfilled the criteria required by the State before it would provide funding.


Following from the commitment in the Draft Constitutional Treaty for the EU

(Article 1-52), the Irish Government initiated a process of structured dialogue between the State and members of various churches, faith communities and non confessional bodies. The Department of the Taoiseach [Prime Minister] the process contacted 22 bodies, all of whom responded positively in relation to the project and since February 2007,discussions relating to education and health, charities legislation and marriage registration have taken place.

82 H. McGee, “Quinn supports integration after U-turn on multiculturalism” The Irish Times (3rd June, 2008), p. 7. 83 R. Mac Cormaic, “O’Keeffe says review will look at hijab policy” The Irish Times (20th March, 2008), p. 3. 84 C. O’Mahony, Educational Rights in Irish Law (Thomson Round Hall, 2006), p. 80. 85 O’Shiel v. Minister for Education [1999] 2 I.L.R.M. 241.

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FREEDOM OF RELIGION IN THE DECISIONS OF THE CONSTITUTIONAL COURT OF LATVIA

Anita KOVAĻEVSKA

Constitutional Court of the Republic of Latvia

Fundamental rights in Latvia are guaranteed by the Constitution of the Republic of Latvia – Satversme. Article 99 of the Satversme provides for freedom of religion and defines the relationships between the State and the church in Latvia: “Everyone has the right to freedom of thought, conscience and religion. The church shall be separate from the State.”

One of the main institutions with task to ensure that the Constitution of the Republic of Latvia is obeyed is Constitutional Court. Article 85 of the Constitution of the Republic of Latvia states: “In Latvia, there shall be a Constitutional Court, which, within its jurisdiction as provided for by law, shall review cases concerning the compliance of laws with the Constitution, as well as other matters regarding which jurisdiction is conferred upon it by law. The Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid. The Saeima shall confirm the appointment of judges to the Constitutional Court for the term provided for by law, by secret ballot with a majority of the votes of not less than fifty-one members of the Saeima.”

The Constitutional Court of the Republic of Latvia was established in 1996. On 5 June 1996 the Constitutional Court Law was adopted. In the same year six of seven judges were confirmed by the Parliament and the Constitutional Court started its work.

The Constitutional Court of the Republic of Latvia can decide only on compliance of statutes with the legal norms (acts) of higher legal force and compliance of other acts (with an exception of administrative acts) by the Saeima, the Cabinet of Ministers, the President, the Chairperson of the Saeima and the Prime Minister with the law. Complaint to the Constitutional Court cannot be directed against a measure of an administrative body or against the verdict of a court.

At the beginning there was no possibility to submit a constitutional complaint. Acoording to the Constitutional Court Law the State President, the Saeima (Parliament), not less than twenty members of the Saeima, the Cabinet of Ministers, the Procurator General, the Council of the State Control, the Latvian National Human Rights Office and the Council of a Municipality could submit an application. Amendments of the 30 November 2000 to the Constitutional Court Law noticeably enlarged the range of persons, who have the right to apply to the Constitutional Court. At the present also courts of general jurisdiction, when reviewing civil, criminal or administrative case, a judge of the Land Book Registry when entering real estate – or thus confirming property rights on it – in the Land

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Book as well as any natural or legal person, whose fundamental rights, set out in the Constitution, have been violated may submit a complaint to the Constitutional Court. Still, the constitutional complaint can be directed only against the statutes.

The Constitutional Court of the Republic of Latvia has received only few complaints concerning the violation of the freedom of religion. There have been several complaints about the norm of the Law on Religious Organisations. This norm states that the religion can be taught in the state school if the parents of at least 10 pupils apply for it. According to this norm only certain Christian denominations can teach in the state schools and those lessons are financed from the State budget. In one complaint religious organisation complained about the problems with the restitution of real estate. One person complained about the norm which prohibited changing the name or surname if the person is convicted. Complainant stated that he has become a Muslim and he needs to change the name and surname because of it.

Almost all of those constitutional complaints were dismissed. The Constitutional Court has refused to initiate a case because those constitutional complaints did comply with the requirements of the Constitutional Court Law. In some cases the ordinary legal remedies were not exhausted. In other cases the Constitutional Court recognized that the complaints are manifestly ill-founded.

The Constitutional court initiated one case concerning the norm of the Law on Religious Organisations in 2002. As mentioned above this norm states that the religion can be taught in the state school by the certain Christian denominations if the parents of at least 10 pupils apply for it. Religious organisation complained that according to this norm it is not allowed to teach their religion in the state schools. The Constitutional court recognized that not only a natural person, but also a legal person has a right to freedom of religion, that the freedom of religion includes the right to teach the religion and initiated a case.

When deciding on the merits of that case the Constitutional Court adopted the decision to close the proceeding. In its decision from 11 November 2002 the Constitutional Court stated that the contested norm entitles the pupils and their parents to have the religion taught in the school. The Constitutional Court concluded that the contested norm gives rise only to the rights of the pupils and their parent and does not give rise to any right of religious organisation. The Constitutional Court stated that because of it religious organisation cannot have an arguable claim that its fundamental rights have been violated by the contested norm.

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Ramutė RUŠKYTĖ, Justice of the Constitutional Court of the Republic of Lithuania


Introduction

In Lithuania, the freedom of religion and conscience has old historical

traditions. Article 1 of the Constitution of the Polish-Lithuanian Commonwealth, which was proclaimed on 3 May 1791, the sacred faith of Roman Catholics with all its rights was indicated as the predominant religion of the Nation, however, it was established that the freedom of all rites and religions according to the laws of lands shall be guaranteed.1 The 1922 Constitution of the State of Lithuania established that “all citizens of Lithuania, men and women alike, shall be equal before the laws. No special privileges may be granted, or rights diminished because of one’s origin, faith, or nationality.”

The approach to the freedom of religion and conscience and limits thereof experienced only minor changes in Lithuania, except the occupation periods. In today’s Lithuania the freedom of religion and conscience is regarded as a condition of a democratic state. The Constitutional Court has investigated and interpreted the compliance of the provisions of laws, which in various aspects regulated the freedom of religion and conscience, with the Constitution (in 1994, 1995, 2000, and 2007).

According to the data of the 2001 Lithuanian general census of population and households, 79 percent of the population regarded themselves as Roman Catholics, 4.1 percent—as Christian Orthodox, 0.8 percent—as Old Believers, 0.6 percent—as Evangelical Lutherans, 0.2 percent—as Evangelical Reformed, 0.1 percent—as Jehovah’s Witnesses, 0.1 percent—as Sunni Muslims. The percentage of the population which see themselves as part of other religious communities is even smaller (0.04 percent—as Judaists, 0.01 percent—as Greek-rite Catholics (Uniates), 0.01 percent—as Karaites), while 5.4 percent of the population did not indicate to which religious community they would attribute themselves. 0.39 percent of the population of Lithuania attributed themselves to religious communities that are not traditional in Lithuania.

1 It is noteworthy that the following formulas were employed in the First Lithuanian Statute (Code) (1529): “wishing to grant the Christian right”, “both of Latin and Greek faith” (Introduction to the Statute), “in court the order of Christian law shall be publicly adhered”, “under the custom of Christian law” (Article 1 of the First Chapter), “Christians, either of Latin or Greek faith” (Article 5 of the Eighth Chapter) shows application of common law to all Christians.

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The role of the Catholic Church has been increasing during the last decade: it was expanding its activities, especially those in social and cultural areas, it has acquired a separate radio channel, it more frequently states its position regarding various events in society and various conceptions (alcohol advertising, family, change of sex, etc.). At this time the ecumenical movement was also expanding.

It is noteworthy that in 2000 Lithuania signed three treaties with the Holy See, which were ratified by the Seimas (Lithuanian Parliament).2 While implementing these treaties, a number of valid legal acts were amended and new legal acts were adopted. At present other religious organisations are initiating negotiations with state institutions on agreements, among other things, also with the State of Lithuania.

Taking account of the fact that the constitutional doctrine on religious issues is not broad, in the course of answering corresponding questions one also provides the essential provisions of the legal acts that are valid at present, which regulate the relations of freedom of religion, freedom of conscience, including the provisions of the treaties between the State of Lithuania and the Holy See; also, in respective cases an actual situation is described and generalisations are presented.

The text below employs the notions “church”, “religious organisation” in the manner as they are used in the Constitution of Lithuania, while in other cases the notions “religious community” and “religious association” (i.e. a union of religious communities) and “religious centre” (institutions of authority of religious associations) are used, since such notions are employed in laws.

It is possible to find all Constitutional Court rulings specified below at the internet website www.lrkt.lt both in Lithuanian and English, while the indicated laws and Government resolutions can be found at the internet website www.lrs.lt in Lithuanian (and some of them also in English). I. Essence and content of freedom of religion (faith) and freedom

of conscience

1. Article 26 of the Constitution of the Republic of Lithuania (1992) provides:

“Freedom of thought, conscience and religion shall not be restricted. Each human being shall have the right to freely choose any religion or belief

and, either alone or with others, in private or in public, to profess his religion, to perform religious practices, to practice and teach his belief.

No one may compel another person or be compelled to choose or profess any religion or belief.

2 The first concordat between the Holy See and the Republic of Lithuania was signed in 1927.

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Freedom of a human being to profess and spread his religion or belief may not be limited otherwise than by law and only when this is necessary to guarantee the security of society, the public order, the health and morals of the people as well as other basic rights and freedoms of the person.

Parents and guardians shall, without restrictions, take care of the religious and moral education of their children and wards according to their own convictions.”

Paragraph 1 of this article consolidates one of the fundamental human rights—

freedom of religion and conscience, which is not restricted. In its ruling of 13 June 2000, the Constitutional Court held that inter alia the

freedom of thought, conscience and religion is inseparable from the other human rights and freedoms entrenched in the Constitution: the right to have one’s own convictions and freely express them, freedom to seek, obtain and disseminate information and ideas (Paragraphs 1 and 2 of Article 25). The contents of convictions is a private matter of the individual. The state must be neutral in matters of convictions, it does not have any right to establish a mandatory system of views. The freedom to have convictions may not be restricted in any way.

In its conclusion of 24 January 1995,3 the Constitutional Court noted that as long as an individual only professes religion or faith, it is a sphere of his inviolable private life. This state of the individual cannot be limited in any way. Thus, a conclusion is to be drawn that the Constitutional Court regards freedom of religion as an absolute freedom of a human being.

Freedom of conscience includes not only positive enjoyment of the right—to freely choose or profess any religion or belief (Paragraph 2 of Article 26 of the Constitution), but also a negative right—no one may compel another person or be compelled to choose or profess any religion or belief (Paragraph 3 of Article 26 of the Constitution); no one may be compelled to belong to any society, political party, or association (Paragraph 2 of Article 35 of the Constitution).

The Constitutional Court has held that the state has a duty to secure that no one would encroach upon spiritual matters of an individual—that no one would restrict his innate right to choose a religion acceptable to him or not to choose any religion, to change the chosen religion or to abandon it; the freedom of a human being not to reveal his view as regards matters of faith or absence of faith, is also undisputable. The state may not establish any mandatory requirements for an individual to indicate his faith or his views to matters of faith.

In Lithuania there are legal acts establishing that the faith of an individual (e.g. during the population census) may be indicated, however, it is not mandatory for the individual.

3 The Constitutional Court conclusion of 24 January 1995 wherein the compliance of corresponding articles of the Convention for the Protection of Human Rights and Fundamental Freedoms with the Constitution of the Republic of Lithuania was investigated.

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While construing the provision of Paragraph 3 of Article 26 of the Constitution, the Constitutional Court noted that no one may compel another person or be compelled to choose or profess any religion or belief means that no religious or materialistic ideas may be forced upon an individual against his will. Alongside, the Constitutional Court noted that the right of parents and guardians to take care of the religious education of their children and wards according to their own convictions as guaranteed in Paragraph 5 of Article 26 of the Constitution is not to be held as such obtrusion.

Freedom of conscience manifests itself in various aspects, as, for instance, the right to refuse to serve in the military forces due to religious beliefs, the right to refuse to perform abortions.

Article 139 of the Constitution of the Republic of Lithuania provides that citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law. Under the Law on Religious Communities and Associations, every individual may on the basis of his religious convictions choose an alternative (labour) service in lieu of the obligatory military service. The implementation of this provision is provided for in the Law on National Conscription whereby citizens of the Republic of Lithuania shall be exempted from initial mandatory military service after they declare in writing that due to their religious or pacifistic beliefs they may not serve under arms, and are assigned to fulfil alternative national defence service. Military conscripts who wish to complete alternative national defence service must apply in writing with a reasonably grounded request to a corresponding commission or regional military conscription centre. A special commission consisting of representatives of public organisations, religious communities, educational institutions shall consider requests of military conscripts concerning completion of alternative service and adopt a decision thereon.

In Lithuania, until now abortion procedures have been regulated by the order of the minister of health, which does not provide for the right of the doctor to refuse to perform abortion because of his religious beliefs. At present, two draft laws have been submitted to the Parliament. One draft is liberal—the right to perform abortions is not restricted, while in another draft abortions are allowed only under special circumstances. As regards the right to refuse to perform an abortion, see Item II.3.

Freedom of conscience is also related with taking an oath. Article 5 of the 1992 Republic of Lithuania Law on the Procedure for Entry into Force of the Constitution provides for the text of the oath of a Member of the Seimas, which ends “So help me God”. Paragraph 2 of the same article provides that the oath may also be taken omitting the last sentence. Before someone begins to hold a certain office, he is required to take an oath in which he pleads for God’s help, and such an oath can violate convictions of non-believers. Taking account of this fact, at the end of 2005 the provisions of the Law on Prosecutor’s Office and the Law on Courts, which had regulated the oath and which had been valid for more than 10

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years, were amended. Under the previous regulation established in these laws, the last words of the oath used to be “So help me God. The oath may also be taken omitting the last sentence.” Thus, if the individual did not pronounce the words “So help me God”, he was supposed to cross them out when he was signing the text of the oath. At present, two texts of the oath are consolidated in the said laws: one of them ends with the words “So help me God”, while the other one does not contain these words. The judge or the prosecutor who are taking an oath have the right to choose one text from of the oath. An analogous amendment of the regulation was made also in the Law on the Constitutional Court, the Law on the President of the Republic (2003), the Law on the Government (2004) and in other laws by establishing two texts of the oath.

Also, the regulation established in the Law on Operational Activities, under which employees of operational activities are prohibited from making an agreement on secret co-operation with the persons who must maintain the seal of confession. Such prohibition was entrenched in the law in 2002 following a proposal by the President of the Republic. Even broader protection is provided for in the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See. Under this treaty the Republic of Lithuania guarantees that in no way will the seal of confession be violated even when a priest is summoned as a witness or when he participates in court proceedings. The Code of Criminal Procedure (Article 80) provides that the clergy may not be questioned as witnesses as regards the things that they were told during the confession.

2. As mentioned, according to the doctrine of the Constitutional Court, the

freedom of faith is absolute, however, the freedom of religious cult (sacred practices, the entirety of actions which are an outward expression of the contents of religious doctrine) is not absolute.

The Constitutional Court has held that the right to freely express convictions is inseparable from the freedom to have such convictions. The freedom of expression of convictions is a possibility to express thoughts, views, and convictions without hindrance verbally, in writing, in signs, and by applying other ways and means of spreading information. The freedom of thought, conscience and religion becomes a matter of legal regulation only to the extent that an individual expresses his thoughts or religion in his actions.

Religious cult as expression of freedom of faith is inter alia consolidated in Paragraph 2 of Article 26 of the Constitution: each human being shall have the right to freely choose any religion or belief and, either alone or with others, in private or in public, to profess his religion, to perform religious practices, to practice and teach his belief. The collective expression of religious practice also stems from Paragraph 1 of Article 36 of the Constitution which contains prohibition to hinder citizens from assembling unarmed in peaceful meetings.

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Alongside, it needs to be mentioned that the Constitution (Article 29) prohibits to discriminate an individual on the basis of his belief, convictions, or views.4

Under Paragraph 3 of Article 43 of the Constitution, churches and religious organisations shall be free to proclaim their teaching, perform their practices, and have houses of prayer, charity establishments, and schools for the training of the clergy.

On the other hand, the Constitutional Court has held that the state has a duty to assure that a believer or a non-believer (either alone or with others) make use of the freedom of thought, faith and conscience so that the rights and freedoms of other persons would not be violated: under Article 28 of the Constitution, while implementing his rights and freedoms, the human being must observe the Constitution and the laws of the Republic of Lithuania and must not restrict the rights and freedoms of other people, while it is entrenched in Article 27 of the Constitution that a human being’s convictions, practiced religion or belief may not serve as justification for a crime or for failure to execute laws.

Freedom to express convictions may not be limited otherwise than by law, if this is necessary to protect the values specified in Paragraph 3 of Article 25 of the Constitution: the health, honour and dignity, private life, and morals of a human being, or to defend the constitutional order; in addition, it can be temporarily limited after imposition of martial law or a state of emergency (Article 145 of the Constitution).

Under the Law on Religious Communities and Associations, the collective sacred practices are limited in a corresponding manner, since the law specifies the conditions of their expression. The same law indicates the places, where religious rites can be performed freely, as well as the establishments in which religious rites are performed upon coordination of the authorities of these establishments; in other public places religious rites may be performed if those rites are not in violation of public order, people’s health, morals or the rights and freedoms of other persons.

In the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See, the State of Lithuania recognises the freedom of the Catholic Church and its communities to freely perform rites in public.

Summing up, it is possible to state that in the doctrine of the Constitutional Court, as a human right, the right to freedom of conscience is composed of at least two components: the right not to be forced to act against one’s conscience, which is unlimited, and the right not to be restrained from acting according to one’s conscience, which, in order to protect the common good, may be limited under certain circumstances.

4 Paragraph 2 of Article 29 of the Constitution provides: “The rights of the human being may not be restricted, nor may he be granted any privileges on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views.”

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3. In Lithuania, the subject of freedom of religion and conscience is every human

being, since, as it has been mentioned, Article 26 of the Constitution provides that each human being shall have the right to freely choose any religion or belief; it is also established therein that parents and guardians shall, without restrictions, take care of the religious and moral education of their children and wards according to their own convictions, while Paragraph 1 of Article 40 of the Constitution establishes: “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall provide religious instruction.”

In Lithuania, the freedom of thought and conscience are recognised to individual persons only when they act together, after they have created corresponding legal persons—associations of natural persons—since that is required not only by the social nature of the human being, but also the nature of religion itself. Also, the churches and other religious organisations which are recognised by the state can be subjects of freedom of religion and conscience. Such a conclusion may be drawn from inter alia Article 43 of the Constitution.5

4. It is possible to understand the contents of religion (relation between God and

man) as a belief, which gives an explanation about God, the world and man (the doctrine), the ritual actions corresponding to this belief and implementing it (cult) and the organisation of believers (church). The church is one of the three elements, the supreme institutionalised form of the organisation of individuals professing a corresponding religion.

Under Paragraph 2 of Article 43 of the Constitution, the churches and religious organisations recognised by the state shall have the rights of a legal person.

Under the Law on Religious Communities and Associations, a religious community is comprised of a group of individuals seeking to implement the aims of the same religion. Religious associations are unions of church and uniform religious organisations namely, communities striving to implement the aims of the same religion. An association shall be comprised of no fewer than two religious communities which are subject to mutual leadership. Religious centres are superior institutions of authority of religious associations.

In other words, under the law, a group of people professing a concrete religion and practising a certain cult is regarded as a religious community. The law does not provide any concept of the church, however, it is equalled to a religious organisation.

It is also noteworthy that the public and the media also comprehend a Church as a cult building, a community of believers, and as the centre of a community of believers.

5 Paragraph 2 of Article 43 of the Constitution: “The churches and religious organisations recognised by the State shall have the rights of a legal person.”

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The autonomy of a church and religious organisation is, first of all, entrenched in Paragraph 3 of Article 43 of the Constitution: churches and religious organisations inter alia shall be free to proclaim their teaching, perform their practices, and have houses of prayer, charity establishments, and schools for the training of the clergy.

The Constitutional Court has noted that this provision is designed to guarantee the independence of churches and religious organisations, to protect them from interference by state and municipal institutions, their officials, other establishments and organisations into the activities of churches and religious organisations.

While interpreting the provision of Paragraph 4 of Article 43 of the Constitution whereby churches and religious organisations shall conduct their affairs freely according to their canons and statutes, and the provision of Paragraph 7 of Article 43 of the Constitution that there shall not be a state religion in Lithuania, the Constitutional Court noted that churches and religious organisation do not interfere with the activities of the state, its institutions and officials, while the state does not interfere with internal affairs of churches and religious organisations. The Constitutional Court drew a conclusion that the principle of separateness of the state and the church is established in the Constitution and this principle determines neutrality of the state in matters of world view and religion. This neutrality means disconnection of the purpose, functions and activities of the areas of the state and religion, those of the state and the churches and religious organisations. Secularity of the state also presupposes non-interference with the internal life of churches and religious organisations by the state.

It needs to be noted that the right of citizens to freely form associations is also guaranteed by Article 35 of the Constitution.6

Under Article 7 of the Law on Religious Communities and Associations, religious communities and associations shall not fulfil state functions, while the state shall not fulfil the functions of religious communities and associations. Religious communities and associations shall have the right to freely organise in accordance with their hierarchic and institutional structure, and manage their inner life according to its canons and statutes, as well as other norms.

Under the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See, the authorities of the Catholic Church have the right to freely appoint individuals to ecclesiastical offices according to the norms of Canon Law, while the appointment, transfer or dismissal of bishops and those who are equalled to them under Canon Law is within exclusive competence of the Holy See. However, before announcing about an appointment of a diocesan Bishop, the Holy See, in

6 Paragraphs 1 and 2 of Article 35 of the Constitution: “Citizens shall be guaranteed the right to freely form societies, political parties and associations, provided that the aims and activities thereof are not contrary to the Constitution and laws. No one may be compelled to belong to any society, political party, or association.”

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sign of honour, confidentially informs about it the President of the Republic of Lithuania. In this treaty it is also established that in Lithuania only citizens of the Republic of Lithuania may be appointed as bishops.

Taking account of the fact that, under the Constitution, churches and other religious organisations are legal persons (Paragraph 2 of Article 43 of the Constitution), they, as any other legal person, enjoy legal subjectivity, they may acquire and freely possess their property. Under the Law on Religious Communities and Associations, religious communities, associations and centres shall have the right of ownership to houses of prayer, residential houses and other buildings and edifices, production, social and charity objects as well as other types of property, required for the activities of religious communities and associations. Religious communities, associations and centres shall administer, use and sell their property in accordance with the laws of the Republic of Lithuania.

The Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See provides for the following rights of the Catholic Church: the right to build churches and other buildings designed for ecclesiastical purposes, to expand the existing ones and to rebuild them under procedure established in legal acts of the Republic of Lithuania; the right to found establishments for caritative and social activities; the right to provide religious services in hospitals, children’s care homes and other places of healthcare and social care, as well as in places of imprisonment; the Catholic Church is guaranteed the right to print, publish and disseminate books, newspapers, and magazines and to pursue other publishing activities.

In this treaty is also established that ecclesiastical legal persons have the right to acquire, possess, use and dispose of movable and immovable property under Canon Law and legal acts of the Republic of Lithuania. In this context, it is noteworthy that the Code of Canon Law of the Catholic Church (Can. 1254) provides that to pursue its proper purposes, the Catholic Church by innate right is able to acquire, retain, administer, and alienate temporal goods independently from civil power.7

Summing up, one is to hold that, in Lithuania, churches and religious organisations enjoy autonomy and they can: train and transfer their ministers, teach the believers according to the doctrine of a concrete church, render them religious assistance, adopt decisions on founding and abolishing ecclesiastical units, freely acquire and posses property, freely communicate with their authorities and with state institutions in this country and with religious communities and other individuals from other states.

7 Can. 1254. Code of Canon Law: Latin–English edition. Washington: Canon Law society of America, 1983.

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II. Protection of religious values as fundamental human rights in constitutional jurisdiction—selected examples

1.

As mentioned, under Paragraph 1 of Article 25 of the Constitution, “the human being shall have the right to have his own convictions and freely express them”, while under Paragraph 1 of Article 26 thereof, freedom of thought, conscience and religion shall not be restricted.

In its ruling of 13 June 2000, the Constitutional Court held that the freedom of convictions and their expression establishes ideological, cultural and political pluralism. This is an inborn human freedom. The state has a duty to ensure that no one encroach upon the spiritual matters of an individual, i.e., that no one impair his inborn right to choose a religion acceptable to him or not to choose any, to change his chosen religion or abandon it.

Freedom of convictions as an innate human right is to be interpreted together with Article 18 of the Constitution, which provides “Human rights and freedoms shall be innate” and with the protection of human dignity entrenched in Article 21 of the Constitution. In its ruling of 9 December 1998 the Constitutional Court noted that the inborn human rights are inborn opportunities of an individual which ensure his human dignity in the spheres of social life, while in its 29 December 2004 it held that the duty of the state to ensure the protection and defence of human dignity means also that state institutions and officials may not unreasonably restrict human rights and freedoms, treat the human being solely as a subject belonging to particular social, economic, professional or other category. Violations of rights and freedoms of an individual can also undermine dignity of the person. State institutions and officials have a duty to respect human dignity as a special value.

Summing up, it needs to be held that by means of laws and other measures, state authorities must efficiently protect the freedom of religion of all citizens and create favourable conditions to implement it.

2.

In its ruling of 13 June 2000, the Constitutional Court noted that the neutrality and secularity of the state may not serve as the grounds to discriminate the believers, to restrict their rights and freedoms.

The principle of equality of persons is entrenched in Article 29 of the Constitution. Paragraph 2 of this article inter alia provides: the rights of the human being may not be restricted, nor may he be granted any privileges on the ground of belief, convictions, or views.

In its ruling of 28 February 1996, the Constitutional Court pointed out that the constitutional principle of equality of persons of its own accord does not deny the fact that law may establish different legal regulation concerning certain categories of people who are in different situation. This should also be applied to

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legal persons, and not only to natural persons as the former are, as a rule, corporations of natural persons.

In its ruling of 13 June 2000, the Constitutional Court noted that it is permitted to establish different status for various churches and religious organisations in the state only pursuant to the criteria which are pointed out in the Constitution. The provision of Paragraph 1 of Article 43 of the Constitution that there are traditional Lithuanian churches and religious organisations is the constitutional basis upon which one may establish a different status of traditional churches and religious organisations in the state than that of other churches or religious organisations. It means that, without limiting the rights guaranteed for all churches and religious organisations, additional rights for traditional churches and religious organisations may also be ensured by law which are not enjoyed by the churches and organisations which are not traditional.

In its decision of 6 December 2007, the Constitutional Court, while construing its previous ruling, emphasised that from the Constitution itself also stems a possibility, while in some cases—the necessity, to establish differentiated legal regulation of corresponding relations with regard to churches and religious organisations that are traditional in Lithuania, as well as with regard to the churches and religious organisations that are recognised by the state, as collective legal subjects.

Prohibition of discrimination, inter alia on the grounds of religion, is entrenched in a great many laws of Lithuania, as, for example, the Labour Code, the Law on Education, the Law on Equal Opportunities for Women and Men, the Law on Medical Practice, etc. The Law on the Provision of Information to the Public also contains a prohibition to publish information which incites discrimination inter alia due to faith, convictions or views.

Under the Law on Religious Communities and Associations, all individuals, regardless of the religion they profess, their religious convictions or their relationship with religion, shall be equal before the law. It shall be prohibited to limit their rights and freedoms directly or indirectly, or to apply privileges. Certain protection is secured also by punitive means. Some of them are of general character, as, for example, the Criminal Code (Article 155) provides liability for degrading an individual (by public action, speech or writing), while others directly provide for liability for discrimination in the area of freedom of conscience. For instance, the Criminal Code (Article 170) provides for criminal liability for incitement against a group of people of any nationality, race, ethnicity, religion or any other group; Article 169 of the same code provides for liability for actions attempting to hinder a group of people or an individual belonging thereto, inter alia due to belief, convictions or views, to participate, together with others in a political, economic, social, cultural, labour or other activity, or to restrict the rights of such group of people or an individual belonging thereto; criminal liability is provided for hindering to perform religious rites as well. In addition, the Code of Administrative Violations of Law (Article 214) provides for liability for formation

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of an organisation propagating national, racial or religious discord, or for participation in the activities of such an organisation;

Thus, on the level of laws, both natural persons as well as the state and other legal persons, are prohibited from discriminating against other individuals who are believers.

3.

In the Ethics Code of the Association of Obstetricians-Gynaecologists of Lithuania, which was approved in a congress of doctors of this association, provides for the right of a doctor to refuse to perform an abortion. The same Ethics Code provides that after the doctor refuses to terminate pregnancy, the woman must be informed where she can do it.

Article 54 of the Ethics Code of Journalists and Publishers of Lithuania8 provides that a journalist and a provider of public information are prohibited from mocking inter alia a person because of his religious convictions also in cases when the person in question has committed a crime, or degrading him for the same reason.

4.

Religious feelings are related with religiousness. Religiousness is an influence of religion (doctrine, cult, ecclesiastical

institution) on the psyche or conduct of a person or of a corresponding group and their participation in the religious life.

The right to express religious feelings is a guarantee of freedom of conscience. The right to manifest religious feelings is secured by protecting (defending) religious symbols, their public use, inviolability of sacred and cult buildings, by assuring respect to religious feelings in mass media.

5. a) This right is defended in laws. Some religious symbols are protected as

objects of culture, if they have been recognised as such. The Law on Protection of Immovable Cultural Heritage provides that one of the purposes of protection of immovable cultural heritage is protection of sacral objects. The Law on Protection of Movable Cultural Properties names religious objects with cultural value as objects of the law.

Article 7 of the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See consolidates the right to freely practice the catholic religion, also, it consolidates the duty of the state to assure the respect of the sacredness of churches and chapels, of buildings directly related with places of cult, of their territories and

8 This Ethics Code was approved on 15 April 2005 at a meeting of representatives of journalists’ and publishers’ organisations.

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objects of religious cult, and, upon request of the authorities of the Catholic Church, to defend them.

In order to protect the sacred space of a church and other houses of prayer, an amendment to the Law on Alcohol Control was adopted, whereby it was established that in the Republic of Lithuania it shall be prohibited to trade in alcoholic beverages inter alia near houses of prayer within the distance established by the municipal council upon co-ordination with religious communities.9

Religious symbols are protected also by penal measures. The Criminal Code provides for criminal liability for improper actions (threats, taunts, etc.) disturbing mass or other rites or festivities (Article 171), and for criminal liability for vandal actions in a cemetery or for defilement of graves due to religious reasons (Article 312). The one who has given an order to destroy or who destroyed religious objects protected by international agreements or domestic legal acts, which was unjustified by the necessity of war, shall be punished by deprivation of freedom (Article 106).

b) Usage of religious symbols in public places is not regulated by a separate legal act, however, the Law on Religious Communities and Associations (Article 8) regulates performance of religious rites and cult ceremonies within cult premises and in their vicinity, in the homes and flats of citizens, funeral homes, cemeteries and crematoriums, and, pursuant to request by believers— in hospitals, social care facilities and places of detention, in military units, in state education and training institutions and performance of religious rites in other public locations as well, if those rites are not in violation of public order, people’s health, morals or the rights and freedoms of other individuals. One is to mention Item 38 of the Ordinariate Regulations of the Military Forces of Lithuania, which provides that the location of funerals and the performance of the religious part of ceremonies shall be regulated by the Drill and Ceremonies Regulations, however, the Ordinary shall have the right to establish exceptions to these regulations when religious rites are performed. In the course of the rites religious symbols (liturgical implements, actions etc., which support and concretise the religious doctrine) are also used.

In Lithuania, symbols of Christianity are passed from generation to generation, they reflect cultural values. The cross as a Christian emblem, as an expressive symbol means belonging to the Church, an organisation of believers; it also reflects the identification with the Nation. The erection of crosses, that of roadside poles with statuettes of saints is a widespread phenomenon in Lithuanian, a long-lived tradition10 and it is linked with these main functions: (1) consolidation of faith; (2)

9 The Republic of Lithuania Law on Alcohol Control (Article 18). 10 In 2001, cross crafting and symbolism in Lithuania, as a branch of art of the Lithuanian nation, was added to the UNESCO list of Masterpieces of the Oral and Intangible Heritage of Humanity.

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promotion of religious rites and focusing; (3) collective memory; (4) commemoration of members of a family; (5) expression of national identity.11

Decoration of Christmas trees, also their decoration with religious symbols in public places, are traditional. Some coats of arms of towns bear religious symbols. An agreement from the religious community is not required for using such symbols. In this context it is noteworthy that one of the treaties signed by the Republic of Lithuania with the Holy See provides that organisations and institutions of believers have the right to use the word “Catholic” only after they receive a written agreement of the competent authority of the Catholic Church. Under the Regulations of the Register of Legal Persons, which were approved by the Government, one of the requirements is that if the title of a legal person uses the word “Catholic”, an agreement of the authority (bishop) of the Catholic Church is needed.

c) In Lithuania, usage of religious symbols in state administration, in court, in public schools are not regulated by legal norms. As a rule, they are not used in such places.

d) Legal acts of Lithuania, which regulate the activity of religious organisations, do not provide for separate protection of buildings or other sacred objects, They are only protected as objects of culture, if they have been recognised as such. The inviolability of buildings of the cult of the Catholic Church and territories related with them is established in the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See. This treaty (Article 7) provides for three conditions when the churches, chapels, buildings directly related with them, territories thereof may temporarily be used for other purposes: important reasons, maintenance of respect to the sacred character of these places, agreement of competent authority of the Church. By the said treaty, under special circumstances, it is permitted that in objects of cult the competent institutions take security measures without informing the authority of the Church about it in advance when it is necessary for assuring public order or security of persons, or in order to preserve values of culture.

It needs to be mentioned that, under the Law on Religious Communities and Associations, religious communities and associations having the rights of legal persons may, according to the procedure established by the local government, have their own denominational cemeteries or their own territory within common cemeteries. The procedure for burial in denominational cemeteries or within a cemetery territory, allotted to a religious denomination, shall be established by the corresponding community or association.

11 Crosses used to be erected in Lithuania also during occupation periods, when it was prohibited to do so. At present, on the Hill of Crosses (near the city of Šiauliai) there are about 50,000 crosses, the erection of which has been taking place at this location since the XIXth c.

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e) Is respect for religious feelings in the mass media secured? In its ruling of 21 December 2006, the Constitutional Court noted that the constitutional freedom of associations and the constitutional provisions that the state recognises the churches and religious organisations that are traditional in Lithuania, and that churches and religious organisations are free to proclaim their teaching, imply that the law may (and, under certain circumstances, must), without violating the constitutional secularism and world-view neutrality of the State of Lithuania, as well as separation between the state and the church, establish a duty to the public broadcaster to give some air-time to public organisations and the churches recognised by the state.12

The Law on the Provision of Information to the Public provides that producers, disseminators and participants of public information must not disseminate tendentious and biased information about religion, must not discriminate other religions, and must clearly introduce religious organisations and their views so that people would not get confused.

The Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See provides that, while respecting the principle of freedom of religion, the Republic of Lithuania and the Catholic Church co-operate by seeking to secure respect, both in mass media and public life, for religious convictions and attitudes, as well as for ethical and religious values, religious symbols and sacred objects.

f) Legal acts of Lithuania do not provide a definition of religious symbols.

6. a) Paragraph 2 of Article 38 of the Constitution provides: “Family, motherhood,

fatherhood and childhood shall be under the protection and care of the State.” Paragraph 1 of Article 39 of the Constitution reads: “The State shall take care of families that raise and bring up children at home, and shall render them support according to the procedure established by law.” While construing the specified constitutional norms, it needs to be noted that Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution are to be related with Paragraph 1 of Article 38 thereof, which establishes that the family shall be the basis of society and the state.

In its ruling of 13 June 2000, the Constitutional Court held that the provisions of Paragraphs 1 and 2 of Article 38 of the Constitution mean the obligation of the state to establish such legal regulation by laws and other legal acts which might ensure that the family, as well as motherhood, fatherhood and childhood would be fostered and protected in all ways possible as constitutional values.

12 In the Council of Lithuanian Radio and Television one person is delegated by the Lithuanian Bishops’ Conference.

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b) In Lithuania, religious marriage is permitted. Paragraph 4 of Article 38 of the Constitution inter alia provides that the state shall also recognise church registration of marriages.

In its ruling of 21 April 1994, the Constitutional Court noted that state recognises marriages registered in church only after 2 November 1992 (i.e. after the entry into force of the Constitution), that registration of marriage (either performed by the state or by a church) is the beginning of legal relations of marriage and the rights and duties related to them; the rights and duties of spouses arise also from the day when marriages are registered in church. Alongside, the Constitutional Court emphasised that the state should determine by law a clear and fixed procedure for realisation of legal consequences ensuing from marriages registered in church, resolving of disputes thereof.

This was implemented in part when the legislator adopted a new Civil Code of the Republic of Lithuania in 2000, which came into force on 1 July 2001. Article 3.24 of this code provides:

“1. A religious marriage is formed in accordance with the procedures

established by the internal law (canons) of the respective religion. 2. The formation of a marriage in accordance with the procedures established

by a church (confession) shall entail the same legal consequences as those entailed by the formation of a marriage in the Register Office provided that:

1) the conditions laid down in Articles 3.12 to 3.17 hereof have been satisfied;

2) the marriage has been formed according to the procedures established by the canons of a religious organisation registered in and recognised by the Republic of Lithuania;

3) the formation of a marriage in the procedure established by a church (confession) has been recorded at the Register Office in the procedure provided for herein.” Paragraph 1 of Article 3.304 of the Civil Code provides that within ten days of

the religious marriage the person authorised by the respective religious organisation shall be obliged to present to the local register office a notification (of the form established by the Ministry of Justice) of the religious marriage solemnised in the procedure set by a church (confession).

Paragraphs 2 and 3 of the same article provide that, having received a notification of conclusion of a religious marriage in the procedure set by a church, the register office shall make a record of the marriage and issue a marriage certificate in accordance with the rules of this code provided the requirements established in the code have been complied with. In such a case the marriage shall be considered to be contracted on the day of its registration in the procedure set by a church. If the notification to the civil register office is not submitted within 10 days of the conclusion of marriage in a church, the marriage shall be held to have

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been contracted on the day when it was registered in the register office, but not on the day when it was actually contracted in church.

Thus, under the regulation established in the Civil Code, a religious marriage is considered to be contracted on the day of its registration in the procedure set by a church only in case if, within ten days of the religious marriage, the person authorised by the respective religious organisation presented to the local register office a notification of the concluded religious marriage.13

Marriages registered in the following state-recognised religious communities and associations are officially recorded in civil register offices: Latin-rite Catholics, Greek-rite Catholics, Evangelical Lutherans, Evangelical Reformed, Evangelical Baptists (Baptist Union of Lithuania), Christian Orthodox, Old Believers, Judaists, Sunni Muslims and Karaites.

Within ten days of the religious marriage the person empowered (authorised) by the respective religious community (except Latin-rite Catholics) shall, under established procedure, present to the local civil register office a notification (of the form established by an order of the Ministry of Justice) of the registration of marriage, while persons who have concluded marriage in a Latin-rite Catholic community shall present to the local civil register office a marriage certificate of the form approved on 25 August 1999 of the Lithuanian Bishops’ Conference.

The civil register office, after it receives the documents listed in the Procedure for Notification of Marriages Registered in the Procedure Set by a Church (Confessions), on the same day enters the marriage registered in the procedure set by a church (confessions) into official records, by entering the note of conclusion of marriage and issues a marriage certificate.

In this context, the provision of the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See is to be mentioned, whereby canon marriage shall entail civil consequences according to legal acts of the Republic of Lithuania, if the requirements provided for in laws of the Republic of Lithuania have been observed, as well as the provision that the time and manner how canon marriage must be recorded in the state register centre is established by the competent state institution upon co-ordination with the Lithuanian Bishops’ Conference.

c) Laws of Lithuania do not provide for a special grounds and procedure of termination of civil legal consequences of marriages concluded in the procedure set by a church (confession) and recognised by the state. An application regarding the civil legal consequences of marriages concluded in the procedure set by a church (confession) and recorded in the civil register centre and regarding other issues related thereto is considered in court, which, by annulling the entry of the marriage

13 Following Article 3.304 of the Civil Code, by his Order No. 124 of 27 June 2001, the Minister of Justice approved the Procedure for Notification of Marriages Registered in the Procedure Set by a Church (Confession).

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record, analogously applies the norms of the Civil Code regulating the provisions of termination of marriage which was contracted outside of a church.

The court, while granting the application on the civil legal consequences that appeared after the marriage concluded in the procedure set by a church (confession) was recorded in the civil register centre, annuls the entry of the marriage record regarding entering the marriage concluded in the procedure set by a church (confession) into the records of the civil register centre and decides other issues (division of property, care of the children, establishment of the place of residence, mutual support of the spouses, etc.).

The entry of an act of marriage in a corresponding church register on the basis of which a marriage certificate was issued remains valid if the marriage concluded in the procedure set by a church (confession) has not been recognised as null and void by a church court. Thus, if spouses have concluded the marriage in the procedure set by a church (confession), different jurisdiction is applied to its termination: civil jurisdiction, which is executed by courts of general jurisdiction, when the spouses have an interest in terminating the civil legal link and due to this there appear legal consequences, and church jurisdiction, which is executed by corresponding church institutions on the grounds of the norms of internal (canon) law, when marital links regulated by norms of canon law are terminated.

The marriage concluded in the procedure set by a church (confession) may be recognised as null and void by corresponding church institutions pursuant to norms of internal (canon) law.

Thus, in a court of general jurisdiction the issue of civil legal consequences, which appeared after the marriage concluded in the procedure set by a church (confession) had been recorded properly, may be considered only by means of annulment of the entry of the marriage in the record of the civil register centre.

When the Church recognises a church marriage as null (invalid), under the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See, state institutions must be informed about decisions of the Church tribunal on recognition of a canon marriage as null and void and about decisions of the Supreme Church Authority regarding termination of marital links in order to settle the legal consequences of this decisions according to legal acts of the Republic of Lithuania.

d) Paragraph 1 of Article 40 of the Constitution provides:

“State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall provide religious instruction.”

Thus, to state a request that their children be provided religious instruction and

what instruction of which particular religion is to be provided is a constitutional right of parents.

In its ruling of 13 June 2000, the Constitutional Court noted that the provision of Paragraph 1 of Article 40 of the Constitution that at the request of parents, state

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and municipal establishments of teaching and education shall provide religious instruction, presupposes that religious instruction is given at the request of parents (taking account of the norm of Paragraph 5 of Article 26 of the Constitution whereby parents and guardians shall, without restrictions, take care of the religious and moral education of their children and wards according to their own convictions, such a request may also be expressed by the guardians of a child). The Constitutional Court emphasised that to bring up their children, to take care of their religious and moral education according to their convictions is the constitutional right of all parents.

7. The constitutional provisions regulating the right of citizens to assemble to

peaceful meetings,14 the right to unite into associations (Articles 35, 36 of the Constitution), as well as the provision of Article 26 of the Constitution that no one may compel another person or be compelled to choose or profess any religion or belief, imply an opportunity to freely found religious communities and organise their activities. On the other hand, the provision of Article 43 of the Constitution specifies that the teaching proclaimed by churches and religious organisations, other religious activities and houses of prayer may not be used for purposes which are in conflict with the Constitution and laws.

Under Paragraph 4 of Article 43 of the Constitution, churches and religious organisations shall conduct their affairs freely according to their canons and statutes.

In its ruling of 13 June 2000, the Constitutional Court noted that the state does not interfere with the internal affairs of churches and religious organisations; they function freely according to their canons and statutes. Under the Law on Religious Communities and Associations, religious communities and associations shall have the right to freely organise in accordance with their hierarchic and institutional structure, and manage their inner life according to its canons and statutes, as well as other norms.

Performance of rites is discussed in a broader manner in Item I.2.

8. Article 162 of the Labour Code provides for days of holidays.15 The Catholic Church is putting forward initiatives calling to limit the work of

retail chains on Sundays and holidays. The Treaty “On Legal Aspects of the

14 Paragraph 1 of Article 36 of the Constitution: “Citizens may not be prohibited or hindered from assembling unarmed in peaceful meetings.” 15 The Labour Code provides that it shall be prohibited to work during holidays, with the exception of work which cannot be interrupted on technical grounds, work involving the need to provide services to the population as well as work involving urgent repair and loading.

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Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See provides that all Sundays and the six holidays listed therein are days-off. It needs to be noted that all the listed holidays are days-off under the Labour Code, as well (all in all, the Labour Code provides for 13 holidays).

III.

Freedom of conscience and religion implies that conditions must be created to

individuals to practice religion also under special conditions: in the army, in hospitals, in places of deprivation of freedom, etc.

1. In Lithuania, ministry services in the army are regulated in detail. Freedom of thought, conscience and religion shall not be restricted (Article 26

of the Constitution).16 Thus, the freedom of thought, conscience and religion is guaranteed and not restricted to a soldier as to any other person.

The Law on the Organisation of the National Defence System and Military Service provides that military chaplains are part of the National Defence System. In co-ordination with the leadership of officially recognised traditional Lithuanian churches, who assign the chaplains, the Minister of National Defence shall establish the regulations and procedures governing their activities. Military chaplains may be conferred military ranks. The Minister of National Defence confers military chaplains with their rank, after having received approval from the acknowledged and recognised traditional Lithuanian churches.

Catholic ministerial services are also regulated in the Treaty “On Ministry Services for Catholics Serving in the Armed Forces” concluded between the Republic of Lithuania and the Holy See.17 Under this treaty, the Head Chaplain is appointed as Vicar General, which is appointed by the ordinary of the armed forces upon co-ordination with the Minister of National Defence. The ordinary of the armed forces, upon co-ordination with the local bishop, shall appoint and dismiss chaplains. He has the right to instruct military chaplains on their ministry, to maintain constant ties with them either directly, or through representatives. A military chaplain visits military units, is in charge of religious rites, instructs religion and ethics, renders other ministerial services.

By the 18 November 2000 decree of Congregation of Bishops, the Holy See established the ordinariate of the Armed Forces of Lithuania, the purpose of which

16 In Article 87 of the 1922 Constitution of the State of Lithuania it was explicitly established: soldiers must be given time to perform their religious duties. 17 From 1991 till 2000, when the military ordinariate was established, the ministerial services were carried out according to individual agreements between the Catholic Church authorities and military authorities.

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is to take care of the religious services of Catholics serving in the Armed Forces of the Republic of Lithuania.

In Lithuania, in the course of the implementation of the Treaty “On Ministry Services for Catholics Serving in the Armed Forces” concluded between the Republic of Lithuania and the Holy See, two legal acts were adopted: the Statute of the Ordinariate of the Armed Forces of the Republic of Lithuania, which was approved by the Congregation of Bishops of the Holy See on 13 October 2001, and the 2 August 2002 Agreement “On the Regulation of the Ordinariate of the Armed Forces of the Republic of Lithuania” between the Lithuanian Bishops’ Conference and the Ministry of National Defence of the Republic of Lithuania. Under this regulation the Ordinariate is a legal person; it is not a constituent part of the armed forces. However, in the armed forces there are offices of the Ordinariate that are financed and provided from the funds of the State Budged allocated to the armed forces. Military chaplains are subordinate both to military and Catholic Church authorities.

It is noteworthy that, according to the Ordinariate Regulations approved by Agreement No. 140 “On the Regulation of the Ordinariate of the Armed Forces of the Republic of Lithuania” of 2 August 2002 concluded between the Lithuanian Bishops’ Conference and the Ministry of National Defence, in the biggest compounds and units of the armed forces, as well as in institutions of military studies and education, chaplaincies are established.18 For the purpose of officiation of the Catholic religious rites, appropriate premises of sub-units of the system of the National Defence are allocated for arrangement of chapels. Military chaplains take care of the ministerial services to the Catholics serving in the armed forces and to their family members. This agreement indicates that, among various ministry services to which the Catholics serving in the armed forces are entitled, there is rendition of help in cases of spiritual problems, also in cases of illness, injury or other kinds of shock. In addition, there is a duty of the commander of a military unit, under whose command the corresponding soldier is, immediately to inform the military chaplain about the case of death or grave injury of the soldier, or about another incident, when spiritual help is needed by the soldier or his family members.

Military chaplains play an important role in the armed forces, inter alia chaplains themselves together with the soldiers go to missions to other countries in which conflicts take place.

2.

The role of chaplains who work in the police is not as significant, the ministerial services provided by them are of lesser scope. Chaplains play a more important role in places of detention. The state has not established any centralised wages for these chaplains. After the Bishop attributes a concrete place of detention to them in

18 At present there are 16 military chaplains who work on a permanent basis.

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order to render ministerial services, they help the detained persons to implement their freedom of conscience.19

The Law on Pre-trial Detention (Article 13) provides that prisoners in remand shall have the right to satisfy the needs of their religious life, attend the services provided at the place of pre-trial detention and have in their possession religious books and articles of their denomination; the Code of Execution of Punishments (Article 106) provides that convicts the believers who are doing their time shall have the right, at the free-time scheduled in the time-table at correctional institutions, either alone or with other convicts, to perform religious rites. Upon a group request of convicts the believers, upon co-ordination with the administration of the correctional institution, a minister may be invited to perform the religious rites. Under the Code of Execution of Punishments (Articles 54 and 115), the administration of correctional institutions shall not check the items or clothes of ministers when they are entering or leaving the custodial premises or correctional institutions.

Under the Code of Execution of Punishments (Article 136), the administration of correctional institutions shall organise social rehabilitation of the convicts who are doing their time. State and municipal institutions, public organisations, religious communities and associations, their members and other legal and natural persons have the right to participate in this activity.

3.

The Bishop ascribes also the big hospitals to chaplains in order that they render ministerial services there; these chaplains are not paid by the state, either, and no material assistance is rendered to them by the state. Persons, who are in hospital and who cannot perform religious rites outside the limits of the hospital due to their health, may ask that a clergyman attend them and provide corresponding services. In some big hospitals chapels have been arranged by funds of believers to perform religious rites.20

It needs to be noted that the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See (Article 15) inter alia provides that the Republic of Lithuania guarantees the right of the Catholic Church to provide ministerial services in hospitals, children’s care homes and other establishments of healthcare and social care. The ministry in state and municipal establishments is regulated by agreement between the competent institutions of the Catholic Church and the competent

19 As well as chaplains in the police, most often they discharge these duties alongside those in the parishes ascribed to them. 20 It was explicitly established in the 1922 Constitution of the State of Lithuania: the people kept in hospitals, prisons and other public institutions must be given an opportunity to perform the duties of their faith.

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institutions of the Republic of Lithuania. Such an agreement has not been signed so far.

It needs to be mentioned that at present in Lithuania all the above-mentioned chaplains have been appointed only by the Catholic Church; other religious communities, since they are small and do not receive state assistance to maintain chaplains, do not appoint chaplains. Catholic chaplains render services also to believers of other faiths, if they request so.

IV.

At present there is only a draft questionnaire which will be presented at the population census in 2011. It contains the following questions on the topic of religion: are you a believer; to which religious community do you attach yourself (traditional religious community, other religious community, no religious community). Also, the possible choices of answers will be given: not indicated; difficult to say.


I. Religious communities vs. the state-general model of constitutional

relations

1. Under Paragraph 7 of Article 43 of the Constitution, there shall not be a state

religion in Lithuania. In its ruling of 13 June 2000, the Constitutional Court noted that it is not permitted to declare any religion as a state religion by law. A conclusion was drawn in this ruling that the principle of separateness of the church and the state is entrenched. While interpreting it, the Constitutional Court noted that it is the basis of the secularity of the State of Lithuania, its institutions and their activities; this principle, along with other constitutional provisions, determines neutrality of the state in matters of world view and religion. The fact that the State of Lithuania and its institutions are neutral as regards the matters of world view and religion, means disconnection of the purpose, functions and activities of the areas of the state and religion, those of the state and the churches and religious organisations.

Regardless of the fact that in the Constitutional Court acts one emphasised the neutrality and separateness of the state and the Church, it is possible to maintain, when account is taken of Paragraph 4 of Article 43 of the Constitution and other provisions of the Constitution, that the Constitution implies also corresponding partnership between the state and the Church.

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2. Under the Constitution (Paragraphs 4 and 5 of Article 43), churches and

religious organisations shall conduct their affairs freely according to their canons and statutes. The status of churches and other religious organisations in the state shall be established by agreement or by law.

In its ruling of 13 June 2000, the Constitutional Court noted that secularity of the state also presupposes non-interference with the internal life of churches and religious organisations by the state; also, churches and religious organisations do not interfere with the activity of the state, its institutions and that of its officials, they do not form state policy.

The Law on Religious Communities and Associations (Article 7) provides that religious communities and associations shall not fulfil state functions, while the state shall not fulfil the functions of religious communities and associations.

Legal acts of general content, which regulate relations between the state and religious communities, are the Constitution of the Republic of Lithuania and the Law on Religious Communities and Associations. The second group is composed of the legal acts which are designed for relations of the state and religious organisations only in separate areas, as, for example, the Law “On Returning of Buildings to Religious Communities”, the law regulating returning of Torahs to Judaistic religious organisations, the law regulating movable cultural values to the Catholic Church, etc. The third group is composed of the laws which are designed to regulate other social (non-religious) relations, however, they contain norms regulating also relations linked with religion (religious organisations). For instance, the Civil Code, the laws regulating taxes and other payments to the budget, the Law on Education, the Law on the Provision of Information to the Public, the Law on Land Reform, the Criminal Code, the Code of Criminal Procedure, the Code of Administrative Violations of Law etc. The fourth group is state agreements with a respective religious organisation.21

It has been mentioned above that the State of Lithuania has signed three treaties with the Holy See, which were ratified by the Seimas (Parliament). International treaties ratified by the Seimas are a constituent part of the legal system of the Republic of Lithuania. Other religious organisations also show initiative to sign corresponding agreements with the state.22

21 Under Paragraph 4 of Article 43 of the Constitution, the status of churches and other religious organisations in the State shall be established by agreement or by law. 22 In its decision of 6 December 2007, the Constitutional Court noted that the constitutional provision that “the status of churches and other religious organisations in the State shall be established by agreement or by law” may not be interpreted as an obligation for the state to make respective agreements with all churches and religious organisations traditional in Lithuania, also with other churches and religious organisations recognised by the state. The state freely decides regarding entering into respective agreements or not, and if to be entered, whom they will be entered with.

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In Lithuania, all draft laws deliberated in the Parliament are placed in the website of the Parliament and they are public. The Government, when it drafts draft legal acts directly related with religious organisations, co-ordinates them in advance. Religious organisations are active in participating in the process of legislation.23

3.

Paragraph 1 of Article 43 of the Constitution (unlike in the Constitution of the USA that prohibits entrenchment of any religion by law24) provides that the state shall recognise the churches and religious organisations that are traditional in Lithuania, whereas other churches and religious organisations shall be recognised provided that they have support in society and their teaching and practices are not in conflict with the law and public morals.

In its ruling of 13 June 2000 and its decision of 6 December 2007, the Constitutional Court noted that the Constitution explicitly consolidates the recognition by the state of the institute of churches and religious organisations traditional in Lithuania. The constitutional provision that the state shall recognise traditional Lithuanian churches and religious organisations presupposes the fact that the legislator may, in certain cases, name certain religious organisations as traditional in Lithuania.

Naming of churches and religious organisations as traditional is a special way of their recognition by the state. Naming of churches and religious organisations as traditional is not an act of their establishment as traditional organisations, but an act stating both their tradition and the status of their relations with society, which does not depend on the willpower of the legislator. Such an act reflects the development and the situation of the religious culture in society.

The Constitutional Court noted that the Constitution consolidates a threefold status of churches and religious organisations acting in Lithuania: some churches and religious organisations are traditional in Lithuania, other churches and religious organisations (non-traditional in Lithuania) are recognised by the state, yet other churches and religious organisations acting in Lithuania have neither the status of traditional in Lithuania, nor are they recognised by the state.

The Constitutional Court held that: – under the Constitution, the Seimas has the powers to name in the law (it

not only can, but also must do so) as to which churches and religious organisations are traditional in Lithuania;

23 A draft Law on Religious Communities and Associations was drafted for about a year and the Government approved it in 2002 and submitted it to the Parliament. However, after representatives of a number of religious organisations joined the deliberation, the Parliament has not adopted it yet. 24 First Amendment to the US Constitution.

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– only those churches and religious organisations may be named as traditional in the law, the tradition of which does not raise any doubts, since they are a part of the social, cultural and spiritual heritage of the society formed in Lithuania historically over the centuries; for churches and religious organisations to be recognised as traditional in Lithuania, it is far from sufficient for them to inter alia act in Lithuania for several decades or meet other formal criteria established by the legislator, since tradition of churches and religious organisations does not appear even over several generations, but it is a long-term process progressing uninterrupted over the centuries, which is to be related with a long-lived spiritual and cultural development of the Lithuanian society and which has an essential impact on it; the legislator may not extend the list of churches and religious organisations which are traditional in Lithuania, unless a very long time has passed after such statement and the extension of such a list would reflect the changed development and status of religious culture of the Lithuanian society;

– since the tradition of specific churches and religious organisations in Lithuania is an objective status of relations of churches and religious organisations with the society irrespective of the willpower of the legislator, the legislator may not withdraw the statement of the existence of this tradition;

– churches and religious organisations, which are not traditional in Lithuania may be distinguished from other churches and religious organisations that are not traditional by means of granting a special status to them, by means of establishment that they are churches and religious organisations recognised by the state. Taking into account the fact that the said special status is nothing else, but the establishment of the status in the state of a respective church and a religious organisation, as well as that this special status may be granted only to those churches and religious organisations, which have support in society, it is to be held that the granting of this status is within the prerogative of the legislator;

– the condition “have support in society” consolidated in Paragraph 1 of Article 43 of the Constitution means that for a respective church and a religious organisation the support of society should be strong and long-termed, therefore, it may not be limited to a small group of people or a small part of the society, or to several decades of activities, or to one or a few generations. Under Paragraph 1 of Article 43 of the Constitution, it should also be ascertained that the teaching and practices of that church and religious organisation are not in conflict with the law and public morals. If those conditions are not satisfied, state recognition may not be granted to a respective church or religious organisation.

Therefore, the provision “the State shall recognise <...> other churches and religious organisations <...> provided that they have support in society and their teaching and practices are not in conflict with the law and public morals” of Paragraph 1 of Article 43 of the Constitution implies a different legal situation, other than that, which is implied by the provision of this part that “the State shall recognise the churches and religious organisations that are traditional in Lithuania”. The churches and religious organisations that are not traditional in

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Lithuania may obtain state recognition by the willpower and resolution of the Seimas. It is to be noted that such state recognition, other than the statement that a certain church or religious organisation is traditional in Lithuania, may be withdrawn, if a respective church or religious organisation recognised by the state loses its support in society or its teaching and practices become contradictory to laws or public morals.

It means that the different status of churches and religious organisations that are traditional in Lithuania and other churches and religious organisations originates from the Constitution itself. From the Constitution itself also stems a possibility, while in some cases—the necessity, to establish differentiated legal regulation of corresponding relations with regard to churches and religious organisations that are traditional in Lithuania, as well as with regard to the churches and religious organisations that are recognised by the state, as collective legal subjects.

Alongside, it needs to be emphasised that the provisions of Paragraph 3 of Article 43 of the Constitution may not be construed as comprising a final list of the rights of churches and religious organisations. The rights of churches and religious organisations are also established in other provisions of the Constitution. The legislator is entitled, without violating the Constitution, to establish such rights for churches and religious organisations which are not expressly mentioned in the Constitution.

Summing up, it needs to be noted that Paragraph 7 of Article 43 of the Constitution establishes a threefold status of churches and religious organisations functioning in Lithuanian and the principle of the absence of a state religion. The tradition of religion is not to be identified with its belonging to the state system: churches and religious organisations do not interfere with the activity of the state, its institutions and that of its officials, they do not form state policy, while the state does not interfere with the internal affairs of churches and religious organisations; they function freely according to their canons and statutes. The legislator has the right to establish such rights of churches and religious organisations, which are not directly mentioned in the Constitution.


1.

The church and religious organisations are constitutional notions. Article 38 of the Constitution provides that the state shall also recognise church registration of marriages, while Article 43 explicitly mentions churches and religious organisations. the notion of church is also used in the Law on Religious Communities and Associations (Article 4): a religious community is a group or persons seeking to implement the aims of the same religion. Religious associations are unions of churches and of equivalent religious organisations—communities,

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which seek to implement the aims of the same religion. Thus, under this law, the notion of a church is not revealed, it is equalled to a religious organisation.

In Lithuania, there is no legal act regulating activities of sects. In 2003, in the Lithuanian parliament a draft Law on Restraint of Sects was registered. The law was not passed.25

2. As mentioned, the Constitution consolidates a threefold status of churches and

religious organisations acting in Lithuania: some churches and religious organisations are traditional in Lithuania, other churches and religious organisations (non-traditional in Lithuania) are recognised by the state, yet other churches and religious organisations acting in Lithuania have neither the status of being traditional in Lithuania nor are they recognised by the state.

Under the Law on Religious Communities and Associations, the state recognises nine traditional religious communities and associations existing in Lithuania, which comprise a part of the historical, spiritual and social heritage of Lithuania: Latin-rite Catholic, Greek-rite Catholic, Evangelical Lutheran, Evangelical Reformed, Christian Orthodox, Old Believer, Judaistic, Sunni Muslim and Karaite (Article 5).

Other (non traditional) religious associations may be granted state recognition as being a part of Lithuania’s historical, spiritual and social heritage, if they are backed by society and their instruction and rites are not contrary to laws and morality. State recognition denotes state backing of the spiritual, cultural and social heritage of religious associations. The Seimas of the Republic of Lithuania grants state recognition. Religious associations may request state recognition following the elapse of a period of no less than 25 years from the date of their initial registration in Lithuania (Article 6). In Lithuania, at present one religious organisation, the Baptist Union of Lithuania, has received state recognition.26

The rights of traditional religious communities and associations are pointed out in Chapter I.1.3.

Article 43 of the Constitution provides that the state shall recognise the churches and religious organisations that are traditional in Lithuania, whereas other churches and religious organisations shall be recognised provided that they have 25 One took account of Recommendation 1178 (1992) (1) “On Sects and New Religious Movements” and Recommendation 1412 (1999) “Illegal Activities of Sects” which were adopted by the Parliamentary Assembly of the Council of Europe, under which the basic legal acts related to sects are undesirable, since they can hinder the freedom of conscience and religion, which is guaranteed by Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and also since they can undermine traditional religions. 26 By Article 1 of the 12 July 2001 Seimas of the Republic of Lithuania Resolution “On Granting State Recognition to the Baptist Union of Lithuania”, the state recognition was granted to the Baptist Union of Lithuania.

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support in society and their teaching and practices are not in conflict with the law and public morals. Thus, in order that the churches and religious organisations, which are traditional in Lithuania, acquire the status of a legal person, the procedure of founding and registering established by the state is not necessary. They are such per se, therefore, under the Civil Code,27 the Regulations of the Register of Legal Persons confirmed by the Government, it is sufficient that they submit a request to include a religious community, association, or a centre, which belong to religions traditional in Lithuania, into the Register of Legal Persons.28 It is noteworthy that the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See (Article 2) provides that the Republic of Lithuania recognises the status of a legal person to the Catholic Church.

Those churches and religious organisations that have support in society and their teaching and practices are not in conflict with the law and public morals belong to the second group of churches and religious organisations.29 Therefore, under the norms of the Civil Code, the Law on Religious Communities and Associations, the Regulations of the Register of Legal Persons, must be registered under established procedure.

Other religious organisations which are not recognised by the state (third group)30 must be founded and acquire the rights of a legal person when they are registered in the Register of Leal Persons under procedure established in the Civil Code, other laws and the Regulations of the Register of Legal Persons.

When founding another (non-traditional) religious community, association or centre, as well as legal persons, affiliates and representations thereof founded for the aims of the same religion, it is necessary that the Register of Legal Persons be submitted, in addition to the founding documents, also with a conclusion of the Ministry of Justice that it is permitted to register the religious community, association or centre, as well as legal persons, affiliates and representations thereof

27 Paragraph 1 of Article 2.37 of the Civil Code: “Traditional religious communities and associations shall be legal persons. Other religious communities and associations gain the rights of a legal person in accordance with the procedure established in Chapter V of the given book as well as in other laws.” 28 It needs to be noted that not all formations of traditional churches and religious organisations that have been founded by their status and canons are included in the register. 29 Under the Regulations of the Register of Legal Persons, not only the state-recognised religious organisation itself, but also the legal persons founded by that organisation for the purpose of implementing the aims of the same religion, belong to the same group. 30 As well as legal persons established for the purpose of implementing the aims of the same religion.

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founded for the aims of the same religion, since the professed and preached religion does not violate human rights and freedoms and the public order.31

Alongside, it needs to be mentioned that religious communities may be registered, provided they unite no fewer than 15 members namely, adult citizens of the Republic of Lithuania.32

All registered religious organisations which are included into the register have civil rights and duties under the Civil Code. They may be liquidated according to the grounds provided for in the Civil Code. It needs to be mentioned that the Law on Religious Communities and Associations provides for different grounds of their liquidation. It contains the entrenched right of the Ministry of Justice to apply to court for suspension of activity of a religious community, association or centre, and only upon elapsing of six months, if the violations have not been rectified, the court may adopt a decision to cease the activity of the religious community, association or centre.

In Lithuania, at present, as it was mentioned, there are nine traditional religious organisations. According to the 2007 data, in total 1058 traditional religious communities, associations, centres or legal persons founded for the aims of the same religion were entered into the Register of Legal Persons. There is one state-recognised religious organisation and there are 8 legal persons founded by it for the aims of the same religion. There are 160 legal persons of other religious communities, associations, and centres or the legal persons founded for the aims of the same religion.

Summing up, it needs to be noted that religious communities and associations are legal persons of separate legal forms. Their activities are regulated by the Law on Religious Communities and Associations, the corresponding norms of the Civil Code, the Regulations of the Register of Legal Persons and other laws. Traditional churches and religious organisations are not founded under legal acts, they are only included into the Register of Legal Persons, while other state-recognised (non-traditional) religious communities and associations, and other religious communities and associations, which are not recognised by the state, are established under procedure established by legal acts of the state.

3.

In Lithuania, there is not any established state control over religious communities and associations: they are subject to control as well as all other legal persons, e.g. the State Tax Inspectorate executes taxation control. It needs to be

31 The same conclusion is submitted also in the cases when changes to documents or data of the religious community, association or centre, as well as legal persons, affiliates and representations thereof founded for the aims of the same religion are registered. 32 Article 11 of the Law on Religious Communities and Associations (access via the website www.lrs.lt).

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mentioned that in some situations a simplified procedure is established for religious organisations (regarding reception and provision of charity).

4.

The state does not interfere with the activity of a concrete religious community or association, or formation of their internal structure. It has been mentioned, that, before announcing about an appointment of a diocesan Bishop, the Holy See, in sign of honour, confidentially informs about it the President of the Republic of Lithuania.

5. The competence of religious organisations are established pursuant to the

statutes and canons that are established by such organisations themselves. There is not any state legal act, which would establish as to when state institutions would be obliged to apply norms adopted by a religious organisation. However, there are separate situations when state institutions must take account of the legal norms adopted by a religious organisation. For instance, the Register of Legal Persons indicates the persons who have the right to conclude transactions in the name of legal persons, and defines the limits of their rights. Only such persons are permitted to be entered into the register, which have the right to conclude transactions in the name of the religious organisation according to the statutes and canons established by that organisation itself. Courts, when they decide disputes regarding founding of religious communities, division of property of founded communities, also regarding registration, follow the Law on Religious Communities and Associations, the Civil Code and norms of other laws; they also take account of norms of religious organisations. There was a court decision obligating the Ministry of Justice to register the religious community the Osho Meditation Centre.


1. As mentioned, Paragraph 7 of Article 43 of the Constitution of the Republic of

Lithuania provides that there shall not be a state religion in Lithuania. It was mentioned that in its ruling of 13 June 2000, the Constitutional Court,

while interpreting this provision, noted that the principle of separateness of the church and the state is entrenched in the Constitution. The constitutional principle of separateness of the church and the state is the basis of the secularity of the State of Lithuania, its institutions and their activities; this principle, along with other constitutional provisions, determines neutrality of the state in matters of world view and religion. The fact that the State of Lithuania and its institutions are neutral as regards the matters of world view and religion, means disconnection of the purpose, functions and activities of the areas of the state and religion, those of the state and the churches as well as religious organisations.

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On the other hand, in itself, such separation of the functions and activities of the aims of the state and churches and religious organisations does not deny co-operation opportunities between the state and churches. When the constitutional provision that there shall not be a state religion in Lithuania is interpreted in relation with the provision “the status of churches and other religious organisations in the State shall be established by agreement or by law” of the same article, it would be possible to conclude that in the Constitution of Lithuania the principle of co-operation between the state and churches as well as religious organisations is reflected.

2.

There are no explicit provisions in the Constitution as regards state funding of churches and religious organisations. Taking account of the doctrine of constitutional entrenchment of the institute of recognition of traditional churches and organisations, which was formulated in the Constitutional Court ruling of 13 June 2000, it would be possible to conclude that funding of traditional churches and religious organisations, which would be established by means of a law, would not be in conflict with the Constitution. In its ruling of 13 June 2000 and decision of 6 December 2007, the Constitutional Court held: the Constitution explicitly consolidates the recognition by the state of the institute of churches and religious organisations traditional in Lithuania; from the Constitution itself stem the powers of the legislator to establish by law such rights to the churches and religious organisations that are traditional in Lithuania, which are not enjoyed by churches and religious organisations that are not traditional in Lithuania (obviously, the establishment of such rights must be substantiated constitutionally).

In Lithuania, every year the Law on the State Budget provides for some funds for the needs of traditional churches and religious organisations. The Government distributes these funds among the traditional churches and religious organisations in proportion to the number of believers. Another possible source of financing is the funding allocated for repair and restoration of objects of cultural heritage. All churches and religious organisations are eligible for corresponding means from this source of funding, provided their cult buildings are objects of cultural heritage, which urgently need repair and restoration. The sum received is not big, often the annual sum of money allocated for objects of cultural heritage of a religious organisation, which have to be repaired and restored, is not enough for repairs of one cult building. In individual special situations (natural calamities, fire), the Government allocates corresponding funds for the repairs of the damaged cult building regardless of whether this cult building belongs to traditional religion, or that recognised by the state, or another religious organisation. Corresponding funding is allocated to schools founded by traditional churches and religious organisations, if teaching in those schools meets the educational standards established by the state. All churches and religious organisations, as any other non-governmental organisation, may participate in competitions and receive funds if

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they conduct social or any other state-supported or municipally-supported activities.

Alongside, it needs to be mentioned that the state ensures the clergy by social and health insurance.

3. It would not be possible to assert that in Lithuania more protection is given to

religious values or symbols than to other values, e.g., the protection of human dignity.

There are no special legal norms regulating traffic during religious processions and in order to ensure respect to the religious symbols used in public places. These relations are regulated in the same manner as with regard to any other meeting under the Meetings Law. Article 5 of this law provides that the meetings arranged under procedure established by this law do not require any prior permission of the state or the local government; the organisers shall coordinate the place (the route of the procession or demonstration), time and other procedure of its arrangement with the chief officer of the executive body of the local government council or his authorised representative.

It needs to be mentioned that the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See inter alia provides that respect to religious convictions, symbols and values must be assured in all institutions of education and studies (Article 1), and that, while respecting the principle of freedom of religion, the Republic of Lithuania and the Catholic Church co-operate by seeking to secure respect, both in mass media and public life, for religious convictions and attitudes, as well as for ethical and religious values, religious symbols and sacred objects (Article 12). However, there is not any adopted legal act regarding the implementation of this provision of the treaty.

There is not any public knowledge whether there have been any disputes regarding competition of different religious symbols. A religious oath, as mentioned above, is chosen as an alternative.

It has been mentioned that in Lithuania the use of some religious symbols (chapels, crosses, Christmas trees) in public place is a long-lived cultural tradition, as well as the use of religious symbols in coats of arms of some towns.

4.

As mentioned, under the Constitution, in Lithuania, church marriage is recognised, also that recognition of a church marriage as null and void according to canons of a corresponding church or religious organisation gives rise to legal consequences. This is regulated by the Civil Code, orders of the Minster of Justice, treaties with the Catholic Church. Legal acts do not regulate the legal consequences (division of property, care of the children etc.) that appear after a marriage concluded by a church or religious organisation is terminated. However, under the

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case-law formulated by the Supreme Court the disputes arising therefrom are settled according to state legal acts by analogy. As mentioned, the state keeps the record of marriages concluded in a church, however, it does not register them anew. The Civil Code provides for a duty of the person authorised by the respective religious organisation to present, within ten days of conclusion of a religious marriage, to the local register office a notification of the religious marriage. If the registration of the marriage is not notified within the set time limit, the marriage is held to have been contracted on the day when it was registered in the civil register office. It needs to be noted that by such legal regulation the state “urges” to include church marriages into the state record, also creates possible preconditions for the spouses to experience negative consequences (including consequences of property nature, if their church marriage has not been included in the state records within 10 days of the contraction of the marriage in the church).

IV. Religious communities, education, and religious training (outside of

universities and other facilities of university degree)

1. Paragraph 1 of Article 40 of the Constitution provides that state and municipal

establishments of teaching and education shall be secular. In its ruling of 13 June 2000, the Constitutional Court held that this

constitutional provision presupposes a requirement that these establishments be tolerant, open and accessible to people of all religions as well as those members of society who are non-believers. The formula “secular” employed in Article 40 of the Constitution means that the Constitution establishes a presumption that teaching in state and local government establishments of teaching and education should be of secular content.

The Constitutional Court, when interpreting the provision “state and municipal establishments of teaching and education shall be secular” together with the provision “the human being shall have the right to have his own convictions and freely express them” of Paragraph 1 of Article 25 of the Constitution, noted that, under the Constitution, in such schools neither state or local government institutions, nor parents at whose request classes in religious instruction are offered, nor teachers of religion, nor traditional churches or religious organisations, nor any other state-recognised churches or religious organisations may set such requirements (save for teachers of religion). The Constitutional Court emphasised that otherwise the norm of Paragraph 1 of Article 42 of the Constitution whereby culture, science, research and teaching shall be unrestricted would also be denied.

The principle of secularity of state and municipal establishments of teaching and education entrenched in Paragraph 1 of Article 40 of the Constitution means, among other things, that the world-view content is secular in these establishments;

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when secular educational subjects are taught, pupils are not implanted any religion or belief.

The Constitutional Court also noted that it is only state and local government institutions that are permitted to manage, organise and supervise activities of state and local government educational establishments but never churches or religious organisations.

The Constitution (Paragraph 2 of Article 40) permits to found non-state establishments of teaching and education according to the procedure established by law.

The Law on Education (Article 28) provides that in Lithuania there are state-run, municipal and non-state general education, vocational, post-secondary schools, and schools of higher education. The Law on Higher Education provides that higher education establishments may be both state and not belonging to the state.

2. Public school

a) While interpreting Paragraph 1 of Article 40 of the Constitution, the Constitutional Court noted that the principle of secularity of state and municipal establishments of teaching and education means that all their constituent parts (classes, groups etc.) must be secular as well. These classes, groups may not be founded or formed otherwise on the grounds of religion, faith, or religion instructed. Groups may be formed on the grounds of religion only for the instruction of religion, however, under the Constitution, in state and municipal establishments of teaching and education on this basis it is not permitted to found or form otherwise classes, groups etc. in order to teach secular subjects.

Alongside, the Constitutional Court noted that one is not to draw a conclusion from the provision of Paragraph 1 of Article 40 of the Constitution providing for the presence of state and local government establishments of teaching and education, that several co-founders of state or local government establishments of teaching and education are prohibited and that the state and local governments (their institutions) are not permitted to be one of the co-founders of such establishments of teaching and education. However, under Paragraph 1 of Article 40 of the Constitution, these jointly founded educational establishments are secular.

The Constitutional Court recognised that Paragraph 2 (wording of 29 July 1998) of Article 34 of the Law on Education to the extent that the right is granted to state-recognised traditional religious associations to supervise not only how religion is taught in state and local government establishments of teaching and education but also all activities of these establishments conflicted with Paragraph 1 of Article 40 of the Constitution.

The Law on Education which is in force at present33 provides that legal entities and natural persons may establish general education, special education, non-formal education, vocational schools (Item 7 of Paragraph 1 of Article 42). Several natural

33 The Law on Education of a new wording came into force on 28 June 2003; www.lrs.lt

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persons or legal entities may found a school upon entering into a contract for school founding (Paragraph 3 of Article 42). A school is a public legal entity that functions as a budgetary or public establishment (Paragraph 1 of Article 43).

The Treaty “On Co-operation in the Area of Education and Culture” concluded between the Republic of Lithuania and the Holy See provides: the Catholic Church has the right to found or to be one of the founders of educational establishments of various types and of various stages of education. Such institutions are founded upon receiving a written permit of the competent authority of the Catholic Church and in pursuance with laws of the Republic of Lithuania. In these institutions education is conducted according to the Catholic doctrine, while subjects of general education are taught according to the programme approved by the competent institution of the Republic of Lithuania (Article 8).

At present, there are five schools, co-founded by local municipalities and the Catholic Church (the curia of corresponding diocese).34

b) Paragraph 5 of Article 26 of the Constitution provides that parents and guardians shall, without restrictions, take care of the religious and moral education of their children and wards according to their own convictions, while Paragraph 1 of article 40 thereof provides that state and municipal establishments of teaching and education shall be secular. At the request of parents, they shall provide religious instruction.

In its ruling of 13 June 2000, the Constitutional Court held that: (1) religious instruction is given at the request of parents (taking account of the norm of Paragraph 5 of Article 26 of the Constitution, such a request may also be expressed by the legal guardians of a child); (2) state and local government establishments of teaching and education have a duty to guarantee that, in case there is the request of parents, classes in religious instruction be offered; (3) religious instruction must be organised in such a way that secularity of state and local government establishments of teaching and education would not be denied.

Article 31 of the Law on Education provides that religion is an optional part of moral education. Moral education is a part of primary, basic and secondary education. Upon parents’ (guardians’, curators’) request, the subject of religion may be included in the pre-school education of their children. A learner has the right at the age of 14 to choose one of the following subjects of compulsory moral education: religious education (of a recognised traditional religious community or association) or ethics. Parents (guardians, curators) choose between the subject of religious education (of a recognised traditional religious community or association) and the subject of ethics on behalf of learners who are under 14 years of age; in cases of learners who are wards of the state, the school decides between the subject of religious education (of a recognised traditional religious community or association professed by the learner’s family or relatives) and the subject of ethics.

34 Information according to the Register of Institutions of Education and Studies; www.ipc.lt

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At a formal education school (except schools of higher education) the curriculum of religious instruction is prepared by the respective recognised traditional religious community or association; the hierarchy of the religious community or association and the Minister of Education and Science assess and approve the curriculum, each in line with their competency.

The Treaty “On Co-operation in the Area of Education and Culture” concluded between the Republic of Lithuania and the Holy See (Paragraph 1 of Article 1) inter alia provides that in all state and municipal educations of general education the Republic of Lithuania shall create the same conditions for the Catholic religious instruction as for the instruction of other subjects.

Under the same treaty, the preparation of the programmes, text-books and other didactic material for teaching Catholic faith shall be organised by the Lithuanian Bishops’ Conference in co-operation with the competent institution of the Republic of Lithuania. The Lithuanian Bishops’ Conference and the competent institution of the Republic of Lithuania approve the prepared text-books for use. The preparation and publishing of text-books for teaching Catholic faith are financed under the general procedure established by the competent institution of the Republic of Lithuania in co-operation with the Lithuanian Bishops’ Conference (Article 6). The institutions authorised by the contracting parties shall, within their competence, assure, that the content and methods of teaching Catholic faith are in line with the requirements established by the Catholic Church and the Republic of Lithuania (Article 7).

In 1993 the General Programme of Teaching Religion for 1993-1998 was approved by the Lithuanian Bishops’ Conference; in 1998 the Ministry of Education and Science and the Lithuanian Bishops’ Conference approved the programme for teaching Catholic Faith for forms I-XII; on 20-21 September 2005, the Lithuanian Bishops’ Conference approved the General Programme of (Catholic) Religion, which was also approved by the Minister of Education and Science by order No. ISAK-1484.

Under the said agreement, the certification of a teacher of Catholic faith and supervision of his work are conducted under procedure established in legal acts of the Republic of Lithuania, in the presence of representatives of the Lithuanian Bishops’ Conference (Article 7).

Under the Law on Education, a person who has attained a post-secondary or higher education level and a pedagogue’s qualification or has the necessary special preparation may teach religion in formal education programs (except higher education studies curricula). Such a person must have permission to teach religion, issued as prescribed by the hierarchy of the corresponding recognised traditional religious community or association (Paragraph 5 of Article 31). A person whose permission to teach religion has been rescinded by the leadership of a traditional religious community or association may not provide religious instruction in formal education programs (Item 1 of Paragraph 5 of Article 48). Analogous requirements are established in the Treaty “On Co-operation in the Area of Education and

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Culture” concluded between the Republic of Lithuania and the Holy See, where it is also established that the Procedure for Informing about the Loss of Permission to Teach is established by the authorised institution of the Republic of Lithuania and the Lithuanian Bishops’ Conference by a separate agreement (Paragraph 2 of Article 3 of the treaty). The said agreement has not been signed so far.

A person who is trained for teaching the religion of traditional religious communities or associations (Latin-rite Catholic, Greek-rite Catholic, Evangelical Lutheran, Evangelical Reformed, Christian Orthodox, Old Believer, Judaistic, Sunni Muslim and Karaite) may work as a teacher of religion. Such a person must hold a permit issued by a procedure established by the authority of a corresponding traditional religious community or association; clerics of traditional religious communities or associations can also provide such instruction.35

Teachers of religion may undergo the certification procedure after they receive a written agreement of a corresponding religious community or association.36

Under Article 31 of the Law on Education, a school that is unable to provide religious instruction requested by the learners or parents (guardians, curators) in line with the beliefs of their traditional religious community or association, grants credit for the learners’ religious instruction provided at a Sunday school or another religious instruction class, subject to the requirements established in this law.

Conditions for religious instruction and for teaching modules supplementing the program of religious instruction and satisfying the learners’ need for self-expression are equivalent to those for the teaching of other elective subjects (and for teaching modules supplementing their respective programs and satisfying the learners’ needs of self-expression) (Paragraph 7 of Article 31 of the Law on Education).

Under the Treaty “On Co-operation in the Area of Education and Culture” concluded between the Republic of Lithuania and the Holy See, in state and municipal schools teachers of Catholic faith have the same rights and duties as teachers of other subjects (Paragraph 3 of Article 3). In educational establishment where Catholic faith is taught as a subject of education of morals, teachers and pupils of Catholic faith are granted the same opportunities to develop extracurricular activities in making use of the premises and resources of these establishments, as teachers and pupils of other subjects taught (Paragraph 1 of Article 4 of the same treaty).

The achievements of pupils attending classes in ethics or religion are not assessed by marks—instead one is to write “passed” or “not passed”;37 at the beginning of each school year a pupil can change the subject of religion or ethics.

35 The Qualification Requirements for Teachers approved by Order of the Minister of Education and Science No. ISAK-506 of 29 March 2005. 36 The Regulations for Certification of Teachers approved by Order of the Minister of Education and Science No. ISAK-1578 of 27 July 2007. 37 See Order of the Minister of Education and Science No. ISAK-604 of 4 April 2007.

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In the programme of general education (forms V-X) one lesson per week is devoted for education in morals (religion or ethics); in order to implement the programme of general education a class may be divided into groups if no less than 5 pupils have chosen one subject of education in morals—either religion (of a traditional religious community or association) or ethics.38

It is noteworthy that in Lithuania in the academic year 2006-2007, 57.96 percent of pupils of forms I-XII were taught Catholic faith,39 while in the Vilnius archdiocese in the academic year 2007-2008, 47.68 percent of pupils of forms I-XII were taught Catholic faith.40

No rules for pupils’ promotion to a higher form as regards non-passing of religion or ethics are established—general rules are applied;41 also one does not regulate at what time religion or ethics should be taught under the time-table. This thing is within the competence of the administration of every school. There are not any publicly known complaints as regards inappropriate allocation of time for lessons of religion.

c) As mentioned, a learner has the right at the age of 14 to choose one of the following subjects of compulsory moral education: religious education (of a recognised traditional religious community or association) or ethics. Pupils may begin to attend or stop attending these lessons every school year when they choose between religion or ethics.42

d) Article 8 of the Law on Religious Communities and Associations provides that, upon request by students who are believers and their parents, the rites of traditional and other state recognised religious communities and associations, which are not contrary to the secular school concept, may be performed in state education and training institutions; participation shall be based upon free choice.

Item 11 of the General Programme of Teaching of (Catholic) Religion, which was approved by Order of the Minister of Education and Science No. ISAK-1484 of 13 July 2006, provides that during the lessons of religion it is desirable to create an atmosphere of listening, to create conditions for inner silence, contemplation, and, if there is a possibility, also for prayer.

e) In the Republic of Lithuania laws do not regulate this. In state and municipal schools the crucifix (cross) is, as a rule, in religion schoolrooms: schoolrooms of Catholic religion—the crucifix, schoolrooms of Orthodox Christianity—the orthodox cross, schoolrooms of protestant (Evangelical Lutheran, Evangelical Reformed) religion—the simple cross.

f) In Lithuania there are no legal norms which would provide for conditions when religious symbols could be banned. The Treaty “On Co-operation in the Area

38 See Order of the Minister of Education and Science No. ISAK-1424 of 19 May 2008. 39 See the website of the Lithuanian Catechetical Centre, www.katalikai.lt 40 See the website of the Catechetical Centre of Vilnius Archdiocese, www.lvk.lcn.lt 41 See Order of the Minister of Education and Science No. ISAK-556 of 5 April 2005. 42 Order of the Minister of Education and Science No. ISAK-1484 of 13 July 2006.

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of Education and Culture” concluded between the Republic of Lithuania and the Holy See provides that respect to religious convictions, symbols and values must be assured in all institutions of education and studies (Paragraph 3 of Article 1).

3. Private school

a) As mentioned, state institutions can found joint schools together with other persons, including religious organisations. Such schools must have one of the two forms established by the Law on Education, i.e. they must be either budgetary or public. However, under the doctrine of the Constitutional Court, they are to be regarded secular and they are not private.

Private schools are schools which are founded by private subjects, including religious organisations, and whose founder is not and cannot be a state institution.

Non-state schools, both founded by religious organisations and by other private persons are not differentiated. A religious school does not have a special status.

The principle of allocation of teaching funds for one pupil is applied in financing non-state schools from state and municipal budgets. The funds are not allocated if a non-state school works according to programmes recognised by foreign states, regardless of whether it is a private or religious school.

b) Paragraph 2 of Article 40 of the Constitution provides that non-state establishments of teaching and education may be founded according to the procedure established by law.43

The Law on Education provides that non-state school is a school founded by a Lithuanian legal entity (except the Seimas, the Government, the Ministry of Education and Science, other Ministries, Government agencies, agencies under the Ministries, the county governor or the municipal council) or natural person; or a school founded by a Lithuanian legal entity or natural person in co-operation with foreign legal entities or natural persons; a school founded by a foreign legal entity or natural person (Paragraph 19 of Article 2);

A non-state school is a legal entity.44 The founder chooses the statutory form of its activity. A school commences its activity after its registration in the Register of

43 The Law on Religious Communities and Associations provides that religious communities, associations and centres shall have the right to establish and have general education schools as well as other institutions of instruction, education and culture and also, institutions of instruction and training for preparation of clergy and religion instructors, in accordance with the procedure established by laws and other normative acts (Paragraph 1 of Article 14). 44 According to the information of the Register of Institutions of Education and Science, at present there are 7 non-state schools of general education, whose founders are religious organisations. The legal form of all these schools is one—a public establishment. Five of these schools were established by the Catholic Church (founders of three of them are monasteries, while two of them were founded by dioceses). One non-state school—Jewish Secondary School “Menachem’s House” was founded by the Vilnius City Jewish Religious Community “Chassidie Chabad Lubavitch”, another non-state school—a Christian

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Legal Entities. The school’s activity is regulated by the school’s by-laws. Schools must ensure the implementation of curricula and education programs, openness to the local community, the conclusion of study agreements and implementation of contractual obligations, as well as a good quality of education (Article 43). The enrolment procedure for a non-state school implementing formal education programs is established by the founder, based on enrolment requirements for the respective programs established in this law (Article 29).

Non-state schools may operate according to teaching plans and curricula recognised in foreign countries, however, even in this situation its curriculum content and methods must conform to the goals set for schools by the Ministry of Education and Science of the Republic of Lithuania (Article 43).

The learning achievements of a person are legitimated by means of an issued document: a matura attestation (upon completion of the secondary curriculum and upon passing the matura examinations) or a certificate (upon completion of the basic curriculum). The content of these documents is established by the Minister of Education and Science. The Law on Education does not provide for any differences between the matura attestations or certificates issued in state schools or in non-state (private) schools (including those founded by religious organisations). These documents have equal legal power.

In this context one is to mention the Treaty “On Co-operation in the Area of Education and Culture” concluded between the Republic of Lithuania and the Holy See, which provides that the Catholic Church has the right to found or to be one of the founders of educational establishments of various types and of various stages of education. Such institutions are founded upon receiving a written permit of the competent authority of the Catholic Church and in pursuance with laws of the Republic of Lithuania. In these institutions education is conducted according to the Catholic doctrine, while subjects of general education are taught according to the programme approved by the competent institution of the Republic of Lithuania (Article 8).

c) The Law on Religious Communities and Associations provides that educational institutions of traditional and other religious communities, associations and centres having the rights of a legal person, and schools of such religious communities, associations and centres, that provide the education prescribed by the state, shall receive financial and other support from state and local government budgets, according to procedure established by laws and other normative acts (Paragraph 2 of Article 14).

Educational establishments of traditional religious communities and associations which grant general education of the standard approved by the state are financed and maintained under procedure established by the Government or an

School—was founded by the Word of Faith Vilnius Christian Fellowship. Also, one non-state vocational school was founded—Public Establishment School of Trades “Masters of the Village” (founder—Vilnius Monastery of St. John’s Congregation).

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institution authorised by it, by allocating budget funds in the same proportion as allotted to state or municipal educational establishments of the corresponding type (stage of teaching). The size of funds is established by taking account of the expenses that fall upon one child, pupil in state or municipal educational establishments of the corresponding type (stage of teaching) (Paragraph 3 of Article 14).

Private schools founded by religious organisations are financed by the state. The so-called principle of setting an amount for teaching funds for one pupil is applied (Paragraph 1 of Article 69 of the Law on Education). However, private schools founded by religious organisations, save non-state schools established by a traditional religious organisation (when it is provided in a international treaty of the Republic of Lithuania), do not receive funds provided for economy.45

The Treaty “On Co-operation in the Area of Education and Culture” concluded between the Republic of Lithuania and the Holy See inter alia provides that in order to finance the education programmes of the standard established by the state which are implemented by non-state and non-municipal Catholic educational establishments, budget funds are correspondingly allocated under procedure established by the Government of the Republic of Lithuania or an institution authorised by it in proportion as allotted to state or municipal educational establishments of the corresponding type or stage of teaching (Paragraph 1 of Article 9). Additional programmes of non-state Catholic educational establishments are funded by the founder (Paragraph 2 of Article 9).

The teaching funds for schools of religious communities and associations are allocated from the state budget special targeted subsidy designed for formation of a “pupil’s basket”. The list of such schools shall be approved annually by the Minister of Education and Science no later than prior to the 1st October upon coordination with the Ministry of Finance; the calculation, allocation and accounting for teaching funds and a school’s economy funds are subject to state control.46

Taking account of the fact that, under the laws, only such schools are funded, which provide education of the standards established by the state, the state has a possibility to establish conditions for teaching programmes and the qualification of the teachers.

The Treaty “On Co-operation in the Area of Education and Culture” concluded between the Republic of Lithuania and the Holy See provides that the certification of a teacher of Catholic faith and supervision of his work are conducted under procedure established in legal acts of the Republic of Lithuania, in the presence of representatives of the Lithuanian Bishops’ Conference.

45 See Paragraphs 3 and 7 of Article 69 of the Law on Education. 46 See Government Resolution No. 1006 “On Approving the Inventory Schedule of Funding of Schools of Traditional Religious Communities or Associations Which Implement Programmes of Formal Education” of 31 August 2004.

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d) The Law on Religious Communities and Associations provides that religious communities, associations and centres shall have the right to employ individuals, with whom work contracts are drawn up in accordance with the procedure established by laws of the Republic of Lithuania (Paragraph 1 of Article 17).

Rights to social insurance and other rights and guarantees, established by laws of the Republic of Lithuania, shall apply to individuals, employed according to labour contract, with religious communities, associations or centres, their institutions, enterprises and organisations (Paragraph 1 of Article 18).

Under Article 31 of the Law on Education, a person who has attained a post-secondary or higher education level and a pedagogue’s qualification or has the necessary special preparation may teach religion in formal education programs (except higher education studies curricula). Such a person must have permission to teach religion, issued as prescribed by the hierarchy of the corresponding recognised traditional religious community or association. Such permission is to be regarded as a necessary part of qualification requirements for a teacher of religion. A person who does not have such a permission cannot teach religion. The grounds for loss of such permission are established by a traditional religious organisation, thus, it is possible to imply that out-of-class reasons related to the teacher may serve as such grounds.

4a

On 12 April 1922, the Faculty of Theology-Philosophy was founded in the University of Lithuania47 in Kaunas. The Vatican Congregation of Seminaries and University Studies confirmed it canonically in 1928 and it received the right to award academic degrees in theology and philosophy. During the periods of occupations (1940-1990) the Faculty of Theology-Philosophy was moved to the Interdiocesan Priest Seminary of Kaunas. At present the following study programmes are implemented at the Faculty of Catholic Theology of Vytautas Magnus University: undergraduate studies—Catholic theology (bachelor of theology), religious sciences (bachelor of religious sciences), Christian pedagogy (bachelor of religious sciences, school teacher); graduate studies—pastoral theology (master of theology), canon law (master of theology), Christian education (master of religious sciences).

By Government resolution No. 1284 of 13 October 2004 Vytautas Magnus University was permitted to organise postgraduate studies in the trend of theology and confer corresponding degrees of doctor. The studies and science in the Faculty of Catholic Theology are funded both by Vytautas Magnus University and the Church.

Sub-units of religious sciences in state universities: The Centre for Religious Studies and Research of Vilnius University.

Graduate studies—religion studies (master of religious sciences).

47 The University of Lithuania was named Vytautas Magnus University in 1930.

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The Department of Catholic Religion of the Faculty of History of Vilnius Pedagogical University. Undergraduate studies—Catholic religion (bachelor of religious sciences, school teacher). Graduate studies—Christian anthropological pedagogics (master of religious sciences).

The Department of Theology of the Faculty of Humanities of Klaipėda University. Undergraduate studies—Evangelical theology (bachelor of theology).

The Department of Art Education of the Faculty of Education of Šiauliai University. Undergraduate studies—artistic training and religion (bachelor of education, school teacher).

In addition, in Lithuania operate non-state schools of higher education, which used to function before the Soviet occupation and which have been restored. In such schools university studies are conducted (religious sciences—master of religious sciences). Such schools are Vilnius, Kaunas and Telšiai priest seminaries.

Also, LCC International University is to be mentioned, in which university-type higher education studies take place. Undergraduate studies—Evangelical theology (bachelor of theology).


1. After restoration of the independence of the Republic of Lithuania, on 12 June

1990 the Parliament adopted the Act of Restitution of the Status of the Catholic Church in Lithuania, in which it was inter alia established that the Republic of Lithuania will compensate the losses incurred by the Church under bilaterally acceptable agreements.

On 23 February 1995 the Law “On Returning of Buildings to Religious Communities” was adopted. It was established therein that until the adoption of the Republic of Lithuania Law on the Procedure for Returning of the Existing Property of Religious Communities, buildings shall be returned and privatised under the Republic of Lithuania Law “On Returning Houses of Prayer and Other Buildings to Religious Communities” of 14 February 1990 (Official Gazette Valstybės žinios, 1990, 8-196) only with permission of the Government upon co-ordination of the Seimas Legal Affairs Committee.

On 21 March 1995, the Law on the Procedure for the Restoration of the Rights of Religious Communities to the Existing Real Property was adopted. This law regulates the procedure and conditions for the restoration of the right of religious communities to the existing real property which was nationalised under the laws of the former LSSR (USSR) or in any other manner expropriated by the state, excluding land, internal water bodies, forest areas and parks as well as other property which, pursuant to Article 47 of the Constitution of the Republic of Lithuania, is the exclusive property of the Republic of Lithuania.

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Religious communities which functioned in the Republic of Lithuania prior 21 July 1940 and the property of which was expropriated by the state, have the right to reclaim real property. Those religious communities which are recognised as the successors of the religious communities which are being re-established, are entitled to the same right. This status must be approved by the supreme authority of the appropriate religious community.

Under Article 4 of the Law on the Procedure for the Restoration of the Rights of Religious Communities to the Existing Real Property, at the request of a religious community, the existing real property shall be returned to it in kind, with the exception of the following property: (1) residential houses and flats, if they are occupied by tenants; (2) buildings and other structures which have been reconstructed or rebuilt and thereby their gross floor area has been increased by more than 1/3 in a manner which makes it impossible to separate the additional floor area from the original one, or provided that their basic structures have been altered in excess of 50%; (3) buildings and structures which have been given over to scientific, medical, cultural, educational institutions or communications companies; and (4) buildings or their parts which have been conveyed into private ownership under the laws in effect at the moment of conveyance.

Big part of the property in kind regarding the grounds specified in this article has not been returned. In exceptional cases the right of ownership to the existing real property specified in Article 4 of this law may be restored by returning the property in kind by an agreement between the Government and the religious community, which has been approved by the Seimas. The request of a religious community regarding the return of real property in kind must be filed prior to the day of coming into effect of this law, save the situations when the circumstances provided for in Article 4 of the same law disappear. There are only several of such decisions adopted by the Seimas.

In the cases when a religious community does not wish to have the property returned to it in kind or if said property is not subject to be returned in kind in accordance with Article 4 of the Law on the Procedure for the Restoration of the Rights of Religious Communities to the Existing Real Property, the state shall buy out the property in one of the following ways: (1) transfer without payment the property of the same kind or value into the ownership of the community; (2) pay out a cash indemnity; (3) provide support for the repair works (renovation) of groups of monuments, buildings of worship; or (4) lease the land plot without announcing invitation for bids.

The religious community shall choose the method of buy-out. The property shall be bought out in accordance with the procedure and time limit determined by the Government, taking into account the real value of the property at the moment of its buy-out, upon deducting the expenses related to its improvement. The payment of cash indemnity for the real property that is being bought out shall begin after the lapse of five years from the day of passing of the decision concerning the payment of compensation.

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It needs to be mentioned that the process of restoration of property is slow and the Catholic Church began receiving the first compensations only in 2002, since it is necessary to wait for five years after adoption of a decision concerning returning the nationalised property by way of buy-out.

Religious communities are paid compensations for the real property from the funds of state and municipal budgets.

2.

Under the above law, only buildings are subject to returning, and there is not any adopted law on returning of land, however, at present the Catholic Church is negotiating with the Government on adoption of such a law. Alongside, it needs to be mentioned that, under the Law on Land Reform, under procedure established by the Government, religious communities, associations and centres, which functioned until 21 July 1940, whose property was nationalised, and which possess buildings and other erections by rights of ownership, are granted gratis the land lots within the limits established for exploitation of these buildings and other erections.

3.

A separate regulation was established regarding returning of Torahs to Judaistic religious communities or associations.

On 3 October 2000, the Seimas of the Republic of Lithuania adopted the Law “On Transfer of Religious Manuscripts (Torahs) Re-Written for Exceptional Purpose of Religious Rites to Judaistic Religious Communities or Associations”. It was established in this law that, upon the request of Judaistic religious communities or associations, the Torahs which are being preserved by the state may be returned to them; the criteria for selection of Torahs and the list of the Torahs to be transferred shall be approved by the Government, while taking account of the proposals of the Jewish Community of Lithuania; the procedure and terms of the consideration of applications are established by the Government.

On 14 December 2000, the Government adopted the Resolution “On Approving the Procedure for Transfer of Religious Manuscripts (Torahs) Re-Written for Exceptional Purpose of Religious Rites to Judaistic Religious Communities or Associations”. The said procedure provided for transfer of the Torahs kept at the National Library of Lithuania gratis to Judaistic religious communities or associations. The Government adopted several resolutions concerning transfer of Torahs to ownership of concrete claimants.

4.

On 15 February 2005, the Law on Restoration of the Ownership of the Catholic Church to Movable Cultural Property was adopted.

This law, while implementing Paragraph 4 of Article 13 of the Treaty “On Legal Aspects of the Relations Between the Catholic Church and the State” concluded between the Republic of Lithuania and the Holy See, and Paragraph 4 of

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Article 13 of the Agreement “On Co-operation in the Area of Education and Culture” signed between the Lithuanian Bishops’ Conference and the Republic of Lithuania, establishes the procedure and conditions of the right of ownership of the Catholic Church to movable cultural values, which were nationalised or otherwise seized in the period from 15 June 1940 till 11 March 1990.

Under the above law of 15 February 2005, the Catholic Church has the right to restore the right of ownership to the cultural values which are kept in state repositories, and which were nationalised or otherwise seized from the Catholic Church against its will. The right of ownership to the existing movable cultural values is restored by returning it in kind.

Upon adoption of a decision on restoration of the right of ownership, movable cultural values are returned to the Catholic Church by transfer-acceptance act. This act is signed by the representatives authorised by the Lithuanian Bishops’ Conference and the Minister of Culture within one month from the day of adoption of the decision.

Under the Law on Restoration of the Ownership of the Catholic Church to Movable Cultural Property, the movable cultural values returned to the Catholic Church remain recorded in state records and are included into the Register of Cultural Values. The Catholic Church assures that the movable cultural values that are returned to it be kept under procedure established in laws and be accessible to the public.

It needs to be mentioned that the values of special value, including precious items employed in liturgy, that belong to the Catholic Church, used to be seized from churches even in the eighties of the last century and no legal acts used to be adopted as regards the seizure of such movable cultural values. The returning of these values began two years ago after the Minister of Culture issued corresponding orders.

At present, under the Law on Protection of Immovable Cultural Heritage (Article 18), the archaeological findings discovered during research shall, if possible, be protected and exhibited at the place of discovery thereof. In other cases, in accordance with the procedure approved by the Minister of Culture, they shall be handed over to museums having conditions to preserve and exhibit them. The treasures taken for public needs shall be reimbursed in accordance with the procedure approved by the Minister of Culture.48

48 The Constitutional Court held more than once that in the course of adoption of a decision for seizure of property for needs of society also alongside the size of compensation for the property seized must be established, and also it must be established under what procedure the owner will be compensated for the property seized (Constitutional Court rulings of 4 March 2003 and 20 May 2008).

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VI. Possible deviations of facts according to norms

Such cases are very rare. One such is to be mentioned: after the Law on Education entrenched the principle that the funding of a school of a traditional religious community and association, which provides general education of the standard established by the state, is the same as of a state school, for several years such schools founded by the Catholic Church used to receive only partial funding from the state. After the said principle was consolidated in an international treaty with the Holy See and upon amending the Law on Education once again, these schools began to receive full funding.

C. LEGISLATION AND THE DIALOGUE BETWEEN THE EUROPEAN

UNION AND CHURCHES AND RELIGIOUS COMMUNITIES

I. List of the Constitutional Court rulings

The Constitutional Court rulings, conclusions and decisions in which the Court investigated (interpreted) the compliance of the norms regulating the relations between the state and the church, with the Constitution: rulings of 21 April 1994 and 13 June 2000, conclusion of 24 January 1995, decision of 6 December 2007.

The other rulings of the Constitutional Court that were mentioned in the text are those adopted on 28 February 1996, 9 December 1998, 4 March 2003, 1 July 2004, 29 December 2004, 8 July 2005, 21 December 2006, 7 January 2008 and 20 May 2008.

II. List of laws

The laws that expressis verbis regulate the relations between the state and the church:

The Law on Religious Communities and Associations; the Law “On Returning of Buildings to Religious Communities”; the Law “On Returning Houses of Prayer and Other Buildings to Religious Communities”; the Law on the Procedure for the Restoration of the Rights of Religious Communities to the Existing Real Property; the Law “On Transfer of Religious Manuscripts (Torahs) Re-Written for Exceptional Purpose of Religious Rites to Judaistic Religious Communities or Associations”; the Law on Restoration of the Ownership of the Catholic Church to Movable Cultural Property.

The other laws which were mentioned in the text: The Constitution; the Law on the Procedure for Entry into Force of the

Constitution; the Code of Administrative Violations of Law; the Criminal Code; the Code of Criminal Procedure; Code of Execution of Punishments; the Civil Code; the Labour Code; the Law on Alcohol Control; the Law on Education; the

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Law on Higher Education; the Law on Pre-trial Detention; Law on Protection of Movable Cultural Properties; the Law on the Constitutional Court; the Law on the Organisation of the National Defence System and Military Service; the Law on Medical Practice; the Law on Equal Opportunities for Women and Men; the Law on Protection of Immovable Cultural Heritage; the Law on Operational Activities; the Law on the Prosecutor’s Office; the Law on the President of the Republic; the Meeting Law; the Law on Courts; the Law on the Provision of Information to the Public; the Law on the Government; the Law on Land Reform.

III.

Three most important acts are to be mentioned: the Declaration on the Status of

Churches and Non-confessional Organisations, which was attached to the Treaty of Amsterdam, in which it was emphasised that the European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States; Articles 9 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms; the European Social Charter (Article E, Article 24).

The most important judgments of the European Court of Human Rights: Martins Casimiro v Luxemburg (1999) (the interests of the child were underlined), Manoussakis v Greece (1996) (freedom of choice and necessity to assure religious pluralism), Hasan and Chaush v Bulgaria (2000) (protection against unjustifiable interference by the state with founding of associations).

IV.

The main values for creation of the dialogue could be these: respect for human dignity, social justice, evasion of international conflicts and terrorism. Other values of the Christian heritage as well as the necessity to reflect peculiarities of other religions are also to be deliberated. The search of common values is somewhat problematic due to differences of religions as well as the varied nature of cultural and historical experience.

V.

After the treaties signed with the Holy See were ratified, in Lithuania there appeared more intensive co-operation between the state and the Catholic Church, and this prompted more active activities of other religious organisations in co-operating with the state, including submission of proposals concerning legal acts to the Government and the Parliament.

Neutrality of state institutions and also an attempt to reconcile members of separate religious organisations because of the internal disputes was a successful

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one (a peace agreement was signed between separate groups of Old-Believers, and this agreement was confirmed in court).

VI.

Freedom of conscience and religion also means that it is impossible to “compress” religion into only a private area of a certain religious organisation, persons have the right to live in religion also in public (especially when believers constitute the majority of society). Openness and transparency should be important not only in the dialogue with religious organisations, but also in the dialogue with society by informing it about the activity of religious organisations in the state, in conducting education about religions not only in schools, but also in universities, by organising conferences, performing scientific research, etc.

VII.

It would be expedient to invite representatives of as many religions as possible, by establishing corresponding proportions according to state and number of members of religious organisations.

VIII.

Inside the EU it is important to distribute the competence between institutions and to establish issues of priority which would be important to all religious organisations. Outside the EU it would be important to propagate standards of freedom of conscience, to promote religious pluralism especially in the countries which seek membership in the EU, also in the countries where there is a great number of violations in the area of freedom of conscience and religion.

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LEGAL STATUS OF THE RELIGIOUS COMMUNITIES IN POLAND.

(CHOSEN ASPECTS)

Prof. Marian GRZYBOWSKI Judge of the Constitutional Tribunal of Poland

A. Constitutional Framework

1. The Constitution of the Republic of Poland of 2nd of April 1997 regulates

relations between the state and religious communities predominantly in its Chapter 1 and 2. The Chapter 1 deals with general principles of the Constitution. The relations between the state and churches (and the other religious communities) find their constitutional framework mainly in Art. 25 of the Constitution. In Chapter 2 the freedom of religion as well as freedom of conscience is guarantied.

2. According to Art 2. sec. 1 “churches and other religious organizations shall have equal status”. No one has the privileged position and especially no one has reached the status of the official (state) church or religion.

3. Due to Art. 25 sec. 2 “public authorities in the Republic of Poland shall be impartial in matters of personal conviction, whether religious or philosophical, or in relation to outlooks on life, and shall ensure their freedom of expression within public life”.

It means that all the institutions of state or self-government become subordinated to the constitutional requirements of impartiality in matters of conviction (religious or philosophical). No religion or philosophical outlook reached the status of being “official” or “supported” by public authorities; no religious or philosophical interpretation of life was granted to be protected as predominant or specially worthy / useful for the state.

4. The organizational aspect of the relationship between the State (the Republic of Poland) and the churches and other religious organizations is determined by the provision of Art. 25 sec. 3-5 of the Polish Constitution.

5. The sec. 3 contains the most general formula, according to which the relationship between the State and churches as well as the other religious organizations “shall be based on the principle of respect for their authority and the mutual independence of the each in its own sphere, as well as on the principle of cooperation for the individual and the common good”.

This formula requires some commentaries. First of all, it underlines the “authority and the mutual independence” of both: the State and the religious communities. Among the religious communities the two categories of them become mentioned (and differentiated):

a) the churches

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b) other religious organizations. The Constitution by itself does not define any categories mentioned. As a result,

the legal status of “churches” and of the “other religious organizations” should be determined by ordinary statutes or, ever, by sub-statutory legislation (as a rule, not so stable)1.

Secondly, provisions of Art. 25 sec. 3 requires from both the state (and the state authorities) and from the churches / religious organizations respect for the mutual independence and autonomy of each the counter-part.

Thirdly, the Art. 25 sec. 3 in fine may by regarded as constitutional base (and justification) for the friendly cooperation between the state (and the particular institutions of the state) and the churches / religious organizations. It means that the Constitution has established the legal basis for partnership-relations; this kind of cooperation is not only possible but – due to the Art. 25 sec. 3 – even expected (and in constitutional terms – mandatory).

6. The further constitutional regulation describes the mutual relationship with more details. In particular due to Art. 25 sec. 4, “the relations between the Republic of Poland and the Roman Catholic Church shall be determined by international treaty concluded with the Holly See, and by the State”. It means that this relationship has double-type regulation: partially in a form of a statutory treaty (the “concordat”), and, additionally, of a statutory (internal) nature. The relations between the Republic of Poland and other churches (and religious organizations as well) shall be determined by statutes adopted “pursuant to agreements concluded between the appropriate representatives and the Council of Ministers” These requirements are established by Art. 25 sec. 5.

7. The over mentioned provisions need some comments. It is of some importance that the Roman Catholic Church (which has a predominant position among Poles) has its status regulated by the treaty which “external” authority: the Holy See. The other churches are excluded from this possibility literally by the Constitution (with no reference to another option and regardless the existence or inexistence of the “external” guiding body or authority of the particular Church / religious organization).

Secondly, the nature of the treaty mentioned is not fully determined. No special State authority was granted the right to negotiate this treaty (so it is – according to Art. 146 sec. 2 of the Constitution – the general sphere of the Government competencies). There is no-provision concerning its ratification, and – in particular – the need of the parliamentary decision.

8. In case of the other churches / religious organizations, the special type of statutory regulation has been established by Constitution. The statutes, which are in Poland initiated by a group of deputies, the Council of Ministers, the President and the Senate (second chamber of Parliament) or by the 500.000 of citizens shall

1 See in particular: Law of May 17, 1989 on guaranties of Freedom of conscience and religion.

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follow the earlier agreements and the respective church / religious authorities and the Council of Ministers have the privileged and, practically, the exclusive position to negotiate the agreements and to initiate the respective bills (statutory regulations).

B. Constitutional Jurisprudence and Constitutional Jurisdiction

Related to the Status of Some Religious Communities.

1. The concordat treaty between Poland and the Holly See was signed on July 28, 1993. The Polish prime-minister that time, Ms. Hanna Suchocka declared on the occasion of this event that the concordat regulation did not led to worsening of the legal position of the remaining churches and the other religious organizations in Poland.

2. However, the requirement of the statutory regulation should be understood as the necessity of majority support for all the statutory bills submitted by the respective subject of legislative initiative, mainly by the Council of Ministers.

The possibility of the initiative role of the Council of Ministers is, to some extend, limited by the requirement of previous agreement in-between the State (represented by the Council of Ministers or its plenipotaries) and the given church / other religious organizations represented by its statutory bodies. The lack of such an agreement results in stopping the Council of Ministers initiative and, finally, the required statutory regulation2.

The regulation (quoted above) offers some privileged opportunities to the minority religious communities3. In particular, those communities may successfully stop any governmental initiative denying their approval to governmental proposals dealing with their legal status. On the other “active” side, the minority churches / religious organizations remain not so privileged. They can send memoranda requiring the governmental proposals but those memoranda are not followed by real “sanctions” when the Council of Ministers tends to take the passive position or to try to run with unsatisfying proposals concerning the minority religious units.

3. The strictly literal interpretation of Art. 25 sec. 5 does not guarantee to such religious units (organization) any effective legal means resulting in obligation to enter the negotiation process preceding the agreement solution. On the other side, the concept of mutual agreement (between the state authorities and the religious organization) demands from both sides the real will to settle such agreement. So

2 See: Ł. Witkowski, Kilka uwag w sprawie zakresu kompetencji Rady Ministrów z art. 25 ust. 5 nowej Konstytucji RP (some remarks on issue of sphere of the Council of Minister’s competences derived from Art. 25 sec. 5 of the new Constitution of the Republic of Poland), in: Konstytucja – Wybory – Parlament (Constitution – Elections – Parliament), Warsaw 2000, p. 217 – 218. 3 In Polish context the „minority religious communities” are the churches and the other religious organizations beside the Roman Catholic Church.

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the initiative should be expected both from the State and from the respective religious organization.

4. The number of cases submitted to the Constitutional Tribunal dealing with the legal status of churches or the other religious communities can be described as rather limited. The majority of them have concerned the status of a given pieces of church property, especially on the territories in Eastern and North-Western Poland, due to post-war migration of the population and accompanying transfers of the religious communities.

The most prominent and at this same time the most disputable sentence was proclaimed by the Constitutional Tribunal of Poland on April 2, 2003 (case no K 13/02). The Autokefalic Orthodox Church of Poland questioned in this case some regulations (art. 46 sec. 1 point 3; art. 48 sec. 2 point 3 and art. 49 sec. 1 and 2) of the statute or Polish Autokefalic Orthodox Church of July 4, 1991, which was exacted six years before the Constitution of April 2nd, 1997 came to power.

According to the questioned regulation the church property, which was in 1991 used by the Roman Catholic Church units, become this church’s property regardless its previous legal status. Particularly in Southern and South- Eastern Poland due to mandatory emigration of Ukrainians (Ruthenious, so-called Łemko population) from these religious of post-war Poland to Soviet Ukraine, the Greek-Orthodox churches and chapels were transferred in fact into the hands of the Roman Catholic majority. The statutory regulations in question practically confirmed the over mentioned situation, which the Autokefalic Orthodox Church tends to consider unjustified and leading to its discrimination (and, finally, at last being the symptom of un-equal treatment). The statutory provision which were questioned before the Constitutional Tribunal differentiated the ability of the Autokefalic Orthodox Church and the Roman Catholic one to receive legal confirmation to be granted some pieces of church left property (in particular the Autokefalic Orthodox Church was deprived of the possibility to “inherit” the loosen property belonging in pre-war Poland to the Greek Catholic Church before World War Two.

The Constitutional Tribunal however did not confirm the main-stream accusations from the Orthodox Church. According to its judgment the statutory regulation which was questioned before the Tribunal mostly legalized the factual situation. So the properties which remain in hands of the Orthodox Church (or its institutions) were left as this Church property. Using the same principle of recognition (or confirmation) of the situation in existence, those pieces of the church property, and in particular, the property left by the Greek Catholic Church and practically used afterwards by the Roman Catholic institutions was “legalized” as the Roman Catholic Church property. In this context the statutory regulation of 1991 did not created the new situation which should be regarded as the real transfer of the left Greek-Catholic Church property. It simply transformed the factual situation to the legal one.

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C .The New Legal Dilemma before the Constitutional Tribunal of Poland

(cases un-resolved, pending before the Tribunal)

The three new cases were submitted in the late 2007 and at the beginning of 2008 to the Constitutional Tribunal of Poland linked directly or indirectly with the status of both the Roman Catholic Church as well as with the other (minority) churches.

The first case deals with the budgetary donation of the some of 40 millions zlotys (ca 12 millions of euro) to the National Salvation Roman Catholic Church, focused on the conformation of its continuation and, in particular, or organizing historical exposition showing the role of Church in rescuing the State and the Polish Nation, heated in the church constructed. The initiative comes from the parliamentary club of the Left Democrats.

The second case is linked with special budgetary provision supporting financially the three Roman Catholic universities (higher education institutions), including the Catholic University of Lublin, the Cardinal Wyszyński University of Warsaw as well as the Academy “Ignatianum” which is the higher school in the city of Cracow, led by the Jesuits. The initiative comes from the parliamentary club mentioned above.

The third case or the waiting list is the possibility to include to the final examination in the secondary public schools the subject “religion” (separately or, as alternative of “ethics”). The results of the examination is planned to be included into the final classification of the alumni, what may influence the possibilities to enter the universities (or the other institutions of higher education) or the basic of competitive “points” system of recruitment.

204

LA JURISPRUDENCE CONSTITUTIONNELLE EN MATIÈRE DE LIBERTÉ DE RELIGION ET DE

CROYANCE

António DUARTE SILVA Director NADIJ of the Constitutional Court of Portugal, and

José de SOUSA BRITO Judge at the Constitutional Court of Portugal

AVANT-PROPOS

a)- Le texte qui suit met à jour et développe le rapport présenté en 1999 par le

Conseiller José de Sousa e Brito, ″La jurisprudence constitutionnelle en matière de liberté confessionnelle au Portugal″, in Constitutional jurisprudence in the area of freedom of religions and beliefs – XIème Conférence des Cours Constitutionnelles Européennes, Varsovie, 2000, pp. 551-610 ;

b)- Dans le domaine de la liberté de conscience, de religion et de culte, la jurisprudence constitutionnelle portugaise est réduite et découle essentiellement de cinq arrêts prononcés entre 1987 et 1995. Elle est dans son intégralité antérieure à l’approbation, en 2001, de la Loi de la Liberté Religieuse (LLR) et à la ratification, en 2004, du nouveau Concordat entre la République portugaise et le Saint-Siège et elle a été tenue en compte pour l’exécution de ces deux actes normatifs ;

c)- Dans la mesure où il n’y a pas de nouvelle législation qui actualise ou complète aussi bien la LLR que le nouveau Concordat, il est possible de dire que la jurisprudence constitutionnelle a été « clôturée» et résumée aux cinq arrêts cités ;

d)- Dans l’abordage des thèmes proposés il a été considéré plus adéquat, concernant le thème constant du point A-I des « Thèmes», d’exposer en premier lieu le cadre constitutionnel, suivi de la teneur de la LLR et du Concordat (dans la mesure ou les deux sont ultérieures au précédent rapport) et enfin indiquer, même si son développement n’est pas significatif, le sens de la jurisprudence constitutionnelle portugaise ; quant au thème B-IV, il est à noter qu’il n’est pas possible de disposer d’éléments qui permettent de quantifier et de distinguer les écoles publiques et privées en question.

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A. STATUT INDIVIDUEL

I. L’essence et le contenu des libertés religieuses (de religion) et de la liberté de conscience

1. Le cadre de la Constitution

La liberté de conscience, de religion et de culte est réglementée, depuis la version originaire de la Constitution de 1976, dans l’article 41, intégré au Chapitre concernant les droits, les libertés et les garanties personnelles. Selon l’opinion des commentateurs, même si elle figure dans l’article comme une liberté unique, le point de référence est la liberté de conscience. Cette norme reconnaît, donc, trois droits connexes ayant chacun d’eux une amplitude différente (car la liberté de religion représente une spécificité de la liberté de conscience et la liberté de culte est une spécificité immédiate de la liberté de religion).

La liberté de conscience est un droit que l’on peut associer à la liberté de pensée et au cadre individuel, ce qui correspond essentiellement à la faculté de choisir les normes de valeurs éthique ou morale de conduite (propre ou d’un autre). Elle est plus ample que la liberté de religion car elle comprend également les convictions morales et religieuses. En tant que liberté individuelle elle n’admet pas de limites ou de restrictions permanentes. La liberté de conscience est de dimension multiple et comprend aussi bien la liberté de formation des convictions propres, que la liberté d’extériorisation des décisions de conscience, ainsi que la liberté d’action ou d’omission en fonction de la conscience. Elle comprend encore le droit à l’objection de conscience – qui, dans le fond, est une immunité reconnue en de vastes termes, bien que ambigus, dans l’article 41, n.º 6.

La liberté de religion se présente essentiellement comme un droit négatif, car elle consiste avant tout à la liberté d’avoir ou de ne pas avoir une religion et d’en changer. Elle est une spécificité de la liberté de conscience et n’est pas purement individuelle dans la mesure où elle possède également une dimension collective et institutionnelle. Les titulaires de ces droits collectifs de liberté religieuse sont les églises et d’autres confessions religieuses et ces droits comprennent diverses facultés ou diverses manifestations: aussi bien le droit à l’auto-organisation et à l’autodétermination que le droit à l’organisation du culte et à l’assistance religieuse des croyants, et que le droit à l’enseignement religieux dans les écoles, et encore le droit à l’utilisation des moyens de communication sociale.

La liberté de culte correspond à une spécification immédiate de la liberté religieuse qui se concrétise dans le droit individuel ou collectif de pratiquer des actes externes de vénération, même si les activités associées au culte peuvent être sujettes à des restrictions et à des limites juridico-constitutionnelles.

Le même article 41 de la Constitution envisage ensuite au n.º 4 le principe de la séparation entre l’État et les églises, en attribuant aux églises et aux autres communautés un triple droit : un droit à la séparation (c’est-à-dire, essentiellement le droit à la non intervention de l’État dans la sphère religieuse), un droit à la

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liberté dans son organisation (c’est-à-dire, à l’autonomie d’organisation) et un droit au libre exercice de ses fonctions et de son culte.

Il y a d’autres normes constitutionnelles connexes ou complémentaires aux principes de la liberté religieuse et de séparation entre l’État et les églises. Ce qui est vérifiable dans l’article 43 de la Constitution qui garantit la liberté d’apprendre et d’enseigner.

2. La Loi de la Liberté Religieues (LLR)

La Loi de La Liberté Religieuse (LLR) actuelle est la Loi nº 16/2001 du 22 juin. Elle a été approuvée le 26 avril 2001 par Le Parlement (Assemblée de la République). Lors du vote final, le point controversé concernait l’article 58 qui référait la législation applicable à l’Église Catholique. En effet, son vote a été évoqué par un groupe de députés de l’assemblée plénière qui souhaitait définir les conditions d’application de la LLR à l’Église Catholique, mais une telle proposition de modification a été rejetée – ce qui, en résumé revient à dire que le domaine d’application de la LLR s’est maintenu circonscrit aux confessions minoritaires.

Les principes généraux de cette nouvelle LLR figurent dans le Chapitre I (articles 1 à 7) et explicitent les principes constitutionnels qui motivent tout le règlement juridique du secteur. Deux articles sont mis en évidence : l’article 5 se rapportant au principe de la coopération (ce qui ne figurait pas dans la version initiale du projet) et l’article 7 sur le principe de la tolérance, qui est certainement le trait le plus original et marquant de la LLR, surtout en termes de droit comparé.

Quant aux autres Chapitres de la LLR (articles 8 à 69), ils abordent les matières suivantes : Droits individuels de liberté religieuse (Chapitre II); Droits collectifs de liberté religieuse (Chapitre III); Statut des églises et des communautés religieuses (Chapitre IV); Accords entre personnes collectives religieuses et l’État (Chapitre V); Commission de la liberté religieuse (Chapitre VI); Église Catholique (Chapitre VII, avec pour seul article : le cité article 58) et finalement les Dispositions complémentaires et transitoires (Chapitre VIII).

3. Le nouveau Concordat Saint-Siège – République portugaise

Le nouveau Concordat entre le Saint-Siège et la République portugaise est entré en vigueur le 18 décembre 2004, remplaçant le précédent Concordat du 7 mai 1940.

Le préambule commence par affirmer l’autonomie et l’indépendance de l’État et de l’Église Catholique, dans les ordres respectifs où ils s’insèrent. Le préambule affilie le Concordat dans « les relations historiques profondes entre l’Église Catholique et le Portugal», en soulignant les responsabilités mutuelles des Parties Contractantes qui les attachent dans le domaine de la liberté religieuse, « au service du bien commun et à l’engagement dans la construction d’une société afin de promouvoir la dignité de l’individu, la justice et la paix». Le préambule reconnaît la contribution significative du précédent Concordat à renforcer les liens

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historiques entre les deux parties et à consolider l’activité de l’Église Catholique en justifiant le besoin d’une mise à jour en raison des profondes transformations survenues, en particulier avec la nouvelle constitution démocratique portugaise et avec l’évolution de l’Église face à la communauté politique.

En résumé il est possible de dire que ce nouveau Concordat développe différents principes fondamentaux. On peut dire qu’il y a six principes généraux : le principe de liberté religieuse et de garantie autonome des autres droits de l’homme; le principe de coopération; le principe de la spécificité du statut de l’Église Catholique; le principe d’égalité entre les confessions religieuses; le principe de l’approche matérielle de solutions se rapportant à la LLR; et le principe du refus de la tutelle ou du caractère publique des identités religieuses dans le domaine du droit étatique.

4. La jurisprudence constitutionnelle

Le Tribunal Constitutionnel (TC) a apprécié les questions de constitutionalité se rapportant à l’article 41 concernant essentiellement, d’une part, le régime régulateur de l’enseignement de la religion et de la morale catholiques dans les écoles publiques et, d’autre part, le régime légal de l’objection de conscience au service militaire.

Quant à la première question, le TC a proféré deux arrêts en contrôle abstrait da le constitutionnalité, l’un et l’autre obtenus par majorité tangentielle.

Tout d’abord, l’arrêt 423/87 où, à la demande du président de la République, il a apprécié la constitutionnalité de toutes les normes du diplôme qui souhaitait procéder à la réglementation du précepte du Concordat de 1940 se rapportant à l’enseignement de la discipline de Religion et de Morale dans les écoles publiques des différents niveaux. Le TC a déclaré avec force obligatoire générale, l’inconstitutionnalité de la norme qui exige de ceux qui ne souhaitent pas les cours de Religion et de Morale Catholiques une déclaration exprimant cette volonté (à laquelle il a été ajouté deux autres normes supplémentaires).

Ensuite, dans l’arrêt 174/93 (de l’initiative d’un groupe de députés à l’Assemblée de la République), le TC n’a pas déclaré l’inconstitutionnalité de plusieurs normes figurant dans le règlement du gouvernement (Portaria) 333/86, du 2 juillet (diplôme qui règlemente l’enseignement de Religion et de Morale Catholiques dans l’enseignement primaire). Par ailleurs, il n’a déclaré l’inconstitutionnalité d’aucune des normes du règlement du gouvernement (Portaria) 831/87, du 16 octobre (diplôme qui règlemente l’enseignement de Religion et de Morale Catholiques dans les écoles supérieures d’éducation et dans les centres intégrés de formation d’enseignants des universités qui formeront des éducateurs d’enfants et des instituteurs de l’enseignement primaire).

Quant au régime d’objection de conscience, il importe surtout deux arrêts. Tout d’abord l’arrêt 363/91, émis en contrôle préventif de la constitutionnalité, où le TC a apprécié plusieurs normes du Décret de l’Assemblée nationale qui réglementait l’objection de conscience, en se prononçant par l’inconstitutionnalité des normes

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concernant certains crimes dont les comportements criminels ne traduisent pas ou ne laissent pas supposer une intention contraire à la conviction de conscience manifestée auparavant par l’objecteur de conscience ainsi qu’aux devoirs qui en découlent, notamment en ce qui concerne la non légitimité de l’usage de tout moyen violent. Il s’est également prononcé par l’inconstitutionnalité de la norme qui oblige sans discrimination les ex-objecteurs de conscience aux obligations militaires normales, sans tenir compte de leur acquittement total ou partiel du service civique.

Ensuite, dans l’arrêt 681/95 – qui a ultérieurement défini la jurisprudence du TC en de vastes dizaines de procès identiques se rapportant aux ″témoins de Jéhovah″ - il n’a pas été jugée inconstitutionnelle la norme qui exige la demande de concession du statut d’objecteur de conscience accompagnée d’une déclaration exprimant la disponibilité pour effectuer du service civique alternatif.

Il convient de noter, à titre de curiosité, que le principe de liberté de conscience est évoquée dans l’arrêt 130/88 et que le principe de la séparation, en dehors des arrêts 423/87 et 174/93 cités, a été évoqué aussi bien en contentieux électoral dans l’arrêt 602/89 que dans l’arrêt 268/04 (concernant la compétence exclusive des tribunaux portugais pour juger des actions de revendication des biens patrimoniaux de l’Église Catholique). Il a également été question dans deux autres arrêts, même si de manière très succincte (les arrêts 483/03 et 217/07) sur les fériés régionaux (en l’occurrence, le 26 décembre).

Pour finir, il faut noter que dans le domaine de sa compétence concernant les partis politiques, le TC a rejeté l’inscription d’un parti qui souhaitait adopter l’appellation de Parti Social Chrétien et adopter un symbole représentant un poisson de couleur blanche sur fond bleu.

En résumé, la jurisprudence constitutionnelle portugaise sur la liberté de conscience, de religion et de culte est restreinte, elle aborde à peine trois matières sensibles sur lesquelles le TC a proféré des arrêts controversés, elle met l’accent sur une législation actuellement révoquée ou modifiée. Par ailleurs, le TC n’a, jusqu’à présent, pas été appelé à se prononcer sur la nouvelle législation éminente – LLR et Concordat – ni sur ses règlementations.

Cependant, les implications de cette jurisprudence n’ont pas été de faible importance quant au principe de la séparation dans les domaines de l’enseignement public et de l’organisation scolaire, et l’on peut rehausser deux grandes lignes de force: d’un côté, la valorisation de l’aspect ’positif’ de la liberté religieuse; d’un autre côté, une entente non rigide du principe de séparation. Mais cette jurisprudence, surtout concernant la solution apportée par l’arrêt 174/93, n’a pas été des plus pacifiques. Outre les divergences découlant des déclarations de vote des six juges vaincus, la doctrine s’est également partagée radicalement. Le TC s’est vu accusé d’assurer l’hégémonie de la confession religieuse dominante; il s’est encore vu accusé d’essayer une jurisprudence de compromis entre la norme constitutionnelle et la pratique religieuse.

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II . La protection des valeurs religieuses en tant que droits fondamentaux de l’homme dans la jurisprudence des tribunaux

constitutionnels, d’après les exemples choisis

1. La protection des valeurs religieuses dans le droit statué (national) Outre ce qui provient de la Constitution, du Concordat et d’autres Accords entre

des personnes collectives religieuses et l’État, les valeurs religieuses sont particulièrement garanties par la LLR et par la législation se rapportant soit à l’enseignement dans les écoles publiques, soit à l’assistance religieuse, soit à la protection contre des actes antireligieux.

La LLR développe surtout les droits individuels de liberté religieuse par le biais de douze articles inclus dans son Chapitre II, en les énumérant et en donnant des exemples, tout en suivant des critères pragmatiques, ce qui est clairement défini dans les articles 8 et 9 en tant que contenu positif et négatif de la liberté religieuse.

L’article 8 compile en neuf points les différents types de droits qui intègrent le contenu de la liberté de conscience, de religion et de culte, faisant ressortir particulièrement les personnes ayant des convictions athées ou agnostiques et en innovant quant au droit de choisir pour les enfants les noms propres de l’onomastique religieuse professée.

Ensuite, dans l’article 9, il est question du contenu négatif de la liberté religieuse, en formulant en quatre alinéas les « libertés négatives », rendues autonomes par quelconque raison spécial (par exemple, historique ou par crainte de violation).

2. La protection des croyants contre la discrimination pour les convictions religieuses

Les dispositions constitutionnelles qui protègent les croyants contre la discrimination religieuse sont diverses.

Comme il s’ensuit de l’article 41 de la Constitution, la garantie de la liberté religieuse s’exprime par l’interdiction de toute discrimination ou de tout privilège pour des raisons religieuses, car le n.º 2 assure que « personne ne peut être poursuivi, privé de droits ou dispensé d’obligations ou de devoirs civiques en raison de ses convictions ou de sa pratique religieuse». Cette norme développe ce que la Constitution prévoit dans l’article 13, n.º 2, concernant le principe de l’égalité et dans l’article 26, n.º 1, concernant d’autres droits personnels - lesquels doivent être associés au droit compris dans le même article 41, n.º 3, correspondant à la réserve personnelle des convictions religieuses,.

La LLR énonce le principe de l’égalité dans l’article 2. Dans le n.º 1 elle synthétise ce qui est ordonné dans les articles 13, n.º 2, et 41, n.º 2, de la Constitution concernant le principe de la non discrimination négative et positive. Le n.º 2 spécifie que l’État ne fera aucune discrimination sur une quelconque église ou communauté religieuse à l’égard des autres.

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Quant au Code pénal, il prévoit et punit dans l’article 240 celui qui fonde, participe ou encourage des organisations ou des activités de propagande organisée qui incitent à la discrimination, à la haine ou à la violence religieuses; il punit également celui qui en réunion ou par le biais d’écrits publics provoque des actes de violence contre des personnes, diffame, injurie ou menace des personnes en raison de sa religion ayant l’intention de l’inciter à la discrimination religieuse.

3. La motivation religieuse de certaines activités pragmatiques professionnelles

À partir de la révision constitutionnelle de 1982 il a été évident que le régime constitutionnel de l’objection de conscience est devenu, outre les obligations militaires et les raisons religieuses, passible d’être évoqué dans d’autres domaines et d’être fondé sur d’autres raisons de conscience (morales, philosophiques, etc.).

Comme il a été dit, la jurisprudence du TC est avant tout comprise dans l’arrêt 363/91 qui s’est prononcé par une inconstitutionnalité partielle selon l’application du principe de la proportionnalité, associé au principe de l’égalité . Aussi, l’élaboration de la nouvelle loi sur l’objection de conscience (Loi 7/92, du 12 mai) a été conclue seulement dans la législature suivante.

La procédure établie pour être considéré objecteur de conscience a néanmoins soulevé des problèmes à l’égard des « Témoins de Jéhovah» - car ils refusent non seulement la prestation du service militaire mais aussi la prestation du service civique. Dans l’arrêt 681/95, déjà cité, le TC a conclu que l’exigence de la déclaration d’acceptation pour prester des services civiques s’oppose à la reconnaissance du statut d’objecteur total.

Or, c’est en tenant compte de cette jurisprudence que la LLR est venue réglementer l’objection de conscience dans son article 12. Les n.ºs 1 et 2 définissent le statut de l’objection de conscience en fonction de la liberté de conscience, c’est-à-dire comme une sorte de relation d’immunité face à un commandement normatif car il considère indéclinables les dictamen de conscience dont la violation implique une offense grave à l’intégrité morale qui rende inexigible tout autre comportement. Le n.º 3 traite spécifiquement les objecteurs de conscience dans le service militaire.

Le terme de l’obligation du service militaire en temps de paix (Loi 174/99, du 21 septembre) a réduit l’importance pratique de l’objection de conscience au service militaire. En contrepartie, il y a eu une importance croissante de certaines catégories professionnelles (médecins et personnel du service de santé), de certains domaines tels que la bioéthique et encore dans les relations de travail au sein des organisations de tendance. Quant aux «Témoins de Jéhova» les questions les plus récentes sont également liées à la liberté de religion et proviennent des refus de transfusion sanguine fondés sur les convictions religieuses. Le cas le plus récent de reconnaissance légale de l’objection de conscience est celui des médecins et autres professionnels du service de santé envers tout acte concernant l’interruption volontaire de grossesse.

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4. Le droit à la manifestation de ses sentiments religieux Les droits constants de l’article 8 de la LLR faisant référence à la manifestation

des sentiments religieux sont nombreux. Tout d’abord, le droit à la pratique des actes de culte, aussi bien public que

privé [alinéa b)]. Outre le droit de professer sa croyance et de chercher de nouveaux croyants, il y a le droit d’«exprimer et de divulguer librement par le biais de la parole, de l’image ou de tout autre moyen sa pensée en matière religieuse» [alinéa d)]. À son tour, il est reconnu le droit d’«agir ou ne pas agir conformément aux normes de la religion professée», bien qu’imposant des limites tels que «le respect des droits de l’homme et le respect de la loi» [alinéa g)].

5. La protection des sentiments religieux

Les sentiments et les symboles religieux sont avant tout protégés par le code pénal qui prévoit et puni spécifiquement en tant que crime contre des sentiments religieux tout outrage à la croyance religieuse et aussi tout l’empêchement ou perturbation des actes de culte. La révision du Code pénal de 1995 a distingué les crimes visant directement la religion des crimes visant le « respect dû aux morts» (les deux intégrés dans la section des «crimes contre la vie en société», dans la version de 1983).

Le crime d’outrage pour des raisons de croyance religieuse (article 251) se rapporte à celui qui offense ou bafoue autrui publiquement en raison de sa croyance, de sa fonction religieuse ou encore profane le lieu ou l’objet de culte de manière à perturber la paix publique. Le crime d’empêchement, de perturbation ou d’outrage à un acte de culte (article 252) s’étend à celui qui, par le biais de la violence ou de la menace d’un mal important, empêche ou perturbe l’exercice du culte de la religion ou encore qui vilipende publiquement l’acte de culte religieux ou le méprise.

Par ailleurs, outre les diverses normes de la LLR qui contemplent le statut des ministres de culte, l’article 135, n.º 1, du Code de procédure pénale analyse concrètement le secret professionnel des ministres de religion ou de confession religieuse. À son tour le Code de la publicité de 1990, interdit la publicité qui a recours aux symboles religieux de manière dépréciative et qui contient une quelconque discrimination concernant la religion ou encore qui a pour objet des idées de contenu religieux. L’article 25 interdit la publicité pendant la transmission des services religieux. Il semble par ailleurs que le Décret-loi nº 6/95, du 17 janvier, interdit définitivement toute forme de publicité d’une confession ou d’une organisation religieuse.

Ni la Constitution, ni en général la législation du Droit de la Religion ne contiennent des normes explicites sur l’usage des symboles religieux dans des lieux publics ou dans l’administration publique, dans les tribunaux, dans les écoles, etc.

Par conséquent d’un point de vue constitutionnel et légal, l’usage de symboles religieux n’est pas interdit aux enseignants, ni aux élèves (étudiants) ni aux fonctionnaires.

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Il faut, alors, interpréter les principes généraux. La non confessionnalité de l’école publique semble impliquer sa neutralité en matière de religion mais la Constitution, tout en imposant la laïcité n’impose pas, mais semble plutôt interdire, le laïcisme. Or l’interdiction de l’usage des symboles religieux relève plus du laïcisme que de la laïcité. Cependant, le principe de séparation et le caractère non confessionnal de l’État, interdit aux établissements d’enseignement public l’utilisation de signes et de symboles religieux dans leurs installations, en particulier dans les salles de cours. Toutefois, l’utilisation des salles et des équipements publics est assurée pendant les cours de religion et de morale des différentes confessions, mais, dans ce cas, l’usage des signes et des symboles relève exclusivement de la confession religieuse en question.

La jurisprudence constitutionnelle sur cette question spécifique de la protection des sentiments religieux se limite à un arrêt, élaboré dans le domaine de sa compétence concernant le registre des partis politiques. En refusant l’inscription d’un parti politique dénommé « Parti Social Chrétien» ayant pour symbole un poisson de couleur blanche sur fond bleu, le TC a entendu, dans l’arrêt 107/95 déjà cité, qu’une telle dénomination et sigle contrariaient l’interdiction constitutionnelle des expressions évoquant directement une religion et que le symbole violait la même interdiction reportée aux symboles religieux. Pour le Tribunal, une telle interdiction prétend défendre la bonne-foi des citoyens et prétend assurer des conditions de transparence dans la participation politique de ceux-ci, afin d’éloigner tout jugement de confusion avec des religions ou des églises à l’abri du principe de la non confessionnalité de l’État. Concernant le symbole, compte tenu que le poisson a historiquement représenté le nom symbolique du Christ, même s’il ne constitue pas un symbole du christianisme par excellence, il peut être, encore de nos jours, considéré en tant que tel dans certaines circonstances.

Mais, en effet, la doctrine portugaise s’est limitée à apprécier la question concernant les ordres juridiques étrangères; ou plus récemment encore, elle intègre la protection des sentiments religieux dans le discours ou dans l’impératif constitutionnel sur la tolérance.

6. La protection des valeurs religieuses dans les rapports religieux et à l’égard de la famille

Actuellement, la Constitution, le Code civil et la LLR admettent différentes formes de célébration du mariage, mais pas différents tipes de mariage (ou mariages de différente nature); ces différentes formes de célébration du mariage sont sujettes au même régime légal quant aux exigences requises, aux effets du mariage et à sa dissolution, y compris la dissolution par le divorce.

Dans le nouveau Concordat, le mariage canonique est réglé dans les articles 13 à 16 - lesquels, à l’exception de l’article 16 qui a une nouvelle rédaction, correspondent presque dans leur intégralité aux articles 22 à 25 du Concordat précédent. Essentiellement concernant le divorce, il a été maintenu, dans le n.º 2 de l’article 15, la formulation venue du protocole additionnel de 1975 selon

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laquelle «le Saint-Siège, en réaffirmant la doctrine de l’Église Catholique sur l’indissolubilité du lien matrimonial rappelle aux conjoints qui contracteront le mariage canonique le grave devoir qui leur revient de ne pas se faire valoir de la possibilité de demander le divorce». Il s’agit d’une disposition discutable parce que purement déclamatoire et non normative.

La disposition plus innovatrice (et très discutée à la Commission de négociation) concerne les effets civils reconnus aux décisions relatives à la nullité et à la dispense pontificale du mariage blanc et non consommé accordée par le biais des autorités ecclésiastiques compétentes, dans la mesure où le nouvel article 16 prévoit expressément son assujettissement à la révision et sa confirmation, aux termes du droit portugais par le tribunal compétent de l’État (n.º 1), en indiquant, outre les conditions dont dépend la vérification par le tribunal compétent, la dépendance de la concession de la révision et de la confirmation.

Enfin, le droit des parents à l’éducation religieuse des mineurs est prévue dans l’article 11 de la LLR, dont le n.º 1 prévoit qu’un tel droit s’exerce «selon ses propres convictions en matière religieuse, dans le respect de l’intégrité morale et physique des enfants et sans préjudice de leur santé». Il est possible de considérer qu’il découle de l’article 36, n.º 5, de la Constitution – qui établit expressément que «les parents ont le droit et le devoir d’élever et d’éduquer leurs enfants». Ce thème sera développé à propos de l’enseignement religieux. Même si certains pays prévoient quatorze ans, la limite de seize ans a été maintenue, dans le n.º 2, comme «la majorité religieuse», surtout parce que qu’il peut y avoir des abus et il y a des plaintes contre certains nouveaux mouvements religieux.

7. La liberté de s’organiser au sein des églises et la liberté d’exercice public du culte

Bien que les libertés d’organisation au sein des églises et la liberté de pratiquer l’exercice public du culte soient garanties à l’abri du statut des communautés religieuses, il est possible d’avancer, dans la perspective du statut du personnel, qu’elles découlent des articles 45 (Droit de réunion et droit de manifestation) et 46 (Liberté d’association) de la Constitution, qui à son tour sont complétés par les dispositions du Décret-loi 406/74, du 29 août, concernant la « Liberté de réunion et de manifestation» et par le Décret règlementaire, du 24 mars, qui régule l’«utilisation des voies publiques pour la réalisation des activités à caractère sportif, festif ou autres qui puissent affecter la circulation».

Ces libertés sont contemplées dans la LLR. L’article 8, alinéa f), reconnaît positivement le droit individuel de réunion, de manifestation et d’association «selon les convictions propres en matière de religion», ayant pour seules limites celles citées dans lesdits articles 45 et 46 de la Constitution. Quant au contenu négatif, l’article 9, alinéa b), prévoit la liberté d’intégrer, de rester ou de sortir de toute sorte d’association religieuse.

Mais la participation religieuse – en tant que développement de la liberté de religion et de culte – se dédouble encore dans les différents droits contemplés de

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manière autonome dans l’article 10, à savoir : a)- le droit d’adhérer à une église, le droit d’y participer et le droit de recevoir une assistance religieuse ; b)- le droit de se marier et d’être inhumé selon les rites de sa religion ; c)- le droit de célébrer publiquement les festivités religieuses de sa religion.

8. Le droit de sanctifier et de célébrer les fêtes religieuses

En 1952, le Décret-loi 38.596 a procédé à la révision des fériés nationaux, «cherchant d’une part leur ajustement à de grandes dates historiques et d’autre part aux jours Saints que l’Église estime ne pas devoir dispenser». Ainsi ont été considérés fériés officiels les jours sanctifiés par l’Église Catholique : Circoncision (1r janvier); Vendredi Saint; Corps du Christ; Assomption (15 août); La Toussaint (1r novembre); Immaculée Conception (8 décembre) et Noël (25 décembre). Les fonctionnaires publics étaient dispensés de comparaître dans leur lieu de travail la veille de Noël et l’après-midi du Jeudi Saint. Ce régime a été ultérieurement maintenu par le Décret-loi 335/77, du 13 août (applicable aux fonctionnaires et aux agents de l’État).

La LLR réglemente dans l’article 14 la dispense de travail, de cours et d’épreuves pour des raisons religieuses. Il a été prévu dans le n.º 1 que le droit de suspendre le travail dans la journée de repos hebdomadaire, dans les journées de festivités et dans les périodes de temps qui lui sont prescrites par la confession qu’ils professent doit être compatible avec les droits de l’entité patronale et avec le principe de l’égalité. Le système d’assistance aux cours et d’agenda des examens dans les établissements primaires, secondaires et supérieur prévu dans les n.ºs 2 et 3 généralise, avec de légères adaptations, ce qui a été établi dans des diplômes précédents du ministère de l’Éducation.

Le nouveau Concordat fait référence dans l’article 3 aux journées de festivité : la République portugaise reconnaît comme étant des journées de festivités les dimanches (n.º 1); les restantes journées reconnues de festivité catholique sont définies par un accord célébré entre les autorités compétentes de l’Église Catholique et la République portugaise (n.º 2); la République portugaise prendra des mesures, conformément à la loi portugaise, pour permettre aux catholiques de respecter les devoirs religieux dans les journées de festivité (n.º 3).

Le TC a déjà été amené à deux reprises (arrêts 483/03 et 217/07) à juger des recours de constitutionalité quant à la discipline légale des fériés, l’un et l’autre relevaient de la compétence des Régions Autonomes pour décider des fériés régionaux. Dans le dernier recours, la norme qui accorde au 26 décembre un jour férié régional a été jugé non inconstitutionnel, précisément parce qu’il a été convenu que la définition et la fixation des jours fériés régionaux concerne seulement les Régions Autonomes et sera valable dans lesdits lieux à cause de l’existence d’une culture et d’une tradition propres, à caractère religieux et populaire.

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III. La liberté de conscience et de religion dans des situations spéciales

La législation en vigueur jusqu’à l’adoption de la LLR sur l’assistance religieuse en situations spéciales provenait des arts. XVII et XVIII du Concordat de 1940 et se situait dans la perspective des droits de l’Église Catholique.

L’assistance religieuse en situations spéciales, dans la perspective du droit individuel concernant l’exercice de la liberté religieuse, a été prévue dans l’article 13 de la LLR. Les situations spéciales prévues dans le n.º 1 peuvent être regroupées de la manière suivante : la première, est la qualité de membre des forces armées, des forces de sécurité ou de police; la seconde, est la prestation du service militaire ou du service civique; la troisième, est l’hospitalisation, l’internement dans les collèges, dans les instituts ou dans les établissements de santé, d’assistance d’éducation ou similaires; la quatrième, est l’incarcération ou la détention. Le n.º 2 impose un critère matériel à la définition des restrictions concernant l’exercice de la liberté religieuse (qui doivent être indispensables, pour des raisons fonctionnelles ou de sécurité) et il impose une audience préalable du ministre du culte respectif. Enfin, le n.º 3 de l’article 13 fixe comme tâche de l’État de créer, dans le respect du principe de la séparation et conformément au principe de coopération, les conditions adéquates à l’exercice de l’assistance religieuse dans ces institutions publiques.

Le nouveau Concordat contemple l’assistance religieuse concernant ces situations spéciales dans les arts. 17 et 18. La République portugaise garantit par l’article 17 «le libre exercice de la liberté religieuse par l’assistance catholique aux membres des forces armées et de sécurité qui la sollicitent»; la République portugaise garantit par l’article 18 ce même droit aux «personnes qui, pour des raisons d’hospitalisation dans un établissement de santé ou d’assistance, d’internement en milieu d’éducation ou similaires, ou encore de détention en prison ou dans un centre similaire, soient empêchées d’exercer dans des conditions normales, le droit de liberté de religion et souhaiteraient le solliciter».

Rappelons que les diplômes auxquels nous allons faire référence précèdent aussi bien la LLR que le nouveau Concordat et visaient compléter ce qui était alors disposé dans le Concordat de 1940.

1. L’aumônerie militaire

L’assistance religieuse dans les forces armées est réglementée par le Décret-loi 93/91, du 26 février (modifié par le Décret-loi 54/97, du 6 mars) qui a condensé toute la matière en vigueur, ajoutant de nouvelles mesures intégrées au Statut d’Ordinariat militaire.

Elle relève de la compétence du Service d’Assistance Religieuse des Forces Armées (SARFA) (article 1, n.º 1) dans les trois branches des Forces Armées. Elle est prêtée «dans un esprit de liberté de conscience garantit par la loi (article 1, n.º 2) et peut s’étendre «par les ministres en personne […] aux militaires fidèles à des confessions religieuses autres que la catholique» (article 1, n.º 3).

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L’assistance religieuse est exercée «sous l’autorité canonique de l’ordinariat militaire» par différentes ordres d’aumôniers, militaires où civils, ou encore par des diacres permanents (article 2).

Le SARFA développe ses activités selon un «Plan Pastoral» approuvé à par le collège des aumôniers qui est «un document qui indique des objectifs et qui met en évidence des actions concrètes à réaliser».

2. L’aumônerie et l’assistance religieuse dans les établissements pénitentiaires, éducatifs, resocialisants et autres

L’assistance religieuse dans les établissements pénitenciers est réglementée par le Décret-loi 79/83, du 9 février. Dans la mesure où la nouvelle loi organique des services pénitenciers, de 1981, prévoyait expressément l’existence du service d’assistance religieuse dans les établissements pénitenciers, il était au moment question de réglementer plus en détail la situation juridique des assistants religieux de l’Église Catholique qui depuis longtemps prêtaient ce service, et il était également question de définir les règles d’articulation avec les services pénitenciers.

Elle est assurée par des prêtres de l’Église Catholique surnommés «assistants religieux», dont la nomination revient au ministre de la Justice sous la proposition de l’évêque du diocèse local (article 1, n.º 1); ils dépendront hiérarchiquement du directeur de l’établissement et de l’évêque du diocèse (article 2). Leur mission consiste à prêter assistance spirituelle aux détenus catholiques «ayant cependant l’obligation de prêter assistance aux autres détenus qui le sollicitent expressément» (article 4, n.º 1). Ils devront essentiellement «célébrer les offices religieux et apporter aux détenus les aides de sa religion» et réunir chaque semaine pour des conversations et des conférences de groupe (article 5, n.ºs 1 et 2).

Quant à l’assistance religieuse dans des établissements tutélaires de mineurs, elle est réglementée par le Décret-loi 345/85, du 23 août. Le besoin de règlementer par le biais de ce diplôme la situation juridique des assistants religieux de l’Église Catholique qui depuis longtemps exerçaient ces services a été une conséquence de la réforme des services des mineurs.

Les prêtres de l’Église Catholique en question se désignent «assistants religieux». Ils sont nommés par le ministre de la Justice sous la proposition de l’évêque du diocèse local (article 1) et dépendent hiérarchiquement du directeur de l’institution (article 2); ils ont pour mission «prêter assistance morale et spirituelle aux mineurs aussi bien en groupe qu’individuellement, pratiquer les actes qui relèvent de leur fonction et collaborer quand il est nécessaire, avec toute l’équipe éducative» (article 4).

3. L’assistance religieuse aux malades

L’assistance religieuse dans les hôpitaux est réglementée par le Décret règlementaire 58/80, du 10 octobre (modifié par le Décret règlementaire 22/90, du 3 août). Son émission visait compléter ce qui avait été décrété dans le Statut

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hospitalier de 1968 et dans le Règlement général des hôpitaux concernant l’assistance religieuse aux malades hospitalisés ou en traitement ambulatoire dans les hôpitaux, assurée par les aumôniers désignés aux termes du Concordat.

Les aumôniers en question bénéficient du statut de fonctionnaires publics (article 1) et sont nommés par le ministre de la Santé selon une proposition de l’évêque du diocèse respectif (article 2) qui détient le pouvoir disciplinaire (article 7).

Ces aumôniers hospitaliers ont la responsabilité «d’accorder l’assistance religieuse catholique dans les établissements officiels aux malades et au personnel qui y travaille» (article 5, n.º 1). Ils bénéficient des droits suivants : a)- libre accès aux malades pour lesquels ils ont été appelés ; b)- accès à tous les autres malades, sans offense à la liberté de religion ni rupture du droit de chacun à son intimité personnelle ; c)- confidentialité quant aux faits et aux choses dont ils ont pris connaissance en raison de leur ministère (article 6).

B. STATUT DES COMMUNAUTÉS RELIGIEUSES

I. Les communautés religieuses et l’État: modèle général des relations

constitutionnelles

1. La définition constitutionnelle du modèle de relations La Constitution énonce dans l’article 41, n.º 4, le principe de séparation entre

l’État, les églises et les autres communautés religieuses comme étant un droit fondamental, plus concrètement comme l’un des éléments de la liberté de religion. D’autre part, le principe de séparation est également inhérent au principe politique constitutionnel de l’État républicain. En ce sens, la séparation est aussi une garantie non seulement de la laïcité de l’État mais aussi de la liberté de l’église et des confessions religieuses.

Ainsi, le principe de neutralité confessionnelle signifie que l’État n’a pas de religion et ne prend pas parti en matière de religion, de même qu’il ne participe pas officiellement à des actes religieux et ne veille pas au respect des devoirs religieux. Par ailleurs, toute ingérence religieuse est interdite dans l’organisation ou dans le gouvernement de l’État; la réalisation officielle de cérémonies ou d’actes religieux ainsi que l’utilisation de rites ou de symboles religieux ne sont pas légitimes. Néanmoins laïcité ne signifie ni «laïcisme d’État» ni insignifiance, ni mépris ni même ignorance de la religion.

L’article 41, n.º 4, énonce le principe de la séparation entre l’État, les églises et les autres communautés religieuses comme un droit à triple objectif: comme un droit à la séparation ce qui signifie concrètement la non intervention de l’État dans la sphère religieuse; comme un droit à la liberté d’auto-organisation, ce qui signifie autonomie d’organisation; et comme un droit au libre exercice de leurs fonctions et à l’exercice de culte. Le droit à la séparation est ainsi l’autre face des droits à l’autonomie et à la liberté de chaque église et de chaque communauté religieuse; il

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est simultanément plus que cela: la séparation s’affirme à l’égard des églises et autres communautés religieuses comme un ensemble, ce qui signifie que l’État a non seulement l’obligation de ne pas intervenir dans les sujets internes de chacune d’elles, mais qu’il est de manière générale obligé de rester à distance de cette sphère sociale.

L’article 43, n.º 2, confirme tout ça quand il dit que «l’État ne peut déterminer l’éducation et la culture selon de grandes lignes […] religieuses». De même dans le n.º 3 où il est disposé que «l’enseignement public ne sera pas confessionnel». La première de ces dispositions consacre le principe de la neutralité idéologique de l’État, dans le domaine de l’éducation et de la culture, comme l’un des corollaires du principe de la séparation. Le second consacre le principe de la non confessionnalité de l’enseignement public qui est corollaire du principe de séparation appliqué au domaine de l’enseignement public. Or, la jurisprudence constitutionnelle portugaise sur la séparation s’est surtout formée par rapport à cet aspect de la question.

2. Le mode de règlement des rapports entre l’État et les communautés religieuses

En tant qu’élément fondamental du type d’État constitutionnel et en tant que manifestation des principes de l’État de droit démocratique et de l’État républicain, le premier et le dernier mot sur la liberté de conscience, de religion et de culte, et en particulier sur les relations entre l’État, l’Église et les communautés religieuses reviennent, de nos jours, à la Constitution.

Les normes constitutionnelles respectives (est surtout en cause l’article 41, dans toutes ses dispositions) bénéficient du régime spécifique des droits, des libertés et des garanties ce qui signifie que la liberté de conscience, de religion, de culte, et en particulier la séparation entre l’État et les Églises, bénéficient d’un précepte directement applicable et obligatoire pour les entités publiques et privées (article 18, n.º 1) et qu’il est sous réserve de loi (article 18, n.º 2). Les normes respectives sont même une des limites matérielles de révision constitutionnelle et la limite concernant la séparation des Églises et de l’État est autonomisée dans l’article 288, alinéa c), de la Constitution.

En 2001, une nouvelle LLR (Loi nº 16/2001, du 22 juin) a été approuvée par le Parlement. Même si cette loi était justifiée par le besoin de réforme du droit des religions au Portugal, elle ne s’est pas limitée à être une simple déclaration de principes ni a souhaité être un code du droit des religions. Elle présentait plutôt une dimension qui permettrait son application immédiate et elle se rapprochait du Concordat alors en vigueur, ainsi que des régimes espagnol, allemand et italien. Dans le polémique article 58 sur la législation applicable à l’Église Catholique, il était prévu de préserver le Concordat de 1940 et le Protocole Additionnel de 1975 et aussi la restante législation applicable à l’Église Catholique.

En considérant que la discipline juridique en matière religieuse est devenue particulièrement assujettie aux principes constitutionnels de l’égalité, de la liberté

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religieuse et de la séparation des pouvoirs, certains auteurs ont soutenu que la Constitution ne prévoyait de célébrer aucun type d’accord avec les différentes confessions religieuses et que la plausibilité du régime Concordataire, dans son interprétation traditionnelle, a été «sérieusement compromise». Toutefois, il est possible de vérifier partout un renouvellement de la réglementation des relations entre l’État et les communautés religieuses et, aussi, de célébrer d’accords religieux, qui a été consolidée en dehors du contexte des droits internes.

Quoi qu’il en soit, le Concordat de 2004 entre la République portugaise et le Saint-Siège est indiscutablement un traité international et il traduit la reconnaissance, par l’État portugais, de la condition de sujet de droit international du Saint-Siège.

Ainsi, la République portugaise reconnaît explicitement non seulement la personnalité juridique de l’Église Catholique et le droit pour cette institution d’exercer sa mission apostolique avec la garantie de l’exercice public de ses activités, mais elle reconnaît également la liberté religieuse de l’Église elle-même, de ses fidèles et des personnes juridiques ainsi constituées aux termes du droit canonique, notamment dans les domaines de la conscience, du culte, de la réunion et de l’association, de l’expression publique, de l’enseignement et de l’action caritative.

En outre, la LLR a expressément prévu (article 45 à article 51) la possibilité de célébrer, à l’initiative des églises, des communautés religieuse implantées dans le pays ou encore des fédérations, des accords entre l’État, les Régions Autonomes et les collectivités locales ayant pour objet des sujets d’intérêt communs. Il convient de noter que contrairement aux Concordats, il s’agit d’accords de droit interne et il semble nécessaire de distinguer avant tout entre les accords sous forme de loi (ou accords-loi) et les accords stricto sensu (accords-contrat).

3. Le principe de l’égalité des religions

Le principe d’égalité est contemplé dans la Constitution (article13) de manière positive en termes d’égalité au regard de la loi, et de manière négative, en termes d’interdiction de discrimination aussi bien positive que négative, en raison de la religion, parmi d’autres raisons de discrimination également interdites. La discrimination négative en raison de la religion est encore interdite dans l’article 41, n.º 2.

Par ailleurs, vu que l’article 12, n.º 2, prévoit que «les personnes morales jouissent des droits et sont astreintes aux devoirs qui sont compatibles avec leur nature» et l’article 41, n.ºs 4 et 5, reconnaît les droits collectifs essentiels aux églises et autres communautés religieuses, il faut donc admettre que le principe d’égalité est également valable pour les églises et les communautés religieuses.

Enfin, le principe d’égalité doit également être appliqué à propos des fins religieuses et des activités non religieuses des églises et des autres communautés religieuses énoncés dans les arts. 21 et 27 de la LLR, respectivement, et en ce qui concerne le système fiscal en particulier.

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En résumé, le traitement constitutionnel de l’égalité religieuse, en faisant référence à la terminologie générale «églises», «communautés religieuses» et «confessions religieuses», exprime un nouveau paradigme dans le constitutionnalisme portugais.

II. La liberté de la création et la l’activité des communautés religieuses

1. La création d’églises et de communautés religieuses

Pour la LLR, les églises et les communautés religieuses sont les titulaires collectifs de la liberté religieuse et sont des concepts synonymes. Dans la définition de l’article 20, il est question de «communautés sociales organisées et durables dans lesquelles les croyants peuvent réaliser toutes les fins religieuses qui leur sont proposées par la confession respective». À son tour, le concept de «confession» désigne les croyants de la même foi ou credo, ou encore le contenu de la croyance religieuse qui se confesse ou professe.

Sont exclues de cette notion, d’une part, les associations temporaires de personnes à des fins religieuses et, d’autre part, les associations même durables, de personnes n’ayant pas pour objet la réalisation de toutes les fins religieuses proposées à la généralité de leurs croyants par la confession qu’ils professent (c’est le cas des «congrégations religieuses»); sont également exclues les associations qui visent réaliser seulement quelques-uns des devoirs religieux de leurs membres, surtout dans des domaines pas spécifiquement religieux, tel que la bienfaisance et l’éducation. La LLR a choisi de ne pas utiliser le concept de « secte». Elle prévoit plutôt une Commission de la Liberté Religieuse à qui reviendra l’étude de «l’évolution des mouvements religieux au Portugal, et notamment réunir et maintenir l’information actualisée sur les nouveaux mouvements religieux, ainsi que fournir l’information scientifique et statistique nécessaire aux services, aux institutions et aux personnes intéressées et publier un rapport annuel sur le sujet» [article 54, alinéa e)].

L’article 22, n.º 1, reconnaît le principe de liberté de l’organisation des églises et des communautés religieuses. Étant libres dans leur organisation, ces organismes peuvent disposer avec autonomie de leur organique et de leurs titulaires [alinéas a) et b)] sur les droits et les devoirs religieux des croyants [alinéa c)], sur l’adhésion ou la participation aux fédérations ou aux associations interconfessionnelles [alinéa d)] et encore créer des instituts, des églises et des communautés au niveau régional (n.º 3).

L’article 10 du Concordat reconnaît expressément et de manière générale que «au Portugal, l’Église catholique peut s’organiser librement en harmonie avec les normes du Droit canonique et constituer, modifier, et supprimer des personnes juridiques canoniques», tandis qu’à son tour l’article 9 avait déjà fait référence à la liberté de création de juridictions ecclésiastiques.

En résumé, le principe de liberté d’organisation, d’indépendance des églises et des confessions religieuses garantit son statut privé, ainsi que la non ingérence de

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l’État dans l’organisation des églises, dans l’exercice de ses fonctions et l’exercice de culte; les pouvoirs publics ne peuvent pas intervenir dans ces domaines à moins que par voie normative ils règlementent l’organisation et l’association privée, le droit de réunir et de manifester ainsi que d’autres droits instrumentaux de la liberté de culte. 2. La reconnaissance par l’État de l’existence des églises et des communautés religieuses

Le statut juridique des églises et des communautés religieuses est compris dans le Chapitre IV de la LLR. Deux modèles sont essentiellement prévus : celui des personnes collectives religieuses (article 33 à article 36) et celui des églises et des communautés implantées («radicadas») dans le pays (article 37).

Le premier modèle s’applique aux églises et autres communautés religieuses (énoncées dans les quatre alinéas de l’article 33) qui acquièrent personnalité juridique suite à leur inscription au Registre des Personnes Collectives Religieuses (RPCR). Les conditions d’inscription au RCPR figurent dans les articles 34 et 35, dont le premier se rapporte aux aspects formels vérifiables par les statuts et autres documents, tandis que l’article 35 indique les cas où il faut encore la preuve documentaire aussi bien des principes généraux de la doctrine et de la description générale de la pratique religieuse et des actes de culte que de la présence sociale organisée, de la pratique religieuse et de la durée au Portugal.

Selon le «Rapport préliminaire» du projet de la LLR, concernant le statut des églises et des communautés religieuses, il était prévu quatre situations possibles dépendantes de la réalité sociale et de la volonté des personnes.

La première concerne tout groupe de personnes qui s’associe et réunit à des fins religieuses, sans avoir besoin de personnalité juridique pour avoir l’usufruit des droits collectifs et essentiels de liberté religieuse. Il renvoie avant tout au droit intégrant le contenu positif de liberté religieuse, prévu dans l’article 8, alinéa c), de la LLR.

La deuxième situation comprend les personnes collectives à des fins religieuses non catholiques qui avaient le statut d’associations civiles ou étaient inscrites dans le registre correspondant du ministère de la Justice.

La troisième situation est celle des églises et des communautés religieuses qui font preuve de leur existence au Portugal, c’est-à-dire une présence sociale organisée et pratique religieuse dans le pays et encore leur doctrine, leur organisation interne personnelle et patrimoniale; elles pourront s’inscrire en tant que personnes collectives religieuses et faire inscrire leurs instituts ou organisations religieuses et fédérations.

Ces deuxième et troisième situations s’intègrent dans le premier «modèle statuaire» d’acquisition de la personnalité juridique collective religieuse par le biais de l’inscription au registre correspondant; d’un autre côté, l’article 63 réglemente le régime transitoire correspondant (antérieur à la nouvelle LLR et en effet conditionné essentiellement par la situation antérieure au 25 avril 1974).

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Enfin, dans la quatrième situation se trouvent les églises et les communautés religieuses inscrites qui offrent des garanties de durée par le nombre de leurs croyants et parce qu’elles ont plus de trente ans d’existence organisée dans le pays – ou encore parce qu’elles ont été fondées à l’étranger depuis plus de 60 ans – qui seront considérées établies dans le pays («radicadas»). Elles ont un statut spécial prévu dans l’article 37 de la LLR. Leur qualification revient au membre du gouvernement compétent en raison de la matière et après que celui-ci ait entendu la Commission de la Liberté Religieuse. Son régime rend possible certaines formes de collaboration avec l’État. Étant donné qu’il n’y a aucune référence au niveau national, régional ou local des églises ou des communautés qui aspirent au statut, il semble de conclure tendanciellement qu’il conduit à l’exclusion des entités qui ont uniquement un caractère géographique restreint. Enfin, la disposition complémentaire et transitoire de l’article 67 indique le nombre d’années de présence sociale obligatoires pour demander le certificat d’ «établissement dans le pays». 3. Le contrôle exercé par l’État sur l’activité des communautés religieuses

La LLR ne prévoit pas l’ingérence de l’État sur l’activité des églises et autres communautés religieuses, elle définit plutôt la liberté de l’exercice de leurs fonctions religieuses et de culte.

Ainsi, selon l’article 23 et sans l’intervention de l’État ou de tiers, elles peuvent :

- Exercer les actes de culte, privé ou public, sans préjudice des exigences de la police et de la circulation [alinéa a)] ;

- Etablir des lieux de culte et de réunion à des fins religieuses [alinéa b)] ; - Enseigner la doctrine dans la forme et par les personnes autorisées [alinéa

c)] ; - Répandre la confession et lui trouver de nouveaux croyants [alinéa d)] ; - Assister religieusement les membres qui en font partie [alinéa e)] ; - Communiquer et publier des actes sur la religion et le culte [alinéa f)] ; - Etre en contact et communiquer avec les organisations de la même

confession ou de confession différente sur le territoire national ou à l’étranger [alinéa g)] ;

- Désigner et former leurs ministres [alinéa h)] ; - Fonder des séminaires ou autre établissement de formation et de culture

religieuse [alinéa i)] ; Le Concordat comprend plusieurs garanties prêtées par la République

portugaise, depuis l’exercice public et libre des activités exercées par l’Église Catholique (article 2, n.º 1) jusqu’à la protection de son patrimoine culturel.

L’utilisation des espaces destinés au culte par les confessions religieuses est, toutefois, un domaine passible d’entraves administratives.

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4. Les communautés religieuses et la liberté d’investiture des fonctions ecclésiastiques

Comme il a été dit précédemment, concernant la liberté d’organisation des églises et autres communautés religieuses, à l’abri de l’article 22, n.º 1, alinéa b), de la LLR, elles disposent d’autonomie dans la désignation, les fonctions et les pouvoirs de leurs représentants, de leurs ministres, de leurs missionnaires et de leurs auxiliaires religieux.

5. L’État et le droit interne des communautés religieuses

Le TC a une seule fois dû apprécier les relations entre l’ordre juridique national et l’ordre juridique canonique. Dans l’arrêt 268/04 il n’a pas jugé inconstitutionnelles les normes qui attribuent aux tribunaux portugais la compétence exclusive pour juger des procédures de revendication de biens patrimoniaux de l’Église Catholique, proposées par une personne juridique liée à l’Église Catholique contre une autre personne juridique également liée à l’Église Catholique.

Il était question de savoir si, en dehors des principes de la congruence structurelle et de la pluralité des ordres juridiques, il y aurait violation des principes de séparation entre l’État et l’Église Catholique et de la non confessionnalité de l’État. Le tribunal a décidé que, d’une part, cela ne représentait aucune rupture de l’indifférence ou de la neutralité confessionnelle de l’État. Il a également décidé que cela ne violait ni le principe de liberté d’organisation et d’indépendance des églises et des confessions religieuses, ni l’attribution de la compétence exclusive aux tribunaux portugais pour l’appréciation de procédures de revendication de biens patrimoniaux de l’Église Catholique. D’autre part, le tribunal a décidé que même si le droit canonique est applicable à ces procédures, cela ne signifie pas pour autant qu’il y a perméabilité des organes de souveraineté à l’Église, ni invasion du domaine de l’Église Catholique, ni rupture de la séparation entre l’État et l’Église Catholique, ni interférence dans l’organisation judiciaire de l’Église Catholique.

III. La coopération de l’État et des communautés religieuses

Le principe de coopération n’est pas explicitement envisagé par la Constitution

et n’était pas autonome dans le projet initial de la LLR. Mais il fait actuellement partie de l’article 5 de la LLR. Quant au nouveau Concordat, il découle également de plusieurs dispositions et il est surtout basé sur une vision (innovatrice par rapport au Concordat de 1940) qui le met au service de la dignité de la personne humaine, de la justice et de la paix et réglementée essentiellement par le bien commun d’une part, et d’autre part par les droits de l’Homme.

La question essentielle et polémique devient, sans aucun doute, celle de l’aide financière et en particulier fiscale de l’État. C’était (et cela le reste), le domaine

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dans lequel la différence de traitement entre l’Église Catholique et les autres confessions est la plus manifeste.

La LLR règlemente la fiscalité des églises et autres communautés religieuses dans les articles 31 et 32 (auxquels les articles 65 à 68 suppléent d’une législation complémentaire et transitoire). L’article 31 prévoit les prestations exonérées d’impôts et qui en résumé sont les prestations des croyants et les donations à des fins religieuses, ainsi que les collectes publiques et la distribution de publications. L’article 32 prévoit les bénéfices fiscaux, en incluant d’une part certaines exonérations d’impôts ou certaines contributions générales, régionales ou locales (n.ºs 1 et 2). L’article 32 prévoit également des déductions à la collecte sur les donations accordées par des personnes singulières aux personnes collectives religieuses inscrites (n.º 3) et, encore, la possibilité pour le contribuable de leur accorder un quota équivalent à 0,5% du montant de ses retenues fiscales (n.º 4).

Quant au nouveau Concordat, surtout en raison du principe d’égalité, il a changé de manière significative le statut fiscal des institutions catholiques et des prêtres. Les dispositions fiscales du nouveau Concordat se trouvent essentiellement dans l’article 26 dont la principale source est la LLR. Ledit article comprend également des exclusions tributaires (ou situations de non assujettissement tributaire) ainsi que des bénéfices fiscaux dans la modalité des exonérations.

Les coïncidences et les divergences des deux régimes fiscaux sont les suivantes :

a)- coïncidence totale à l’égard du régime tributaire des prestations à des fins religieuses;

b)- coïncidence presque totale à l’égard du régime tributaire des personnes collectives religieuses; c)- divergence à l’égard du système de perception des recettes fiscales, lequel, pour être applicable aux églises et aux communautés religieuses établies dans le pays dépend d’une pétition alors que l’Église Catholique a le droit d’accéder à ce système de perception sur base d’accords établis avec les organes compétents de la République; d)- divergence à l’égard du régime des ministres de culte, concernant les bénéfices accordés aux ecclésiastiques catholiques.

Pour finir, il est possible d’élaborer la relation de législation ordinaire et réglementaire suivante, sur la fiscalité des activités religieuses : 1) Sécurité sociale des ministres des religions; 2) Restitution de la TVA à l’Église Catholique et aux institutions privées de solidarité sociale; 3) Procédés pour des effets de bénéfice de la consignation d’une partie des impôts sur les revenus liquidés; 4) Statut de mécénat.

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IV. Les communautés religieuses, l’enseignement et l’instruction religieuse

Les questions de constitutionnalité concernant l’enseignement de la religion catholique dans les écoles publiques ont été appréciées par deux arrêts du TC.

Ainsi, dans l’arrêt 423/87 le TC a fondé sa décision sur les arguments suivants : a)- la Constitution empêche toute orientation religieuse de l’enseignement public; elle empêche toute distinction injustifiée entre les églises et les croyants des différentes religions ainsi qu’elle interdit aux écoles publiques de fonctionner comme des agents d’enseignement religieux, mais elle n’interdit ni empêche que l’État puisse accorder aux différentes églises, dans des conditions d’égalité, la possibilité d’administrer l’enseignement de la religion dans les écoles publiques; b)- la norme qui impose l’enseignement de la religion et de morale catholiques aux élèves dont les parents n’ont pas déclaré expressément une volonté contraire contrarie le principe de liberté religieuse ; c)- à l’État revient le droit de permettre aux différentes confessions l’enseignement des religions respectives dans les écoles publiques aux élèves qui manifesteront expressément la volonté. Le fait de l’avoir fait uniquement envers la religion catholique ne viole en rien le principe de l’égalité.

Ensuite, dans l’arrêt 174/93 (prononcé par la «seconde composition» du Tribunal et aussi avec une décision controversée), la question « nouvelle» sur laquelle le TC a dû se prononcer a été celle de la légitimité constitutionnelle d’attribuer à l’instituteur de la classe (enseignant unique) l’enseignement de religion et morale catholiques dans les écoles primaires. En résume:

a)- le fait que l’État doive observer une règle de séparation à l’égard des églises et qu’il doive observer une posture de a-confessionnalité à l’égard de l’enseignement public, ne signifie pas qu’il ne puisse – ni doive – collaborer avec les églises dans l’administration de l’enseignement religieux dans les écoles publiques; b)- il revient à l’État le devoir de proportionner à l’Église Catholique l’enseignement de la discipline de religion et morale catholiques dans les écoles primaires aux élèves dont les parents ou le tuteur en manifestent expressément la volonté. c)- dans les écoles primaires, quand l’enseignement de religion et morale catholiques sera administré par l’instituteur «unique» de chaque classe ce sera considéré un cas de «double représentation» dans la personne de ce dernier, ce qui n’est pas incompatible avec le principe de séparation entre les églises et l’État.

Ces deux arrêts du TC correspondent, dans leur contexte, à l’appréciation de la législation approuvée dans les années quatre-vingt, par laquelle le IX Gouvernement constitutionnel portugais, ainsi que les X et XI Gouvernements, ont réglementé l’enseignement de la discipline de religion et morale. Les diplômes suivants ont ainsi été approuvés :

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a)- le Décret-loi 323/83, du 5 juillet (modifié en fonction du dit arrêt 423/87), a systématisé et complété le précepte du Concordat de 1940 concernant l’enseignement de la discipline de religion et morale catholique dans les écoles publiques des différents niveaux d’enseignement (préparatoire, primaire et secondaire) ; b)- le règlement du gouvernement (Portaria) 333/86, du 2 juillet, qui a établi, dans le développement du Décret-loi précédent, les normes adéquates à l’enseignement de la discipline de religion et morale catholique dans les établissements d’enseignement primaire (comme nous l’avons vu, non déclaré inconstitutionnelle par l’arrêt 174/93) ; c)- le règlement du gouvernement (Portaria) nº 831/87, du 16 octobre, qui a réglementé la formation des enseignants pour l’enseignement d’éducation morale et religion catholiques (également non déclarée inconstitutionnelle par l’arrêt 174/93) ; d)- le règlement du gouvernement (Portaria) 344-A/88, du 31 mai, qui (face à la décision de l’arrêt 423/87) a modifié les conditions d’inscription dans la discipline de religion et morale catholiques exigeant dorénavant une déclaration exprimant la volonté à fréquenter les cours ; e)- le Décret-loi 407/89, du 16 novembre, qui a créé dans les écoles d’enseignement primaire et dans les collèges des postes de cadre pour les enseignants de la discipline de religion et morale catholique.

Ce n’est qu’à la fin de la décennie suivante - même si après un règlement du gouvernement du 16 novembre de 1989 l’enseignement de la discipline d’éducation morale et religieuse Évangélique était prévue en régime d’expérience pédagogique dans les établissements d’enseignement primaire et secondaire – le XIII Gouvernement constitutionnel a approuvé, en régime de permanence et de généralisation, l’enseignement de la discipline d’éducation morale et religieuse dans les écoles primaires et secondaires (Décret-loi 329/89, du 2 novembre). En 2001, les Décrets-loi 6/2001 et 7/2001 ont approuvé la réorganisation scolaire de l’enseignement primaire et la révision du cours de l’enseignement secondaire. Alors, l’éducation morale et religieuse, jusque-là facultative, a été désormais considérée comme un simple projet et activité qui contribue à la formation personnelle et sociale des élèves que les écoles peuvent développer dans le contexte de leur autonomie. Cette réorganisation scolaire a conduit à la création de la « vingtième heure d’enseignement», hors horaire scolaire.

Or, aussi bien la nouvelle LLR que le nouveau Concordat se sont limités à confirmer les régimes préexistants.

Ainsi, l’article 24 de la LLR réglemente l’enseignement religieux dans les écoles et l’intègre dans les droits collectifs de liberté religieuse. Dans les écoles publiques d’enseignement primaire et d’enseignement secondaire l’enseignement religieux doit être sollicité au membre du gouvernement compétent, en raison de la matière, par les églises et les communautés religieuses (n.º 1); l’éducation morale et religieuse est optionnelle et non alternative (n.º 2); le fonctionnement des cours

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dépend d’un nombre minimum d’élèves (n.º 3); l’élève ou le responsable d’éducation doit manifester positivement et par écrit sa volonté à assister aux cours (n.º 3); règle générale, les enseignants ne pourront pas cumuler avec une autre discipline et seront nommés selon un accord établi avec les églises et les autres communautés (n.º 4); la formation des enseignants, l’élaboration des programmes et l’approbation du matériel didactique relève de la compétence des églises et des autres communautés (n.º 5).

Les principes généraux de ce système d’enseignement religieux dans les écoles publiques (qui, en tant que tel et en raison de la modification apportée par l’article 58 de la LLR, ne s’appliquera pas à l’Église Catholique) ont été par la suite inclus dans le nouveau Concordat où ils ont été complétés dans l’article 19 (correspondant donc à l’une des modifications les plus significatives concernant le Concordat de 1940).

Le nouveau Concordat contient deux autres articles concernant l’enseignement – les articles 20 et 21.

Selon l’article 20, la République portugaise reconnaît à l’Église Catholique le droit de constituer des séminaires et autres établissements de formation et de culture ecclésiastique dont le régime interne n’est pas sujet au contrôle étatique; la reconnaissance des effets civils des études respectives ainsi que les degrés et les titres sont réglementés par le droit portugais sans aucune forme de discrimination à l’égard des études de même nature.

L’article 21 garantit à l’Église Catholique, en accord avec le droit portugais, le droit d’établir et d’orienter des écoles de tous les niveaux d’enseignement et de formation sans être assujettie à une quelconque forme de discrimination. Le n.º 3 de cet article définit le statut général de l’Université Catholique érigée en 1967 et reconnue par l’État portugais le 15 juillet 1971, qui «développe son activité conformément au droit portugais, aux termes des numéros précédents, en respectant sa spécificité institutionnelle».

Il semble découler de la législation ordinaire que l’Université Catholique bénéficie d’un statut spécial, plus favorable que celui des institutions de l’enseignement supérieur particulier et coopératif.

V. Restitution du patrimoine

La restitution des biens qui avaient été expropriés à l’Église Catholique a été au

centre du Concordat de 1940. Le régime alors accordé se trouvait dans les articles VI et VII qu’il est possible de synthétiser :

a)- reconnaissance du droit de propriété de l’Église sur ses biens, mobiliers et immobiliers, qui lui avaient appartenu auparavant et qui étaient encore en possession de l’État; b)- régime juridique spécial pour les biens immobiliers classés monuments nationaux ou d’intérêt public - que l’Église peut utiliser à caractère permanent;

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c)- droit d’utilisation par l’Église des biens mobiliers destinés au culte et qui se trouvent dans des musées publics; d)- interdiction, en principe, de démolir ou de destiner à d’autres fins, tout temple, bâtiment, dépendance ou objet de culte catholique; e)- audition de l’autorité ecclésiastique en cas d’expropriation en raison

d’une utilité publique. La Loi du Patrimoine Culturel, de 1985, n’a pas rendu autonome le traitement

du patrimoine ecclésiastique, de même qu’elle ne faisait aucune référence au Concordat ni établissait des règles spécifiques aux biens du patrimoine culturel appartenant à l’Église Catholique; celle-ci a demandé sa reformulation, ce qui ne lui a pas été accordé.

Cependant, le nouveau Concordat de 2004 maintient dans son intégralité non seulement le régime consacré antérieurement, mais il va bien au-delà en établissant une nouvelle réglementation du patrimoine culturel de l’Église Catholique.

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Valentina BĂRBĂŢEANU, assitant-magistrate and

Doina SULIMAN, assistant-magistrate in-chief Constitutional Court of Romania


I. Essence and content of freedom of religion (faith) and freedom of conscience

1. Freedom of conscience

In a broad sense, freedom of conscience means one’s possibility to freely form, express and support a certain conception on any of the domains to which human thought has access, according to his/her own reason and belief.

Freedom of religion means one’s ability to have his/her own idea on the relationship between humans and divinity, to believe or not to believe in one God, or in several gods, not to believe in any of them or to be a free-thinker.

The Constitution of Romania guarantees, under Article 29, the freedom of conscience, which it approaches from a broad perspective, as a very complex freedom, including, besides the freedom of religious beliefs, freedom of thought and freedom of opinion. Likewise, it states that these three freedoms „may not be restricted in any form whatsoever.”

The freedom of religion is enshrined in the Constitution of Romania as a fundamental human right, which necessarily requires the lack of any restrictions related to the option for a certain faith.

2. Freedom of religious cult In order to render effective the freedom of religion, the law must also guarantee

the freedom of cult. It represents the public exercise of a religion, the external form of expression thereof, and in lack of an exteriorisation, the religion remains the intimate representation of a hope.

Each individual belonging to a denomination may express his/her faith, may participate to the religious service or he/she may fulfil the religious ritual, and the denominations and the religious associations are free to organise the reunions they deem fit.

The Constitution of Romania is categorical, stating that „No one may be compelled to embrace an opinion or religion contrary to his own convictions”. Implicitly, according to the Constitution no one may be restricted in expressing his/her own beliefs and religious convictions.

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Likewise, Law no.489/2006 on the freedom of religion and the general status of denominations, in the spirit of the international treaties and covenants on fundamental human rights to which Romania is party, defines the freedom of religion as follows: “Freedom of religion includes the right of every individual to have or embrace a religion, to manifest it individually or collectively, in public or in private, through practices and rituals specific to that denomination, including through religious education, as well as the freedom to preserve or change one’s religion.”

Yet the freedom of conscience and the freedom of religious beliefs are not absolute freedoms, as they must be manifested in a spirit of tolerance and respect towards the other people, regardless of their beliefs.

In this respect, Law no.489/2006 provides that „The freedom to manifest one’s religion cannot be subject to any restrictions other than those required under the law and which are necessary in a democratic society for the protection of the public, of public order, health or morality, or for the protection of fundamental human rights and liberties.”

According to Law no.489/2006, any individual shall have the right to manifest their religious beliefs collectively, both within religious structures with a distinct legal entity status and within religious structures without a distinct legal entity status.

3. Subjects of freedom of religion and conscience The conscience is specific to the individual, therefore the individual is the only

one entitled to freedom of conscience, not also the legal entities. The Romanian State observes and guarantees the freedom of thought, of

conscience and of religion of any person within the territory of Romania, therefore not only to Romanian citizens, but also to alien and stateless citizens, during all their staying on the territory of the country.

The beneficiaries of religious freedoms are natural entities who have legal capacity.

The religion of a child who has turned 14 years of age cannot be changed without his/her agreement; a child who has turned 16 year of age shall have the right to choose his/her own religion

Legal entities – denominations, churches, monasteries, religious associations, congregations, monastic orders, and so on – are free to practice a cult with all the rights and liberties arising from the free exercise thereof.

As collective law subjects, they may appear before the courts of law for the protection of their rights and freedoms and, also, they may represent their followers, as concerns their religious rights and liberties aggrieved by the public authorities.

Through several decisions, the Constitutional Court has confirmed the right of the administrative structures of churches and denominations to appear before the courts of law.

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4. Freedom of the institutional Church The Constitution of Romania stipulates that the denominations are autonomous

in relation with the State. This means complete independence, but also mutual observance of powers. The

State does not interfere with the internal life of denominations and forbids any interference thereof with the sphere of its powers.

In this framework, there are areas of contact and cooperation. A State governed by the rule of law involves cordial relationships and cooperation between State and denominations in tolerance and mutual respect.

Denominations’ autonomy does not exclude State’s voluntary intervention in favour of denominations so that they may practice religion or the State’s right to acknowledge or not a certain denomination, without disfavouring other denominations.

The existence of denominations is explicitly enshrined at constitutional level, Article 29.3 stipulating that these are free and organized in accordance with their own statutory rules, under the conditions set out by the law.

The denominations acquire legal personality as from the setting up thereof, through law.

The religious structures with a distinct legal entity status are religious denominations and associations, and the religious structures without a distinct legal entity status are religious groups.

Religious communities shall be free to choose the association structure within which they wish to manifest their religion: denomination, religious association or religious group.

The denominations may set up and organise their own structures, according to their statutory rules.

The patrimonial rights of denominations and religious communities over the churches, schools, buildings with other destinations, lands, religious objects, as well as over their entire patrimony are guaranteed and protected by the Constitution and by the law.

The holy goods, respectively those granted directly and exclusively to the denomination, established according to their own statutory rules according to the tradition and practice of each denomination, acquired with a title, are unenforceable and imprescriptible and these can be alienated only under the statutory rules of each denomination. This, because they are for the general public-utility. Under this category we can enumerate churches, monasteries, priests houses, educational units, denominations’ local and central bodies dioceses seats, cemeteries, other holy goods of denominations.

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II. Protection of religious values as fundamental human rights in constitutional jurisdiction

1. Protection of religious values in positive law Beside the protection ensured through the Constitution’s provisions, religious

values are protected also by the penal law. Thus, are considered crimes the impeding or disturbing of the free exertion of a

denomination. The same punishment is enforced for forcing a person, by constraint, to participate in the religious services of a denomination or to perform a religious act related to the exertion of a denomination. Moreover, profanation of a tomb, a monument, a funeral urn or a body is punished under the Criminal Code (Article 318 & 319).

Likewise, Article 13 of the Law no.489/2006 states that relationships between denominations, as well as between religious associations and groups shall be based on mutual understanding and respect and that any form, means, act or action of religious defamation and antagonism, as well as public offending of religious symbols are forbidden in Romania.

2. Protection of believers against religious discrimination is enshrined as a

principle in the Constitution (Article 4.2, 29.1 and 30.6) and settled by Law no.489/2006, Article 1.2.

The State ensures a climate of understanding, tolerance and mutual respect. In the same time, it prohibits all the discriminatory actions and excludes any restriction or preference based on religion or belief.

That is why the instigation to discrimination has been incriminated in the Criminal Code and the Government has adopted an Urgency Ordinance on the prevention and sanctioning all types of discrimination.

3. Religious justification of certain professional pragmatism The clerks’ subsistence expenditures shall be supported mainly from the

churches incomes, donations, fees, but also partially from the State budget, where their own funds are not sufficient.

The State-subsidisation is justified, on one hand, by the fact that the priests fulfil a public –interest office, and, on the other hand, by the fact that the State has taken all the assets of the monasteries without constituting a fund for the Church. In the same time, fees and tax exemption is justified by the public utility of the Church (charity and humanitarian actions, poor, widows and orphans support).

It is generally accepted that the priest’s office is incompatible with the military obligations, with the lawyer’s profession or with the trading activities, with the participation to political fight or with any other activities which could prejudice the office carried out within the denomination.

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4. The right to manifest religious feelings is granted under the fore-mentioned Article 29.1 of Constitution and Article 2.2 of Law no.489/2006.

5. Protection of religious feelings is materialized through the followings: - religious symbols are respected and can be used in public places, in public

institutions, in courts or in schools - the immunity of the churches, chapels, monasteries, cemeteries and other cult

places is granted under the law and the local authorities have to ensure its appropriate usage.

- mass media respects people’s religious feelings and frequently reports the denominations activities, highlighting their impact in society.

6. Protection of religious values in family relationships a) The Constitution establishes that religious wedding may be celebrated only

after civil marriage. That is why, religious authorities must firstly ascertain if the couple has entered the civil marriage, according to the law.

b) The celebration of the religious wedding does not produce direct legal effects and has only moral value. Nevertheless, the acknowledgement of the religious wedding has forced the courts to accept some indirect effects, such as the partition of assets acquired during such marriage.

c) Some of the grounds of nullity or annulment of the religious marriage – attempt of murder of the spouse, life sentence, adultery or bigamy, mental diseases – are the same as in the civil law, but the legal divorce procedure is required.

d) According to Article 29.6 of the Constitution, „parents or legal tutors are entitled to ensure for children under their responsibility the upbringing which accords with their own convictions”.

The Constitutional Court has adjudicated in the meaning that the provisions of the Education Law which include religion within the mandatory school subjects, are constitutional only if this right is observed.

7. Freedom of organizing communities at church and of public worship is a

consequence of the freedom of assembly, which is garanteed under art.39 of the Constitution.

8. Right to observe and celebrate church holidays The main religious holidays of the recognized denominations are settled by laws

and Government decisions. Some of them are declared days free of work. The church holidays are celebrated in total freedom, according to the religious

standards and requirements of every denomination.

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III. Freedom of conscience and religion under special circumstances Religious cults enjoy support from the State in what concerns the facilitation of

religious assistance in the army, in hospitals, prisons, homes and orphanages. 1. religious assistance has been organized for the military staff, through a

protocol signed by the Ministry of National Defence and the main denominations – Orthodox Church and Greco-Catholic Church– taking into account the specificity and general exigencies of the military system, as well as the particularities of the military units.

2. religious assistance is also insured, on a regular basis, in penitentiaries, reformatory units and reintegration units, in basis of a protocol signed with the Ministry of Justice. In penitentiaries and reformatory units, priests offer religious assistance in basis of an employment contract, and in other re-education units, religious assistance is assured by the priests of the local constituencies.

3. religious assistance in case of hospital patients is assured in basis of a protocol signed with the Ministry of Health.

IV. Data Protection and Data of religious demography

The processing of personal data concerning religious beliefs or membership of

denominations is forbidden, except for the case of a national census as sanctioned under the law or the situation where the concerned individual has provided explicit agreement to that effect.

It is also forbidden to compel an individual to declare his/her religion, in any relationship with public authorities or private-law legal entities.


I. Religious communities vs. the state

1. Constitutional definition of the relations model Even if the Constitution does not specifically declares the lay State, this feature

can be deduced from the general provisions regarding the relationships between the State and religious communities. The Law no 489/2006 clarifies this problem and states that there is no State Religion in Romania and the State is neutral towards any religious persuasion or atheistic ideology.

The Constitution does not confer the character of national church to any of the denominations. Although, the Law no. 489/2006 acknowledges that the Romanian State recognizes the important role of the Romanian Orthodox Church and that of other churches and denominations, mainly the spiritual, educational, social-charitable, cultural role thereof. The denominations are considered social partners and factors of the social peace.

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The relationships between the Romanian State and denominations are based on their autonomy, neutrality, equidistance and non-discrimination, as well as on the mutual cooperation in areas of common interest.

2. Form of regulating relations between the state and religious communities The Law no.489/2006 regulates the general status o denominations. Due to the

importance of the domain, it has been adopted as an organic law and this is why it has a special place in the legal system’s hierarchy.

There are also other normative acts that regulate different aspects related to the relations between the state and religious communities: the Law of Education ensures the freedom of religious education; the Law on the status of teachers (including those who teach religion as a school subject); an ordinance regulates the State’s financial support of the denominations; the law regarding the denominations’ exclusive right to manufacture and market religious objects; the law on the organization and activity of the military clergy; the law that settles rules concerning the clergy’s remuneration etc.

These normative acts have been initiated and adopted upon request and consent of the denominations concerned.

The agreements between the State and various churches or communities are as mandatory as the conventions.

Between the Romanian State and the Holy See there are relations of international law, Romania being represented in Vatican by an ambassador, and the Vatican having an apostolic nuncio in Romania.

3. Principle of equality of religion is enshrined by the Constitution under

Article 29 which states that the recognized denominations enjoy an equal treatment. Article 4 enshrines the principle of protection of the religious identity, without any privileges and discriminations. In this respect, the Constitutional Court of Romania has adjudicated, for example, through Decision 101/2005.

The principle of equality of citizens before the law and public authorities, provided by Article 16 of the Constitution, and that of equality of religions, grants the same rights and liberties, without positive or negative discriminations, irrespective of their religion.


1. Founding of churches and religious communities, which are different

notion, is free and acknowledged by the State. The Constitution forbids all forms and acts of intimidation or discrimination due

to religious beliefs. That is why the State, along with the religious authorities is prudent and tolerant towards the religious sects.

In order to be tolerated, the sects must not threaten public safety, order, health and morality or the fundamental human rights and liberties. There are certain sects

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which act like closed communities and deny their members any contact with the outside world/rest of the society, even with their own families, keeping them within the community, making use of certain methods which highly criticized and which basically violate individual freedom. Moreover, behaviours such as the refusal of vaccination, of transfusions or of treatments which might save their lives fall under the scope of the criminal law.

2. State recognition of the existence of churches and religious communities Recognition by the State as a denomination is acquired through a Government

Decree, following a proposal submitted by the Ministry of Culture and Religious Denominations, and goes to religious associations that, through their activities and number of worshipers, provide guarantees of sustainability, stability and public interest.

Freedom of religion can also be exercised in religious associations or in religious groups.

A religious association is a private-law legal entity, made up of individuals who adopt, share and practice the same religion. It receives legal entity status by registering with the Registry of Religious Associations, which shall operate at the Clerks’ Office of every Trial Court in whose jurisdiction the association’s head office is located. Religious associations can establish subsidiaries that have legal entity status, according to their bylaws.

A religious group is a form of association, without a distinct legal entity status, of individuals who, without a preliminary procedure, freely adopt, share and practice the same religion.

3. State control over religious communities' operation On proposal from the Ministry of Culture and Religious Denominations, the

Government can, through Decree, withdraw the status of recognized denomination when its activity seriously threatens public safety, order, health, morality or the fundamental human rights and liberties. The dissolution of the religious association shall be pronounced by the competent court for the same reasons.

The use of funds obtained from their own sources and modality of organization and operation of denominations and religious communities shall not be subject to auditing by the State.

Denominations and religious communities enjoy the protection of the civil law relations and must comply with the obligations arising from the laws, as all the other legal entities. Likewise, third parties rights generated by legal relationships with religious legal entities are protected.

4. Freedom of appointment for positions of church authority Every denomination has a national leadership or representation body. The

denominations shall elect and appoint their leading bodies, as well as the staff,

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according to their bylaws. The heads of the denominations are confirmed, upon request, through Decree of the President of the Republic.

5. The state vs. internal law of religious communities The denominations and the religious communities are organised and function

according to their own bylaws, elaborated according to their confession, canons and traditions.

Denominations may have their own religious courts for matters of internal discipline, according to their bylaws and internal regulations. The State acknowledges their quality of bodies of ecclesiastic jurisdiction, within each and every denomination, as decided by the Romanian Constitutional Court in a very recent decision (no.640/10 June 2008).

By virtue of the principle of free access to courts enshrined under Article 21 of the Constitution, each worshiper, religious association or community may address the competent court for review of the decision rendered by the religious jurisdictions.

Patrimonial litigations between religious communities may be settled in a friendly manner by the representatives of the denominations concerned. Where conciliation fails, religious communities or association can refer the case to the competent civil courts.

Where, through administrative procedures, they have been aggrieved, denominations and religious communities may initiate the contentious administrative procedure.


1. The general principle mentioned by the Constitution and enshrined by the

jurisprudence of the Romanian Constitutional Court is that of strict separation of the State and religious communities which enjoy full autonomy.

The existence of this principle does not exclude the cooperation between State and denominations, especially as concerns the religious assistance provided in the military units, hospitals, prisons, asylums, orphanages, educational system and in other areas, as well as the support granted to religious communities with the view to achieve the right enshrined by the Constitution.

2. Direct and indirect State funding of religious communities is admissible,

from the constitutional viewpoint especially as concerns the denominations lacking any kind of incomes or the denominations with limited incomes.

The State, through normative acts, has established the funds granted to certain religious communities, as well as the indemnities of the leaders of such denominations. The allotment of funds was justified by their precarious financial situation and by the need to assure the exercise of their rights and freedoms.

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The denominations which develop charity activities are excepted from the payment of the income tax. There is also a tax exemption for the income obtained from manufacturing and selling the religious objects.

3. Protection and promotion of religious values a) Public institutions must observe religious values such as they observe all the

other values protected under the Constitution. Through express legal norms, was established the freedom to celebrate religious events and ceremonies of the most important denominations, public bodies having the obligation to assure the normal holding, without interfering with the religious ceremonies and processions .

b) Religious symbols – the cross, the crescent moon, the Star of David – are allowed both in religious premises and in other public places.

According to the Constitution and to the law, the President of Romania, the parliamentarians, the public officers, the judges of the Constitutional Court, of the High Court and of other courts must take an oath which final sentence is „So help me God”.

In court trials, witnesses take the oath placeing their hand on the cross or on the Bible. According to their religious beliefs they refer to a certain divinity. Those who have no confession shall swear on their honour, with the hand placed over their heart.

c) Permeation of religious and general cultural values shall be made according to the normative acts in force in observance of the Constitution. The bank certificates or the vehicle registration plates cannot bear the any reference to God. There can be inscriptions on the public buildings, invoking the divinity, such as „Nihil sine deo”. Christmas and Easter traditions are largely enjoyed.

d) The denominations and the religious communities can perform public tasks, such as: participation to the debates of certain normative acts drafted in their interest or for the general interest; heroes’ commemoration; celebration of the religious wedding; baptises and funerals.

IV. Religious communities, education, and religious training

1. The nature and form of the general education system are generally

determined by the Constitution The right to education is ensured by compulsory general education, education in

high schools and vocational schools, higher education, as well as other forms of instruction and post-graduate training courses.

The State ensures freedom of religious education, subject to the specific requirements for each denomination. In public schools, religious education is organized and guaranteed by the law.

The Education Law no.84/1995 provides that the national education system comprises public and private institutions.

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2. Public education According to the Constitution and to the laws, this is laic. There are also

confessional schools but only for the formation of priests, parsons, and of other categories belonging to the religious staff.

The training of the religious staff is assured through the theological universities, assimilated to the State Universities, through the seminars organized at the graduate and post-graduate levels.

Religious education is mentioned in the Constitution and granted by the law. It is made according to the exigencies of every denomination. In public schools, religion is studied based on pupils’ option and with the parents’ and legal tutors’ consent.

Following the written request of the pupil’s parent or legal tutor, the pupil may not attend religion classes.

Pupils that don’t belong to any denomination have the possibility to take part to study the ethics or religious doctrine and cannot be forced to adhere to any religion or to study a certain religion.

Religion classes are part of the curriculum and the time of the day when they take place is established with the consent of parents and teachers.

The school authorities are entitled to check wether these classes are fully accomplished.

Religion teachers may be priests or may have other positions in the denomination’s organization.

The marks obtained at religion have effect over the pupils’ final school results. They are mentioned in the annual report.

Pupils may pray together in schools. Usually, the prayer is made during the religion classes. The prayer is the one of the denomination which most of the pupils belong to. Pupils haveing a minoritarian religion are also free to pray separately.

The cross in schools is accepted. Recently, the High Court of Cassation and Justice has rejected the request of some organizations concerning the banning of the religious symbols in schools.

3. Private school There is a difference between private schools and confessional schools. The

private school is laic, organised according to the same principles as a public school. The confessional one is a religious school destined exclusively to children and youth with the same belief as of the denomination to which the school belongs to.

Private schools are created by groups of natural entities or of legal entities of private law, according to the Ministry of National Education, for the schools of the elementary, secondary and professional education and through law or bylaw for the higher education institutions.

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The activity of private schools is controlled by the State, in the meaning that their setting up and authorisation are subject to the education law and to the Law for the authorisation of higher education institutions.

Private schools are not financed by the State. They are financed from their own sources – educational fees, parents’ contributions, lucrative activities etc.

Within the organisation and functioning of these educational institutions the pupils or students do not necessarily have to belong to a religion or to another. The pupils are enrolled at these schools in basis of the results obtained at the admissions examination and not according to other criteria. They must pass the licence degree examinations within the State University, if the private institution is not accredited.

Students who do not observe the rules of the educational institution may be expelled from school as a result of the decision of the teachers’ council or of another sanction, according to the internal regulations.

Professors are recruited through exam or convention. The professors are free to carry out a didactic activity within the private education system or to have any king of collaboration with the private institutions, even if they also carry out their activity in the public education system, because everyone has a free choice his/her profession, as well as place of work according to the Constitution. In this respect, the Constitutional Court decided that the provision of the Law no.128/1997 on the status of the teaching staff that limited the teachers’ activity to only two workloads was unconstitutional. This because in the education system, as in all the other areas, what really matters is the quality of the services, the experience and the earnestness with which the professor carries out his duties, and not the workload.


After the fall of the communist regime, the Romanian State took legal measures

to repair the prejudice suffered by different denominations due to forced deprivation and nationalization of their properties.

The main normative act in this field is the Government emergency Ordinance no.94/2000 on retrocession of the denominations’ real estates. This regulates the framework of the process of retrocession. There were also adopted other normative acts regarding individual denominations: Decree Law no.126/1990 established rules and procedures for the return of confiscated properties that before 1948 belonged to the Greek-Catholic Church; Government emergency Ordinance no.21/1997 regarding the restitution of the real estates that belonged to the Jewish community; Government Ordinance no.112/1998 on retrocession of real estates that belonged to national communities (religious cults) transferred in the Romanian State’s patrimony through confiscation.

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The Romanian Law on the freedom of religion and the general status of

denominations offers the proper framework for a successful integration in the European spirit, being closely related to the similar legislation from many other European countries. This law is the proof of the general consent between the State and religious communities and it is a reflection of the Romanian specificity adapted to the European Union’s standards and exigencies.

EU law: In the field of religious life, the European Union largely admits the

preponderance of the internal law, under the condition of respecting the provisions of the international treaties and covenants. In the Declaration adopted by the Amsterdam Conference, it is mentioned that the European Union respects the status conferred by each member State to the religious communities, according to the national law.

Relevance of European Convention of Human Rights and the decisions of

the European Court of Human Rights Through the effect of the provisions of the Constitution of Romania, which

establish that once ratified by Parliament, treaties shall be part of domestic law, the provision of the mentioned Convention have been incorporated in the Romanian legislation.

The Romanian courts have to apply the laws not only in relation with the provisions of the Constitution of Romania, but also in relation with the provisions of the European Convention, as these were interpreted by the Court of Strasbourg. Moreover, the case-law of the European Court of Human Rights constitutes a thesaurus of valuable judgements taken into account by the Romanian judges when rendering their decisions.

In Romania, the Constitutional Court was the first court which invoked, as grounds for its decisions, the principles arising from the case-law of the European Court of Human Rights, and along the years, the grounding of its decisions on the ECHR practice became a routine.

Decisions of the Constitutional Court of Romania related to the matters

under A and B: no.23/1993, 44/1993, 127/1994, 49/1995, 72/1995, 89/1995, 18/1996, 30/1998, 480/2004, 101/2005, 293/2006, 640/2008

Laws related to the matters under A and B: - Law no.489/2006 on denominations; - Government emergency Ordinance no.137/2000 – banning any form of

discrimination;

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- Law 84/1995 of the education; - Law no.128/1999 / status of teaching staff; - Government Ordinance no.38/1997 - financial support provided by the State to

the cults; - Law no.103/1992 – exclusive right to produce and sell cult objects; - Government emergency Ordinance no.94/2000 retrocession of the

denominations’ real estates; - Government Ordinance no.82/2001 establishing certain forms of financial

support for the cult units; - Law no.195/2000 on military clergy; - Law no.142/1999 regarding the state support for the clergy’s salaries - Decree Law no.126/1990 - return of confiscated properties that belonged to

the Greek-Catholic Church - Government emergency Ordinance no.21/1997 restitution of the real estates

that belonged to the Jewish community; - Government Ordinance no.112/1998 on retrocession of real estates that

belonged to national communities (religious cults) transferred in the Romanian State’s patrimony through confiscation

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THE PROTECTION OF DATA AND DATA ON THE DEMOGRAPHY OF RELIGIOUS AFFILIATION

Mag. Miroslav MOZETIČ

Judge of the Constitutional Court of the Republic of Slovenia

Collecting Data on Religious Affiliation by means of a National Population Census

In this review I will limit my discussion to the issue of personal data on the

religious affiliation (i.e. religion) of individuals and namely the question of whether the state may prescribe the collection of such data and if so, under what conditions. The Act Regulating the 2002 Census of Population, Households, and Housing in the Republic of Slovenia (hereinafter referred to as the ARCPHH) determines in Article 6 that also data on religion be collected by the census (indent 14 of Article 6).1 In order to answer this question, I will proceed from the standpoints of the Constitutional Court of the Republic of Slovenia, as they follow from its Decision No. U-I-92/01, dated 28 February 2002,2 in which the Constitutional Court also reviewed the constitutionality of indent 14 of Article 6, among several other challenged provisions of the ARCPHH.

The petitions on the basis of which the Constitutional Court commenced proceedings for the review of the constitutionality of the ARCPHH contained two allegations: first, that the collection of data on religious affiliation as determined by the ARCPHH was inconsistent with the first paragraph of Article 7 of the Constitution, which determines that the state and religious communities are separate, and second, that it was also inconsistent with Article 41 of the Constitution (freedom of conscience).

With reference to the allegations on the inconsistency with Article 41 of the Constitution (freedom of conscience), the Constitutional Court examined two questions. First, whether the provisions of the ARCPHH which regulate the collection of data on religious affiliation are inconsistent with the constitutional right to freedom of conscience determined in the first and second paragraphs of Article 41 of the Constitution, which determines that religious and other beliefs may be freely professed in private and public life and that no one shall be obliged to declare his religious or other beliefs.

1 Zakon o popisu prebivalstva, gospodinjstev in stanovanj v Republiki Sloveniji leta 2002 (ZPPGO-1), Official Gazette RS, Nos. 66/2000 and 26/2001. 2 Official Gazette RS, No. 22/2002. In the part which refers to the collection of data on religious affiliation, the decision was reached by five votes against three. The above-cited decision, as well as other cited decisions of the Constitutional Court, are freely accessible on the web-site of the Constitutional Court (http://www.us-rs.si/).

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Taking into consideration its hitherto case-law,3 the Constitutional Court first defined the content of the right to freedom of conscience. Article 41 of the Constitution (freedom of conscience)4 protects the freedom of religious and other beliefs. It is a fundamental human right and freedom which is connected to numerous other constitutional rights, e.g. the right to personal dignity and safety (Article 34 of the Constitution), the protection of the right to privacy and personality rights (Article 35 of the Constitution), the protection of personal data (Article 38 of the Constitution), freedom of expression (Article 39 of the Constitution), the right of assembly and association (Article 42 of the Constitution), and rights and duties of parents (Article 54 of the Constitution).

Proceeding from the above-mentioned provisions of the Constitution and binding instruments of international law (Article 8 of the Constitution),5 the Constitutional Court emphasized that also three sub-rights arise from the freedom of religion for individuals: the right to profess any religion, the right to change one's religion, and the right to not have a religion. Freedom of religion guarantees individuals the right to either alone or in community with others, in public or private, manifest their religion or belief, in worship, teaching, practice, and observance (the positive freedom of religion). On the other hand, on the basis of the freedom of religion, individuals are guaranteed the right to not profess their religion (thus, also whether they have one at all - the negative freedom of religion). The state may not interfere with the freedom of religion. One of the negative aspects of the freedom of religion is determined in the second paragraph of Article 41 of the Constitution, which explicitly determines that no one shall be obliged to declare his religious or other beliefs. This, furthermore, entails that no one shall be obliged to declare his religious or other beliefs or be subject to coercion if they do not declare such or if they decline to declare such.6

3 In particular, Decision No. U-I-68/98, dated 22 November 2001, Official Gazette RS, No. 101/2001, and Decision No. U-I-92/01, dated 28 February 2002, Official Gazette RS, No. 22/2002. 4Article 41 of the Constitution reads as follows: “Religious and other beliefs may be freely professed in private and public life. No one shall be obliged to declare his religious or other beliefs. Parents have the right to provide their children with a religious and moral upbringing in accordance with their beliefs. The religious and moral guidance given to children must be appropriate to their age and maturity, and be consistent with their free conscience and religious and other beliefs or convictions.” 5 The Universal Declaration of Human Rights adopted by the United Nations in 1948; the International Covenant on Civil and Political Rights (Official Gazette SFRY, No. 7/71, and Official Gazette RS, No. 35/92, IT, No. 9/92); the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, IT, No. 7/94). 6 The same is determined in Article 18 of the International Covenant on Civil and Political Rights.

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On the basis of the above-mentioned criteria as well as the principles laid down in the Constitution and international instruments, the Constitutional Court established the rule that a statute which determines that individuals are obliged to declare their religious affiliation (i.e. religion) would be inconsistent with the Constitution, as it would entail a violation of the freedom of conscience, particularly with the negative aspect of this freedom, i.e. that no one is obliged to declare their religious affiliation. After a thorough review of all the relevant statutory provisions, the Constitutional Court established that the ARCPHH is not inconsistent with Article 41 of the Constitution as it ensured that individuals personally and freely declare their religious affiliation (i.e. religion), and decide whether to answer this question in the census at all.7

After establishing that the challenged provision of the ARCPHH ensured that individuals can freely declare their religion and that therefore it was not inconsistent with Article 41 of the Constitution (freedom of conscience), the Constitutional Court also had to answer the second question of whether an interference with the right determined in the second paragraph of Article 41 of the Constitution already exists merely by the fact that in the census the state inquires about individuals’ religious affiliation, although individuals are not obliged to answer such question. Or put differently, the question of whether the state may at all ask individuals about their religious affiliation, although they are not obliged to answer such question.

Data on the religious affiliation of an individual is personal data.8 The Personal Data Protection Act defines such data as “sensitive personal data”.9 7 The ARCPHH in the second and third paragraphs of Article 10 reads as follows: “Data concerning household members absent during the census may be provided by the household member who is most familiar with such data, whereas for children aged up to 15 years of age, such data may be provided by one of the parents, adoptive parents, or guardians. For household members absent during the census who were 14 years of age on the day of the census, data on religious affiliation and nationality may be provided by other persons only with their written approval that such data may be provided for the purposes of this census and with their written declaration on their nationality or religious affiliation. The person counted is not obliged to declare his national (ethnic) origin and religious affiliation, and the census questionnaire must contain legal instructions on such. A person conducting a census must register data in the census questionnaire as provided by the person counted.” 8 In the census such data was collected from individuals (it referred to particular individuals). Such data could only be used for statistical purposes. The data was allowed to be published only in aggregate form. The publication of data which referred to particular individuals (i.e. personal data) was prohibited (Articles 23, 29, and 30 of the ARCPHH). 9 Zakon o varstvu osebnih podatkov, Official Gazette RS, No. 86/04 (ZVOP-1). The Personal Data Protection Act defines personal data as “any data relating to an individual, irrespective of the form in which it is expressed”. An individual is “an identified or identifiable natural person to whom personal data relates”. The personal data considered

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The above-mentioned constitutional provisions, in particular the provisions which protect personal dignity, personality rights, privacy, and safety, and which prohibit interferences with these rights, have a special position among basic human rights and fundamental freedoms. In accordance with the principle that in this area everything is prohibited which is not explicitly allowed, any interference with the above-listed rights is prohibited unless it is explicitly allowed in accordance with the Constitution. The right to privacy can be terminated for an individual only where and when it collides with the statutorily demonstrated stronger interests of others.10 One of the aspects of the privacy of individuals is their religious or other beliefs.

In order to protect the right to privacy, the Constitution explicitly guarantees the protection of personal data (Article 38 of the Constitution). The Constitution prohibits the use of personal data contrary to the purpose for which it was collected, it determines that the collection, processing, designated use, supervision, and protection of the confidentiality of personal data is provided by law, and that everyone has the right of access to the collected personal data that relates to him and the right to judicial protection in the event of any abuse of such data.

In Decision No. U-I-92/01, the Constitutional Court reiterated that it follows from the provisions of the Constitution and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data that each collection and processing of personal data is an interference with the constitutional right to the protection of privacy, i.e. with the right of individuals to maintain the privacy of information about themselves, if they do not wish that others have access to such (information privacy). However, the right to information privacy is not unlimited or absolute. Therefore, individuals must accept restrictions on information privacy, i.e. they must allow interferences with information privacy in the prevailing general interest, and provided that the constitutionally determined conditions are fulfilled. Interferences are allowed if a statute expressly determines which data can be collected and processed, for which purpose it may be used, and provided that appropriate supervisory control of the collection, processing, and use, as well as the protection of the confidentiality of the collected personal data, is determined. Such interference is allowed provided that it is in compliance with the principle of proportionality. sensitive are data on racial, national, or ethnic origin, political, religious, or philosophical beliefs, trade-union membership, health status, sexual orientation, criminal records or minor offences records that are kept on the basis of a statute that regulates minor offences; biometric characteristics are also sensitive personal data if their use makes it possible to identify an individual in connection with any of the aforementioned circumstances. Similar definitions are also contained in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Official Gazette RS, No. 11/94, IT, No. 3/94. 10 Constitutional Court Decision No. U-I-25/95, dated 27 November 1997, Official Gazette RS, No. 5/98.

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Furthermore, the principle of proportionality is applied as a criterion for the review of a law which regulates the collection of personal data.

In the review of the constitutionality of the challenged provisions of the ARCPHH, the Constitutional Court established that the census is conducted in a manner such that individuals are not obliged to declare their religious affiliation, i.e. they are not obliged to answer the question on religion. However, their answer or the fact that they did not wish to answer the question is noted on the census questionnaire. Thus, every person counted at least provided data regarding the fact that they did not wish to declare their religious affiliation. Also such data was statistically processed. Therefore, the Constitutional Court held that merely the fact that religious affiliation is inquired about is an interference with the right determined in the second paragraph of Article 41 of the Constitution.11 Consequently, it reviewed whether the challenged provision is consistent with the above-stated criteria for the review of the admissibility of the interference with the right to privacy. Following a thorough review of the provisions of the ARCPHH, in particular of the consistency with the principle of proportionality, the Constitutional Court held that the interference was constitutionally admissible, which entails that the challenged provision of the ARCPHH was not inconsistent with the Constitution. In the review the question of the necessity of the interference was particularly important, i.e. whether such data could not be collected in a different manner which would interfere with the right to privacy to a lesser extent. Furthermore, the question was raised whether the purpose of collecting data on religious affiliation cannot be fulfilled by other methods (e.g. the collection of data on the basis of samples and anonymously). After thorough consideration, the Constitutional Court concluded that collecting such data by other methods is not yet an appropriate alternative to collecting data by means of a census.

The Constitutional Court dismissed the allegation regarding the inconsistency of the challenged provision with the first paragraph of Article 7 of the Constitution by establishing that the challenged provision of the ARCPHH does not regulate the relation between the state and religious communities, that it does not interfere with their relations, and that it does not directly refer thereto. It referred to its already adopted standpoints on the principle of the separation of the state and religious communities (Decision No. U-I-68/98, dated 21 November 2001)12. Again it pointed out that the state is religiously and ideologically impartial and concluded that it does not follow from the principle of the separation of religious communities and the state that the state should not collect data on the religious affiliation of its inhabitants, especially if it is collected for statistical purposes, which is the purpose of a census.

11 The interference with Article 41 of the Constitution must certainly be understood in a broader sense. It is an interference with the right to privacy, as data on the religious affiliation of an individual is undoubtedly one of the most sensitive personal data. 12 Official Gazette RS, No. 101/2001.

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The answer to the question raised at the outset of this review (i.e. whether the state may prescribe the collection of data on religious affiliation) is affirmative. Nevertheless, it may be concluded from Constitutional Court Decision No. U-I-92/01 that collecting data on religious affiliation may entail an interference with the right to privacy. Such interference is constitutionally admissible only if it is determined in accordance with Articles 38 and 41 of the Constitution and if it passes the test of proportionality (Article 2 of the Constitution). From the decision cited in the beginning of this review, Decision No. U-I-92/01, it follows that a law which regulates the collection of such personal data must regulate the collection of such data such that the data is provided in a truly voluntary and personal manner and that it is primarily intended for statistical purposes. Moreover, it follows from the cited decision that with the development of other methods of collecting and processing personal data, such data collection could become disputable from a constitutional point of view. It must be added that the discussed Constitutional Court decision refers to a review of the law which regulated the collection of personal data in the public interest. Personal data was thus collected by the state (the Statistical Office of the Republic of Slovenia as a state body). The collection of personal data in the private sector (e.g. religious communities collecting personal data on their members or followers) is regulated differently, also regarding sensitive personal data, which, however, will not be discussed in this review.

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THE CASE LAW OF THE SLOVENIAN CONSTITUTIONAL COURT IN THE AREA OF

FREEDOM OF RELIGION AND BELIEFS

Blaž IVANC*

Introduction

The Constitution of the Republic of Slovenia (hereinafter: the Constitution)1

provides for freedom of conscience and belief in the Art. 41 (hereinafter: the right to religious freedom). It broadly protects the freedom of self-definition and it refers not only to religious beliefs but also to moral, philosophical and other worldviews. This article gives the assurance of freedom of conscience (the positive entitlement), the right of a person not to have any religious or other beliefs, or not to manifest such beliefs (the negative entitlement), and the right of parents to determine their children's upbringing in the area of freedom of conscience.2 Art. 41 of the Constitution also refers to other constitutional rights, such as, e.g., the right to personal dignity and safety (Art. 34 of the Constitution), the protection of the right to privacy and personality rights (Art. 35 of the Constitution), the protection of personal data (Art. 38 of the Constitution), the freedom of expression (Art. 39 of the Constitution), the right of assembly and association (Art. 42 of the Constitution), the right to conscientious objection (Article 46 of the Constitution) and the rights and duties of parents (Art. 54 of the Constitution). Also important for constitutional review and interpretation is the Art. 7 of the Constitution, which enshrines: (1) the principle of separation of the state and religious communities, (2) the principle of equality among religious communities, and (3) the principle of free activity (autonomy) of religious communities within the legal order.3

* Dr. Blaž Ivanc, LL.B., LL.M., Lecturer in Law, College of Health Studies – University of Ljubljana (Visoka šola za zdravstvo – Univerza v Ljubljani) 1 The Constitution of the Republic of Slovenia (1991). 2 Art. 41 of the Constitution: » (1) Religious and other beliefs may be freely professed in private and public life. (2) No one shall be obliged to declare his religious or other beliefs. (3) Parents have the right to provide their children with a religious and moral upbringing in accordance with their beliefs. The religious and moral guidance given to children must be appropriate to their age and maturity, and be consistent with their free conscience and religious and other beliefs or convictions. « See Orehar Ivanc, Metoda: Commentary on the Art. 41 of the Constitution of the Republic of Slovenia) in: Šturm, L. (eds.), Komentar Ustave Republike Slovenije (Commentary on the Constitution of the Republic of Slovenia), Faculty of Post-Graduate State and European Studies, Ljubljana, 2002, p. 444-459. 3 Art. 7 of the Constitution: » (1) The state and religious communities shall be separate. (2) Religious communities shall enjoy equal rights; they shall pursue their activities freely. «.

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The jurisprudence of the Constitutional Court

The scope of Slovenian jurisprudence is rather modest, but there are several important decisions, which relate to the freedom of religion and other convictions. Most of them were made by the Constitutional Court. Characteristic for legal decisions regarding the freedom of religion and other convictions is that: 1. they were made in a very short time-period of fourteen years, 2. the legal doctrines, which form a basis for legal argumentation, are in the early stage of development and 3. the relevant case-law is developing progressively.

A set of important decisions of the Constitutional Court relate to the issue of property rights of religious communities. Under the Communist regime the propriety of religious communities, especially of the Catholic Church, was nationalized by regulations on agrarian reform, nationalization and confiscation.4 By the enactment of the Denationalization Act in 1991 the Legislator also tried to redress the injustices, done to the religious communities in relation to their property rights. The return of the Church property was and remains a highly politicized topic. Thus, the Court have had frequent request for the review of constitutionality of the Denationalization Act and the process of denationalization remains unfinished. As a rule the issues of denationalization are closely related to the respect for equality (Art. 14 of the ECHR) and to the protection of property of persons and institutions, as determined by the Art. 1 of the Protocol No. 1. The Denationalization of Church property case No. U-I-107/96 (December 1996)5

After the Denationalization Act was already in force for two years the Legislator introduced the Act on Partial Suspension of the Return of Property, which enforced a temporary suspension of property for three years in all those cases where the return of more than 200 hectares of farmland and forests was required by an individual claimant. As a petitioner the Roman Catholic Diocese of Maribor inter alia argued that the challenged statute was discriminatory and thus inconsistent with the Article 14 of the ECHR. The Court established that there were no justified grounds to temporarily suspend the implementation of the Denationalization Act. An important argument of the Court, which made a 4 See Šturm, Lovro: Church-State Relations and the Legal Status of Religious Communities in Slovenia, Brigham Young University Law Review, Number 2, Volume 2004, p. 638-640. 5 Already in 1993 the Court had to clarify the legal status of religious communities, their institutions and orders, and it had decided that their status has to be evaluated and interpreted according to the state regulations. The Court then explained that religious organizations are to be treated as domestic legal entities at the time of nationalization of their property, as well as during the entire period until the adoption of the Denationalization Act, and are as such defined also by positive law (the Legal Status Act). See the Denationalization of Church property case No. U-25/92 (March 1993).

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distinction between the return of large estates of feudal origin or the property relations deriving from historic feudal relations and between the return of large estates belonging either to churches or religious communities either to individuals as a result of their free enterprise initiative, was:

»… it is necessary to consider that large estate originating from the former feudal relationships is by nature not compatible with the notion of republic as a state arrangement and with the notion of a democratic state. Furthermore, it is also important to know that churches and religious communities play the role of generally beneficial institutions and have a particular position within our legal system. Therefore in cases where they appear as denationalization claimants they cannot be equated with the large estates of feudal origin or the property relations deriving from historic feudal relations. Such views were presented during the National Assembly debates when the challenged statute was being enacted. Also, with the large estates of feudal origin those large estates resulted from a free enterprise initiative cannot be equalled. To protect the trust in law it is urgent that the legislator take immediate measures and remove the uncertainty done to all those denationalization claimants who claimed the return of lands and forests over 200 hectares.«

The Request for an assessment of the constitutionality of the contents of a

demand to call for a referendum on the Law on the Changes and Additions to the

Law on Denationalisation case No. U-I-121/97 (May 1997) A demand to call for a preliminary referendum on changes and additions to the

Law on Denationalisation (with the same content as was the subject of judicial review in the case No. U-I-107/96) was initiated at the request of the National Assembly and the Constitutional Court was called upon to review its content. The Court inter alia decided that the first point of the question made in the demand to call a preliminary referendum on changes and additions to the Denationalisation Act, which reads as follows: »not to return land, forests and other property of feudal origin«, is not contrary to the Constitution, except insofar as it applies to cases where the bodies entitled to the denationalised property are churches and other religious communities, their institutions or orders. In Courts' opinion the second point of the referendum question (which reads as follows: »that an individual entitled to the denationalised property is not returned land or forests larger than 100 hectares of comparable agricultural land«) was contrary to the Constitution. In the decision on the Court also referred to the practice of the European Commission for Human Rights:

»The Commission on 4 March 1996 considered inadmissible a complaint in

which the plaintiff alleged a violation of Article 1 of the Protocol, claiming that according to the agreements on the reunification of Germany he should have been given an option to have his property returned or to receive compensation

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for the property confiscated between 1945 and 1949. The Commission in its decision referred to the permanent practice of the Court. Under Article 1 of the Protocol, property is considered to be the existing property, the property value or a claim which the claimant can prove has at least a reasonable chance of being fulfilled. In the case of Pine Valley Development Ltd and others versus Ireland, the European Court ruled that the right from Article 1 of the Protocol had been violated due to the existence of a legitimate expectation (l'esperance legitime) (ruling of 29 November 1991, Publications of the European Court of Human Rights, Series A, Vol. 222, point 51); in the case of Pressos Campania Naviera S.A. and others versus Belgium, it considered the compensation claim to be an asset and possession was therefore protected under Article 1 of the Protocol (ruling of 20 November 1995, point 31).

... The above reasons are why the Constitutional Court, in the assessment of the constitutionality of point 2 of the referendum question, must take into account the fact that a legal change restricting the return of farmland and forests would interfere with the constitutionally protected entitlements of all those persons entitled to denationalised property who satisfy the conditions for the return of property, and such a change in the law would only be possible if the conditions and circumstances of the strictest constitutional court review, cited in the introduction of these reasons, had been satisfied. The proposer of the request to assess the constitutionality maintains that these circumstances and conditions do not exist.«

The Denationalization of Church property – Bled Island case No. Up-395/06, U-I-64/07 (June 2007)

In a very recent case the Court dismissed the constitutional complaint of the Catholic Church for the return of the Bled Island. Differently then in the above mentioned cases the Court was of the opinion that the decision not to return the Bled Island to the Church would not interfere with the constitutionally protected entitlements of all those persons entitled to denationalised property and would not be in violation of the Art. 1 of the Protocol No. 1 (point 57 of the Reasons). This case is highly controversial; the Court has based its decision on a different legal basis as the Supreme Court and the plaintiff did not have the chance to present his arguments at the regular court and will thus most probably be presented to the Strasbourg Court invoking inter alia also the violation of the Art. 6 of the ECHR.6 The case Mihael Jarc et al. No. U–I–68/98 (November 2001) In the case Mihael Jarc et al. No. U–I–68/98 (November 2001) the Court reviewed the question of whether the provisions of the Education Act, which provide for

6 Because the case is very complex, it needs a special and very precise explanation, which cannot be presented in the framework of this contribution.

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prohibition of denominational activities in public schools, interfere with the positive aspect of the freedom of religion7, the principle of equality8, the right of parents9 and the right to free education10. The Court first declared that the general prohibition of denominational activities in public schools11 is not inconsistent with the Constitution and with the right of parents determined in the Art. 2 of the Protocol to the ECHR. The only inconsistency with the Constitution is the prohibition of denominational activities in licensed kindergartens and schools in regard to the denominational activities which take place outside the scope of the execution of a valid public program financed from State funds.12 The Court instructed the National Assembly to remedy the established inconsistency in a time limit of one year and the Legislator consequently changed the provision of the Art. 72 of the Education Act by allowing the licensed kindergartens and schools to carry out denominational activities which take place outside the scope of the execution of a public service.

The Principle of Separation vs. the Right to Religious Freedom

The Court first acknowledged that the Constitution »does not specially regulate denominational activities in (public and licensed) schools, which means that it neither prohibits nor requires such…«. This would (rightly) suggest that the matter was left to be regulated by the Legislator. However, the Court then argued that the general principle of the separation of the State and religious communities (on the basis of which the State is bound to neutrality, tolerance and a non-missionary manner of operation)13 means that in the school area the religious content cannot be part of public lessons (i.e. neither part of lessons in a public school, nor part of teaching in the framework of the public service of a licensed private school). For the Court, teaching of religion in as well as by public schools would be intolerable.

As a consequence of the Courts' initial standpoint a dilemma regarding the criterion for review turned up: whether the principle of separation should be interpreted in the light of the right to religious freedom or is the main criterion for review the right to religious freedom, (which ought to be interpreted in the light of the principle of separation).14 Since the constitutional right to religious freedom is one of few most hierarchically protected right and unconditionally protected

7 Para. 1 Art. 41. of the Constitution. 8 Art. 14 of the Constitution. 9 Para. 3 Art. 41. of the Constitution and Art. 2 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms. 10 Art. 57 of the Constitution. 11 Para. 4 Art. 72 of the Education Act. 12 Para. 3 Art. 72 of the Education Act. 13 Art. 7 of the Constitution. 14 Orehar Ivanc, M. (2000), p. 48.

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constitutional values (it may in no case be abolished and it can only be limited under very strict conditions),15 there should not have been any doubt that it cannot be outranked by to the principle of separation. Thus, the Court's above mentioned conclusion could not be deduced from the principle of separation alone. However, as the main criterion for judicial review of the general prohibition of denominational activities in public kindergartens and schools served the principle of separation.16

In reviewing the provision prohibiting the denominational activities in public kindergartens and schools the Court did refer to the right to religious freedom, but failed to make a consistent test of proportionality, which includes a careful and profound balancing between the positive and the negative aspect of the right to religious freedom. Strict interpretation of the principle of separation prevailed in the Courts' argumentation and pushed aside a full-scale balancing of both constitutionally protected aspects of the right to religious freedom;

»According to Art. 41.2 of the Constitution, citizens have the right not to

declare their religious beliefs and to require that the State prevent any forced confrontation of the individual with any kind of religious belief. A democratic State (Art. 1 of the Constitution) is, on the basis of the separation of the State and the Church (Art. 7 of the Constitution), obliged in providing public services and in public institutions to ensure its neutrality and prevent one religion or philosophical belief from prevailing over another, since no one has the right to require that the State support them in the professing of their religion. To reach this goal it is constitutionally admissible that the State takes such statutory measures as are necessary to protect the negative aspect of freedom of religion and thereby realize the obligation of neutrality. … Furthermore, the interference with the positive aspect of freedom of religion cannot be considered inappropriate as thereby the forced confrontation of non-religious persons or persons of other denominations with a religion they do not belong to can be prevented. This interference is also proportionate, in the narrow sense of the word, in so far as it relates to the prohibition of denominational activities in public kindergartens and schools. These are namely public (State) institutions financed by the State and are as such the symbols which represent the State externally and which make the individual aware of it. Therefore, it is legitimate that the principle of the separation of the State and religious communities and thereby the neutrality of the State be in this context extremely consistently and

15 Art. 16. of the Constitution. 16 Judge Tresten opposed to the selected mode of review (Para. 1 Art. 7 of the Constitution) insofar as it referred to the premises of public kindergartens and schools. In his opinion, in the case of licensed kindergartens and schools, the freedom of the founders of these schools to profess the religion should also have been considered as a necessary criterion for review.

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strictly implemented. Considering the fact that a public kindergarten or a public school do not represent the State only in carrying out their educational and upbringing activities (public services) but also as public premises, the principled prohibition of denominational activities does not constitute an inadmissible disproportionality between the positive aspect of the freedom of religion and the rights of parents to raise their children in accordance with their religious persuasion on one hand and the negative aspect of freedom of religion on the other hand.«

However, in reviewing the general prohibition of denominational activities in

licensed kindergartens and schools which take place outside the scope of the execution of a valid public program financed from State funds, the Court relied on the right to religious freedom as the main criterion for review. In order to determine a proper balance between the negative and the positive aspect of religious freedom the Court now carried out the test of proportionality more accurately. According to the Constitution, human rights and fundamental freedoms are limited only by the rights of others and in such cases as determined by the Constitution.17 The Court reviewed whether the interference, as enacted by the Education Act, with the positive aspect of the freedom of religion (conscience) of an individual and the right of parents is admissible to ensure the protection of the constitutional rights of others. The Court stressed that:

»in reviewing proportionality in the narrow sense we must weigh in a

concrete case the protection of the negative aspect of the freedom of religion (or freedom of conscience) of non-believers or the followers of other religions on one hand against the weight of the consequences ensuing from an interference with the positive aspect of freedom of religion and the rights of parents determined in Art. 41.3 of the Constitution on the other. There is no such proportionality if we generally prohibit any denominational activity in a licensed kindergarten and school. By such prohibition the legislature respected only the negative freedom of religion, although its protection, despite the establishment of certain positive religious freedoms and the rights of parents to provide their children a religious upbringing, could as well be achieved by a milder measure.«

For the Court, teaching of religion in licensed schools as a matter of principle is

tolerable. However, teaching of religion by licensed schools is only being tolerable in the case it is not performed in the scope of public service.

17 Art. 15 of the Constitution.

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The Census case No. U–I–92/01 (February 2002) (Act on the Census of the Population, Households, and Housing in the Republic of Slovenia in the Year 2001)18 Opinion (on the Agreement between the Republic of Slovenia and the Holy See) No. Rm-1/02 (dated 19 November 2003) (Official Gazette RS, No. 118/03 and OdlUS XII, 89)

In 2003 the Court issued an opinion on the constitutionality of the Agreement between the Republic of Slovenia and the Holy See on Legal Issues (hereinafter the Agreement). In the Courts opinion the Agreement (according to which the Republic of Slovenia and the Holy See confirm the principle that the State and the Catholic Church are each within its own system independent and autonomous and according to which the Catholic Church acts in the Republic of Slovenia freely under cannon law and in conformity with the legal order of the Republic of Slovenia) is not inconsistent with the principle of sovereignty (Art. 3 of the Constitution) and with the principle of the separation of the State and religious communities (Art. 7 of the Constitution) in so far as it is interpreted that the Catholic Church will in its activities in the Republic of Slovenia respect the legal order of the Republic of Slovenia. The Court used the internationally recognized principles from the area of guaranteeing the freedom of religion, in particular the principles of ECHR for the interpretation of the contents of the preamble to the Agreement, but have only mentioned (as obiter dictum) the provision of the Art. 9 of the ECHR in the Reasons of the Opinion (Point 10). The Referendum on the location of a mosque case No. U–I–111/04 (July 2004)

The Mayor of the Capital City of Ljubljana submitted a request to review the constitutionality of the Resolution on the Calling of a Subsequent Referendum on the Implementation of the Ordinance on the Amendments to the Ordinance on the Adoption of Land Use Planning Conditions for the V2 Trnovo – Tržaška cesta Planning Unit (for the VR-2/6 Ob Cesti dveh cesarjev area of regulation) and the Resolution on the Amendment to this Resolution (hereinafter: the Resolution on the Calling of a Referendum).19 At that time the location was held to be a future

18 See the contribution about »The Protection of Data and Data on the Demography of Religious Affiliation« written by mag. Miroslav Mozetič, judge of the Constitutional Court of Republic of Slovenia.

19 Item 2 of the Resolution calling a referendum determines: »The question posed at the referendum reads as follows: Do you agree that the Ordinance on the Amendments to the Ordinance on the Adoption of Land Use Planning Conditions for the V2 Trnovo – Tržaška cesta Planning Unit (for the VR-2/6 Ob Cesti dveh cesarjev area of regulation) be implemented?«

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location of a first mosque (a Muslim religious, cultural and educational centre) in Slovenia. The Court decided that the Resolution on the Calling of a Subsequent Referendum and the Resolution on the Amendment to this Resolution (Official Gazette RS, No. 41/04) are annulled ab initio.

Holding that the Art. 41. Para. 1 of the Constitution ensures the free profession of religion in private and public life the Court stressed:

« … that freedom of religion ensures the individual that they may freely

profess their religion by themselves or together with others, publicly or privately, through lessons, by the fulfilment of religious duties, through worship and the performance of religious rites, which is designated as the so-called positive aspect of freedom of religion. Thereby the Constitution not only protects the individual but also the profession of religion in community.«20

In its interpretation the Court also emphasized the protection of the right to

religious freedom by numerous international instruments which in comparison with Art. 41 of the Constitution determine in greater detail the contents and scope of this human right. The Court expressis verbis mentioned the provision of the Art. 9 of ECHR and was the opinion that:

»The case law of the European Court of Human Rights holds that by Art. 9

of ECHR prior to the calling of a referendum, religious freedom is not only guaranteed to individuals, but also to religious communities which are "capable of having and exercising the rights contained in Art. 9.1." Traditionally, religious communities exist in the form of organized structures. In a democratic society they are as such an indispensable constitutive part of pluralism. Therefore, according to the position of the European Court of Human Rights, they are even the central subject of protection under Art. 9 of ECHR …

… it is crucial for the exercise of the right to the free profession of religion that religious communities are allowed to build their own buildings which correspond to their way of religious worship, religious rites, and customs. Thereby it is necessary to take into consideration that the profession of a certain religion is not necessarily only focused on religious worship and the performance of religious rites, but can also be connected with social, educational and cultural activities. Profession of a religion in a manner that is usual and generally accepted for the profession of the individual religion is a

20 Here the Court followed its interpretation from the case Mihael Jarc et al. No. U–I–

68/98 (November 2001).

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pre-condition for the exercise of the free individual and community profession of religion, and thereby enjoys constitutional protection ...«21

The Conscientious Objection case No. U–I–48/94 (May 1995)

One should also mention the Conscientious Objection case because of its general importance for the judicial interpretation of the freedom of religion. New democratic Constitution (1991) introduced the right to conscientious objection in the Art. 46: »Conscientious objection shall be permissible in cases provided by law where this does not limit the rights and freedoms of others«. In this particular case the Court decided that the provision of the Art. 42 of the Act on Liability to Military Service is contrary to the Constitution in as far as it does not allow the exercise of conscientious objection also subsequent to conscription, throughout the period of the obligation to take part in the defence of the State. Consequently, the National Assembly had to change the provision of Art. 42 of the Act on Liability to Military Service.

Conclusion

The case law of the Slovenian Constitutional Court is not very extensive, but the Court made several important decisions in which interpreted the essence and content of freedom of religion and freedom of faith. The Court was very occupied by reviewing cases concerning Church property. It has also decided in the case concerning data protection and census. A very important case was a decision in the Mihael Jarc et al. No. U–I–68/98, which relates to the question of religious traning in public schools. The Court did not yet review cases related to the protection of religious feelings, to religious marriage and to religious care in the army, police, hospitals, prisons etc. It is evident that the relevant case-law of the Slovenian Constitutional Court is developing progressively and there are new important decisions, which are pending (e.g. the decisions on the Religious Freedom Act).

21 See points 27 and 28 of the Judgment. The Court referred to the decision of the European Commission of Human Rights in the case X and Church of Scientology v. Sweden (Council of Europe, Decisions and Reports, 16, Strasbourg, December 1979, Application No. 7805/77, p. 68) and to the decision of the ECHR in the case of Hasan and Chaush v. Bulgaria.

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Judicial decisions: Decisions of the Constitutional Court:

- The Conscientious Objection case No. U–I–48/94 (May 1995) - The Denationalization of Church property case No. U-I-107/96 (December

1996) - The Request for an assessment of the constitutionality of the contents of a

demand to call for a referendum on the Law on the Changes and Additions to the Law on Denationalisation case No. U-I-121/97 (May 1997)

- The case Mihael Jarc et al. No. U–I–68/98 (November 2001) - The Census case No. U–I–92/01 (February 2002) (Act on the Census of the

Population, Households, and Housing in the Republic of Slovenia in the Year 2001)

- Opinion (on the Agreement between the Republic of Slovenia and the Holy See) No. Rm-1/02 (dated 19 November 2003) (Official Gazette RS, No. 118/03 and OdlUS XII, 89)

- The Referendum on the location of a mosque case No. U–I–111/04 (July 2004) The Denationalization of Church property – Bled Island case No. Up-395/06, U-I-64/07 (July 2007

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Prof. dr. Lars FRIEDNER

Swenska Kyrkan

A. STATUS OF THE INDIVIDUAL The freedom of conscience is in Sweden expressly guaranteed through

Sweden’s accession to the European Convention for Protection of Human Rights and Fundamental Freedoms. The Convention now has direct effect in Sweden.1 The Swedish constitutional documents do not expressly mention ‘the freedom of conscience’, although it is implied, as other provisions of the constitutional documents aim at the expression ‘the freedom of conscience’.2

The freedom of religion is guaranteed through the constitution3 as well as through Sweden’s accession to the European Convention. The constitution aims expressly at protecting the freedom of religion towards ‘the public agencies’, by which is meant the central government (Sw. Staten) and local government bodies.4 The European Convention offers a somewhat wider protection.

The subject of the rights under the European Convention is ‘anyone’ – the Swedish constitution offers full freedom of religion to Swedish citizens.5 Aliens have – according to the constitution – a more limited freedom of religion.6 (In reality, though, there is no difference, as aliens can rely on the European Convention.)

Churches and other religious communities can register, which provides them – and their local or regional units – with legal personality.7 Having legal personality, churches and other religious communities have the same rights as any other body with such personality.

1 Act (1994:1219) on the European Convention Regarding Protection for Human Rights and Fundamental Freedoms (Sw. Lag om den europeiska konventionen angående skydd för de mänskliga rättigheterna och de grundläggande friheterna) 2 i.e. freedom of speech, freedom of information, and freedom of assembly, Instrument of Government (Sw.Regeringsformen) 2:1 3 Instrument of Government 2:1, 2:2 4 Holmberg&Stjernquist, Grundlagarna med tillhörande författningar (Stockholm 1980) p. 62 f. 5 Instrument of Government 2:1, 2:2 6 Instrument of Government 2:22 7 Religious Communities Act (1998:1593) (Sw. Lag om trossamfund) sections 7 and 13; see also Instrument of Government 8:6

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In Sweden, there are no general legal provisions protecting religious values, although there are acts of parliament that support them.8 Believers are protected against religious discrimination through the Penal Code.9 Anyone has the right to manifest his or her religious feelings, as long as these manifestations do not interfere with public order.

There is no special protection of religious symbols.10 On the other hand, there are no special provisions concerning the use of religious symbols in public. Religious symbols are not used in government administration, courts, or public schools. There is no immunity for churches, chapels, cemeteries, or other objects of religious culture.11

The general crime agitation against a national or ethnic group,12 which term embraces religious groups, also applies to the media.13 Thus, the editor of a newspaper or a radio programme will be punished if the newspaper (or programme) contains agitation against a religious group of people. This happened in a quite well-known legal case, where the editor of a programme on a local Muslim radio channel in Stockholm was sentenced for having agitated against Jews.14

In Sweden, there is no special legal protection of religious values in family life. The Swedish Marriage Code makes provision for religious as well as civil marriage.15 This means that a priest or another religious leader in a church or another religious community can officiate marriages on behalf of the state, provided the religious community has been granted this right.16 State courts decide on divorces.17 A decision on a divorce from a church court is of no significance for the public court’s handling of the matter. According to the European Convention, 8 i.e. Religious Communities Act, Church of Sweden Act (1998:1591 – Sw. Lagen om Svenska kyrkan), and Act (1999:932) on Support to Religious Communities (Sw. Lag om stöd till trossamfund) 9 Sw. Brottsbalken, 16:9 10 Some religious symbols, though, are under the protection of the Trademarks Act (1960:644) (Sw. Varumärkeslagen) 11 A cemetery or a crematory can not be attached or seized, although this rule should not primarily be seen as a protection of religion but rather a practical arrangement to ensure that not anyone could become owner of a cemetery or a crematory (Burial Act – 1990:1144, Sw. Begravningslagen – 2:11, 3:2) 12 Sw. Hets mot folkgrupp; Penal Code 16:8 13 Act on Freedom of the Press (Sw. Tryckfrihetsförordningen) 7:4; Fundamental Law on Freedom of Expression 5:1 (Sw. Yttrandefrihetsgrundlagen) 14 i.e. Stockholm City Court’s (Sw. Stockholms tingsrätts) sect. 8 judgment November 14, 1989, DB 15; the conclusion of the city court was later upheld by the court of appeal. 15 Marriage Code (Sw. Äktenskapsbalken) 4:3 16 ibid., Act (1993:305) on the Right for Officiating Marriages within other Religious Communities than the Church of Sweden (Sw. Lag om rätt att förrätta vigsel inom andra trossamfund än Svenska kyrkan) 17 Marriage Code 14:1, 3

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parents have the right to bring up the children in accordance to their moral and religious belief.18

Anyone is entitled to organise religious communities,19 as well as other non-profit associations.

Although Sweden is in many aspects a quite secularised country, Sundays are traditionally observed as ‘public holidays’ when most offices are closed. The legal manifestation of this is found in the Act (1930:173) on Calculation of Statutory Time,20 where it is stated that an obligation according to an act of parliament or an ordinance which has to be fulfilled on a day that is a Sunday (or another public holiday), instead can be fulfilled on next weekday.21 There is also an Act (1989:253) on Public Holidays,22 which enumerates the Swedish public holidays (other than Sundays). Quite many of them have Christian background and are church holidays, i.e. Christmas Day, Twelfth Day (Epiphany), and Easter Friday.23 People of other religious conviction than Christianity have no legal right to, for instance, be off work or school on their religious holidays, although some employers nowadays have organised their activities so that such people can take a day off, when needed for religious purposes. In some cases, these opportunities for holidays are linked to an obligation to work on some public holidays instead.24

Chaplains at peace-time military units are appointed by the local military authorities. It is normally a part-time job for a local priest within the Church of Sweden,25 but it may similarly be a priest or a pastor of another Christian church. The chaplains are paid for by the church they come from. In wartime (as well as during international operations) the chaplains are Christian priests or pastors on military duty. They are paid for by the military authorities.

Prison chaplains are appointed by the state authorities. In cases where they come from other churches than Church of Sweden, the chaplains are also paid by the authorities.

Hospital chaplains are organised through the Swedish Christian Council, which means that most of the Christian churches participate in the hospital services. Each church pays for its priest or pastor, bur the religious communities other than the Church of Sweden receive some financial support from the state for those duties.26

For the military forces, prisons, and hospitals, it is thus a duty for the Christian

churches to provide support with chaplains. If a soldier (prisoner, sick person) 18 regarding obligatory school attendance, see below 19 regarding registration of religious communities, see below 20 Sw. Lagen om beräkning av lagstadgad tid 21 Act on Calculating Statutory Time, Section 2 22 Sw. Lagen om allmänna helgdagar 23 Act on Public Holidays, Section 1 24 i.e. www.lotidningen.se 25 Regarding the position of the Church of Sweden, see below 26 Ordinance on Government Grants to Religious Communities, Section 11

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needs soul cure from another religion, it is the task for the chaplain to summon, for instance, an imam or a rabbi.27

The Swedish population records do not contain any information about religious affiliation.28


Until the turn of the millennium, Sweden had a state church system,29 although

it was not constitutionally defined as such. The change has been described as “new relations between state and church”,30 but still there is no constitutional definition of the actual system.

The cornerstone of the new relations is that the Lutheran Church of Sweden, the former state church, was transformed into a separate legal personality,31 not any longer a part of the legal personality of the state, and that other religious communities were given the opportunity to register as ‘registered religious communities’,32 thus becoming legal persons as religious communities. This new system for state-church relations aims at providing legal equality to churches and other religious communities.33 The new relations also gave the Church of Sweden freedom to handle its own affairs in a significant way that had not been possible earlier.

As mentioned above, anyone is free to establish a religious community. Such a community can obtain legal personality if it meets the standards of a ‘non-profit association’. If it does not meet these standards, it can still remain as a religious community, but without legal personality (which means that the persons acting for the community are personally bound by any obligations of the community). The provisions for becoming a ‘non-profit association’ are that the community has statutes or by-laws and a board.34 A non-profit association with the aim of divine services can register as a religious community.35 The state authorities, when registering the community, do not examine the religious aims of the community. The examination is only conducted from a formal perspective.36

27 i.e. www.skr.org, www.svenskakyrkan.se/samariterhemmet 28 Regarding church tax system, see below 29 see i.e. Friedner, Church and State in Sweden in 1999, European Journal for Church and State Research 2000 vol. 7, p. 225 ff 30 Government Bill 19995/96:80 p. 13 31 Church of Sweden Act, Section 3; Religious Communities Act, Section 5 32 Religious Communities Act, Section 7 33 Regarding provisions for becoming registered, see below 34 i.e. Strömholm (ed.), Svensk rätt – en översikt (Uppsala 2001) p. 294 35 Religious Communities Act, Sections 2 and 7 36 ibid.

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The Church of Sweden is registered already through the Religious Communities Act.37 It did not have to apply for registration.

Up till now, about 70 religious communities have been registered.38 Some of them are well-known churches, such as the Roman-Catholic Church, while other might perhaps be characterised as sects.

There are two significant advantages in being registered as a religious community. The most important is that the community is then free to organise itself on the basis of its own understanding. It does not have to comply with the provisions regulating the structure of other legal persons. The other advantage is the possibility to apply to use the state tax system for collecting membership fees.39

The state does not supervise the religious communities in religious matters, but of course the religious communities also have to follow general legislation concerning, for instance, public order, taxes, and accounting. The Church of Sweden Act states that the Church of Sweden is an Evangelical-Lutheran religious community and an open folk church, which in cooperation between a democratic organisation and the ministry of the church carries out nation-wide activities.40 These clauses are more to see as statements than as actual provisions, but if – theoretically – the fulfilment of them should be supervised, this would be a state matter.41 The state does not in any way supervise the religious communities’ appointments of officials.42

Disputes within a religious community are sometimes handled by the public courts. From a state point of view, this possibility depends on the status of the party involved, that is to say the community, as a legal person and that the dispute involves some kind of economic interest.43 Reported law suits have concerned priests as employees, where the priest has claimed that the church has not complied with the labour legislation.

Although the state church system was abolished in Sweden in the year 2000 and new relations between state and church were established, there is no wall of separation. The state has opened up the opportunity for religious communities to use the tax system for collecting their membership fees.44 Till now, nine religious

37 Religious Communities Act, Section 5 38 Edqvist&al, Kyrkoordning för Svenska kyrkan med kommentarer och angränsande lagstiftning, 2nd ed. (Stockholm 2005) p. 919 f 39 Religious Communities Act, Section 16 40 Church of Sweden Act, Sections 1-2 41 Official Government Report - SOU 1994:42 p. 165; about the Church of Sweden property, see below 42 Of course, the general provisions regarding visas and entry apply to religious communities 43 Government Bill 1997/98:116 p. 199; disputes concerning status are also allowed at public courts, but the possibilities are limited, according to the Code of Judicial Procedure (Sw. Rättegångsbalken) 13:2 44 Religious Communities Act, Section 16

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communities have applied for, and been granted, the right to use the tax system.45 The religious communities also receive direct economic support from the state.46 Those religious communities enjoying the right to use the tax system receive a limited direct economic support.47 The Church of Sweden also receives economic support from the state for the care of old church buildings, which are a part of our national cultural heritage.48 The reason that no other religious community receive any economic support for church buildings is that it is only the Church of Sweden that has any church buildings of that age.49

There is no active state promotion of religious values.50 Nor does the state provide access to any religious symbols. Nevertheless, religious values can be hidden behind, for instance, the common use of Christmas trees by state and local authorities as well as the rules on the days on which the national flag should be flown, among which are Christmas Day, Easter Sunday, and Whit-Sunday.51

As already mentioned, several religious communities have been granted the right to officiate at marriages.52 The activities are supervised by the Legal, Financial, and Administrative Services Agency.53 The Church of Sweden has an important role in the funeral system. Most cemeteries are under responsibility of the Church of Sweden parishes.54 The Church of Sweden’s handling of the funeral system is supervised by the county boards.55

The majority of Swedish children attend public schools.56 But any organisation or enterprise has the right to run a private school, provided it has a permit from the National Swedish Agency for Education.57 To obtain a permit, the school must give knowledge and skills of the kind and level essentially corresponding to those 45 www.skatteverket.se 46 Act on Support to Religious Communities 47 ibid., Section 4 48 Heritage Conservation Act, etc. (1988:950) (Sw. Lagen om kulturminnen m.m.) 4:16 49 Government Bill 1998/99:38 p. 134 ff, 143 50 But the state has declared that it in general is positive to religious activities, see Government Bill 1998/99:124 p. 60 51 Ordinance (1982:270) on General Days on which the National Flag Should Be Flown (Sw. Förordningen om allmän flaggdag) 52 Marriages Code 4:3; Act on the right for Officiating Marriages within Other Religious Communities than the Church of Sweden, Section 1 53 Sw. Kammarkollegiet; Act on the Right for Officiating Marriages within Other Religious Communities than the Church of Sweden, Section 3; in fact the Church of Sweden is not supervised in this field, probably as a rest of the old state church system, although a commission dealing with the matter has drafted such a supervision, see Official Government - SOU 2007:17 54 Burial Act 2:1; only in the municipalities of Stockholm and Tranås, the municipalities are responsible for the funeral system 55 i.e. Burial Act 10:5 56 www.skolverket.se 57 Sw. Skolverket

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provided by the public schools. Another provision is that the activities of the school must correspond to the basic values of the public school system.58 Private schools are granted the same economic support from the municipalities as are the public schools.

All schools are supposed to be neutral in religious matters. Religion is taught as a subject, but these lessons cover all the main religions. The lessons are compulsory for all pupils and have to comply with the curriculum laid down by the state.59 There are some private schools run by religious communities. In these schools, some religious training can take place beside the compulsory state curriculum. The private schools (as well as the public schools) are supervised by the authorities.60 Teachers at public schools are appointed and paid by the authorities; in private schools this is in the hands of the owner of the school.61 To the same extent as in other subjects marks are given in the subject of religion. As the schools are supposed to be neutral in religious matters, no compulsory prayers are allowed in public schools nor are the schools allowed to organise prayers – as mentioned already, compulsory prayers are allowed in private schools.62

Five Swedish state universities are offering education leading to a degree in religious science.63

In connection to the establishing of new state-church relations, also questions of church property appeared. As the Church of Sweden was the state church, it could be discussed whether church property, i.e. church buildings, vicarages, bishop palaces, and funds, were owned by the state or the church.64 These problems were solved through Parliamentary decisions, so that the church buildings and vicarages were handed over to the local parishes (if they were not already owned by these) and the bishop palaces and the central funds were handed over to the church as such.65 The only exemption was the property, once donated for the livelihood of the

58 Education Act (1985:1100 – Sw. Skollagen) 9:2 59 www.skolverket.se 60 Education Act 9:11 61 See above regarding the municipalities’ economic support to private schools. 62 Widely discussed in Sweden is the tradition of many schools to hold the breaking-up day in the local church. Whether this should be the case or not is a decision for the school’s headmaster. According to the National Swedish Agency for Education a breaking-up day in church is permitted, provided the breaking-up day ceremony is so modelled that the emphasis is put on traditions, solemnity, and being together, rather than religious elements; the basis is that every pupil, regardless of religion, must be able to participate in the breaking-up day ceremony; in exceptional cases there is a possibility for an exemption (www.skolverket.se). 63 www.gu.se, www.liu.se, www.lu.se, www.umu.se, www.uu.se 64 Göransson, Svensk kyrkorätt (Stockholm 1993) p. 194 65 Act (1998:1592) on Introduction of the Church of Sweden Act (Sw. Lagen om införande av lagen om Svenska kyrkan), Section 9

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priests,66 which was put into a legally new form of funds, administrated by the church and from which the church was granted the income.67

C. DIALOGUE WITH THE RELIGIOUS COMMUNITIES

The dialogue between the European Union and the religious communities in

Europe has had only a small impact on the situation in Sweden. The Archbishop of the Church of Sweden has been invited to meet the Presidents of the European Council, the Commission, and the Parliament. Representatives of the European Commission (on the matter of dialogue with the religious communities) have visited Sweden on a few occasions for discussions with the Swedish religious communities.

At the national level, there is an ongoing dialogue between the state and the religious communities. As a result of the new relations between state and church in Sweden, the Government established the Government’s Council for Contact with the Religious Communities.68 The task for the Council is to initiate discussions about overall questions of common interest for the state and the religious communities. The aim of the Council is that it should be a forum for continuous contacts and exchange of knowledge and experience.69 The Council meets about three times per year. All the religious communities big enough to receive economic support from the state have seats on the Council.70 The Minister for Culture chairs the Council. As examples of what has recently been discussed in the Council could be mentioned the question of a new Marriage Code for Sweden and the situation after the publishing in Denmark of some cartoons of the Prophet Mohammed.

66 Sw. Prästlönetillgångar 67 Act on Introduction of the Church of Sweden Act, Section 10; Church of Sweden Act, Section 9 68 Sw. Regeringens råd för kontakt med trossamfunden, Ku 2000:F 69 www.regeringen.se 70 See below regarding economic support to the religious communities.

IV. ADMINISTRATIVE AND FINANCIAL MATTERS IN THE AREA OF RELIGIOUS FREEDOM AND RELIGIOUS COMMUNITIES – QUESTIONS ADMINISTRATIVES ET

FINANCIÈRES DANS LE DOMAINE DE LA LIBERTÉ DE RELIGION ET DES COMMUNAUTÉS RELIGIEUSES

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RELIGIOUS FREEDOM AND THE CONCEPT OF LAW AND RELIGION IN AUSTRIA*

Prof. dr. Richard POTZ University of Vienna

1. The Specific Austrian Historical Background

The oldest elements of the socio-cultural and psychological factors determining

Austrian law on religion1 go back to the Habsburg counter-reformation and the Josephinian system with the establishment of the Catholic Church and tolerated minorities. The emancipation of religious minorities was a question of multi-confessionality from the very beginning. Besides the Protestants there were considerable Orthodox and Jewish minorities – until the end of the monarchy Protestants were demographically only on the fifth rank among confessional denominations. So the Toleranzpatent of Joseph II. came into force not only for Protestants but also for the Orthodox minority. At the same time patents for the Jewish communities (Judenpatente) and special Handschreiben for the Armenians and for other groups like Mennonites and Russian Raskolniki in Galicia and Bukovina were enacted. In the Josephinian Age we can therefore find beside the dominant Catholic Church various ”tolerated” communities, which had different legal foundations.

After 1848 the installation of a new system of state-church relations developed step by step. The Constitutional Act on the Fundamental Rights of Citizens of 1867 (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger – StGG) introduced a denominationally neutral system in ecclesiastical matters.

2 Though

Art. 15 StGG conferred upon all legally recognized churches and religious societies certain rights for the first time, it did not give details of the way in which the adherents of a certain denomination may obtain legal recognition. These provisions are contained in the Law concerning the Legal Recognition of Religious Communities (Anerkennungsgesetz – AnerkG) which is still in force. In the time of the monarchy a recognition according to the AnerkG took place only for the Old Catholic Church (1877) and the Herrnhuter-Brüderkirche (1880).

The AnerkG came into force only for new religious communities and was in principle not directly applicable to already recognized churches and religious * Updated and complied version of: R. Potz, Citizens and Believers in the Countries of the European Union: Austria: European Consortium for Church and State Research (ed.), Citizens and Believers in the Countries of the European Union (Pubblicazioni di diritto ecclesiastico 16) Milan 1999, 353-372. 1 For more information cf. H. Kalb, R. Potz & B. Schinkele, Religionsrecht, Wien 2003. 2 Cf. I. Gampl, R. Potz & B. Schinkele, Österreichisches Staatskirchenrecht, vol. I, Wien 1990, 30 seqq.

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communities. So the development of the ecclesiastical law concerning the churches and religious societies which were “historically recognized” in 1874 took place by way of special legislation. However, the Austrian Constitutional Court (Verfassungsgerichtshof – VfGH) declared, that the standards of the AnerkG are applicable for those historically recognized religious communities in an analogous way

3.

Of special interest is the background of the Law of 15 July 1912 concerning the Recognition of the Adherents of Islam as a Religious Community (IslamG)

4. The

institutional recognition of Islam by the procedure delineated by the AnerkG was not possible, mainly because of the lack of a juridical organization comparable to Christian Churches, a concept which was the basis of the AnerkG. Giving the individual Muslim the position of an adherent of a recognized religious community though there was no corresponding institution the IslamG 1912 built a bridge between corporate and individual status

5.

After the fall of the Habsburg Monarchy there was a significant constitutional change, but the system of state-church relations remained. The small republic was more catholic than the great empire, but there were two important minorities, the protestant and the Jewish.

The first renewal by a special law for a single church was done by the Concordat between the Holy See and the Austrian Republic, dated 5 June 1933.6 The Concordat was brought in connection with the establishment of a Christian autoritarian system 1934, which caused a political discussion on the validity of the Concordat after 1945.

After the Second World War the confessional structure of Austria changed significantly. The catholic majority was constantly decreasing (73,7 % in 2001). As 3 Gampl, Potz & Schinkele (fn. 2) 145, E 2. 4 Gampl, Potz & Schinkele (fn. 2) 458 seqq. 5 Cf. R. Potz, Rechtsstellung der islamischen Glaubensgemeinschaft in Österreich, in Koury & Vanoni, eds., Geglaubt habe ich, deshalb habe ich geredet. Festschrift für Andreas Bsteh, Religionswissenschaftliche Studien 47, Würzburg-Altenberge 1998, 394 seqq. 6 The special ecclesiastical law of the Catholic Church is traditionally governed by treaties with the Holy See which are recognized as bilateral international treaties sui generis and so are subject to the process of transformation according to Art. 50 Austrian Federal Constitution. A consequence of the Concordat as an international treaty is, that in the case of difficulties in the interpretation of the Concordat or the occurrence of problems not yet treated which affect state and church, an amicable solution (Clause of Amicability) is reached or a ruling is arrived at by mutual consent. According to Austrian constitutional law there is no other legal basis for treaties on ecclesiastical law. Prima vista we have therefore a formal difference in special ecclesiastical law between the Catholic Church and the other communities with possible consequences for the situation of the single believer. This problem, however, is diminished because nowadays the special laws for churches and religious communities are enacted in accordance with the corresponding religious community, so that the formulation of the legal text in all cases is the result of negotiations.

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a result of the expulsion and extermination in the Shoah the important Jewish minority was reduced from 2,8 % to approximately 0,1 % today, the protestant minority was increasing after 1945 with the stream of German refugees (from 4,3 % to 6,5 % after 1945, going back to 4,7 % in 2001) and since the sixties there has been a growing number of Muslims (4,3 % in 2001).

The development of Austrian law on religion after the Second World War was determined by the overcoming of the last remainders of a confessional state in Austria. The necessary corrections were enacted in the sixties. The most important new law is the Federal Law of 6 July 1961 on “External Legal Positions of the Protestant Church in Austria” (ProtestantenG)7, which represents the conclusion of a process which led to the equal treatment of the Protestant and the Catholic Church. In comparison with the Concordat this more recent law guarantees even greater religious freedom.

For the Greek Orthodox Church the Federal Law of 23 June 1967 on the External Legal Positions of the Greek Oriental Church in Austria (OrthodoxenG)8 was enacted. The OrthodoxenG for the first time recognized the Greek Orthodox Church in Austria as such in addition to the already existing communities9. Since that time we have had a two-fold membership in Orthodox Church and it is possible to be an adherent of the Orthodox Church without being at the same time member of a certain established community, a legal position comparable to the content of the IslamG mentioned above.

From the beginning of the seventies the Islamic Community rapidly increased in number and the question was raised, if an institutional establishment according to the IslamG 1912 would be possible. The governmental body was faced with several problems regarding the operation of the IslamG, some of them rather ridiculous like the institution of polygamy in Islamic law. This difficulty could be settled after calling for a fatwa from Al Azhar-University in Cairo, which stated, that there is no absolute right for a Muslim to marry more than one woman.

The correction of the Law of 21 March 1890 on the External Legal Positions of the Israelite Religious Society (IsraelitenG) is also an interesting example in our context. In a decision from 1981

10 sect. 2 IsraelitenG was partially declared

unconstitutional owing to a violation of the principle of equality. The Constitutional Court states, that it is incompatible with this principle to prevent a group of Jewish people founding another legally recognized religious community besides the only one existing on a certain territory. In this decision for the first time 7 Gampl, Potz & Schinkele (fn. 2) 331 seqq. 8 Gampl, Potz & Schinkele (fn. 2) 292 seqq. 9 After World War I the system of autocephalous/autonomous churches was changed according to the new political order, so that only three communities (Kirchengemeinden) – two Greek and one Serbian – remained within the borders of the Austrian republic. Meanwhile there is also a Rumanian, Russian and a Bulgarian community. 10 VfGH 7. 2. 1981, G 31/79, VfSlg. 9185/1981.

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one of the High Courts stated in such a significant way that the individual element of religious freedom is prevailing its corporative sphere, the individual guarantee of the fundamental right must not be violated by overvaluing the corporative right.

Since 2003 there has been a special law for the churches of the oriental-orthodox tradition, including not only the already legally recognized churches (Armenian-Apostolic Church since Joseph II or 1973 respectively and the Syrian Orthodox Church since 1988), but also the Coptic Orthodox Church, which has been a registered denominational religious community since 1998.

Since 1951 another six churches and religious communities have been recognized by statutory instrument according to the AnerkG (Methodist Church, Mormons, New Apostolic Church, Buddhist Community).11 The process of establishing more and more religious denominations was brought to an end with the emerging of new religious movements. On the one hand the conception on which the legal recognition is based did not seem suitable to be transferred on some of these groups owing to different structures. On the other hand in several cases the administrative body hesitated to confer public law-status on some of these groups for reasons pertaining to socio-political considerations.

2. The Two Spheres of Religious Freedom

The aim of all the legislative measures since 1867 has been first of all

equalization by emancipation and not by the reduction of the privileges of the established church. There was no equalization by separation between state and church, it was rather a system of ”establishing” more and more churches and religious communities, which were entrusted with public tasks.

So the traditional clear distinction between individual and corporative Staatskirchenrecht for a long time was maintained in Austrian legal literature. Only in recent times the unity of both fields of religious fundamental rights – the individual and the corporative sphere – is to be emphasized; both spheres are closely linked emanations of freedom of religion, which is necessarily a fundamental status in a democratic secular state

12. Nowadays it is accentuated that

11 The list of the legally recognized churches and religious societies actually comprises the following communities: Roman Catholic Church, Protestant Church (Lutheran and Reformed), Orthodox Church (in concreto the Greek, Serbian, Rumanian, Russian, Bulgarian communities), Jewish Religious Society, Old Catholic Church, Islamic Religious Community, Oriental-Orthodox Church (Including Armenian, Syrian and Coptic Church), Methodist Church, Mormons, New Apostolic Church, Buddhist Community. 12 Cf. R. Potz, ”Die inneren Angelegenheiten der anerkannten Kirchen und Religionsgesellschaften”, in Ex aequo et bono (In honour of Willibald Plöchl), Innsbruck 1977, 410; H. Kalb & R. Potz, ”Zur Konzeption des Verhältnisses von Staat und Kirche im weltanschaulich neutralen Verfassungsstaat”, in Austrian Bishops’ Conference ed., Kirche in der Gesellschaft – Wege in das 3. Jahrtausend, Wien 1997, 69 seqq.

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it is the primary task of the state to promote religious communities in order to protect the religious interests of the individual adherents.

The „catalogue“ of Austrian fundamental rights is characterized by the fact that they are embodied in Constitutional Acts or Treaties under International Law respectively (Art 1413, Art 1514 StGG, Treaty of St. Germain15, Art 9 ECHR) that date from several historical epochs with a different state-church relationship and a different understanding of fundamental rights. That is an Austrian specificity in comparison to other European countries. The most comprehensive protection of religious freedom became part of the constitutional system 1958 by means of the ECHR. As a result of this gradual development the single constitutional provisions are overlaying and overlapping each other. That’s why they have to be summarized by means of a synopsis of all relevant guarantees amounting to one „aggregated law on religious freedom“.

In our context one has to stress that according to the European case-law churches or other religious communities as well as philosophical organisations have a right as such to manifest their religion or belief, though Art 9 leg cit has been drafted as an individual right. Therefore, initially the Commission held that a church, being a legal and not a natural person, was not capable of having or exercising the rights mentioned in Art 9 ECHR. After changing its position (1978) the communities mentioned above can be victims of an alleged violation of Art 9 ECHR themselves.

Due to the fact that the ecclesiastical right to self-determination is emanating directly from the human right to religious freedom and the institutional guarantee, therefore, understood as a conclusive completion, a teleological synopsis of all guarantees concerning religion and belief has do be done and the different

13 Note especially Art. 14 StGG 1867: (1) Everybody is guaranteed complete freedom of religion and conscience. (2) The enjoyment of civil and political rights is independent of religious denomination; however the duties of the citizen may not be infringed upon by religious beliefs. (3) Nobody can be compelled to acts of worship or to participate in church ceremonies or events, insofar as he is not subject to the legally justified power of a third person in this respect. 14 Art. 15 StGG guarantees ”every legally recognized church or religious community” the right to communal public worship; to order and manage ”independently its internal affairs”, to ”remain in possession of and continue to enjoy the fruits of its institutions, foundations and funds intended for the purpose of worship, education and welfare”, but they are, ”like any association, subject to the general laws of the state”. 15 See especially Art. 63 of the Treaty of St. Germain: Austria commits itself to guaranteeing every inhabitant of Austria full and comprehensive protection of life and liberty without respect to differences in birth, nationality, language, race or religion. All inhabitants of Austria have the right to freely exercise faiths, religions or denominations of every kind in public and in private, insofar as their exercise is not incompatible with public order or morality.

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reservation clauses in Art 15 StGG and Art 9 Abs 2 ECHR are to be harmonized. That’s the way to create a comprehensive right of religious freedom encompassing its individual and its corporative element as well.

Recognized churches and religious societies have a public-law status, non-recognized religious communities obtain juridical personality only on the basis of private law. Since 1998 there has been a special private-law-status for non-recognized religious communities, which is called “officially registered religious denominational community” (staatlich eingetragene religiöse

Bekenntnisgemeinschaft)16

. Of course the system of different legal status for religious communities has

certain consequences for the individual adherent of a religious community. Therefore this system is only justified if there is no difference between the legal status of religious communities as far as legal posititions are concerned which derive directly from the fundamental law of religious freedom. That’s why the whole legal system has to be examined if the consequences ensuing from the fact of being legally recognized are legitimated from that point of view, whereby the principle of equality serves as a special measure. All differentiations provided by legal acts have to be legitimated by objective and reasonable criteria, otherwise they represent unobjective infringements of the fundamental rights’ guarantees and have to be abolished. In the future these procedures are going to involve considerable challenges for the legislator as well as for the courts.17

3. The Principle of Neutrality

As a result of the fundamental right of religion and belief, the state is bound to

denominational neutrality, which is described to be a constitutional principle. In Austria this fundamental principle is to be carried into practice in different ways. Consequently one has to make a clear distinction between two different forms of religious neutrality: the “distancing” neutrality (distanzierende Neutralität) and the including neutrality (hereinnehmende Neutralität). As far as the state acts within its central sovereign sphere – that means genuine non-exchangeable state tasks are concerned (for instance jurisdiction) – religious neutrality has to be realised in its ”distancing” form, any possible identification with religious or philosophical beliefs has to be avoided.

In this context, however, one has to stress that this does not mean that the state – though neutral towards religious and philosophical beliefs – were not allowed to set measures of promotions in favor of churches and religious societies as socially relevant factors. The distinguishing characteristics, however, have to be of secular and not of religious nature. The life circumstances of the communities on the whole 16 H. Kalb, R. Potz & B. Schinkele, Religionsgemeinschaftenrecht. Anerkennung und Eintragung, Wien 1998. 17 See below.

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are to be taken into consideration, for instance the number of members, the social significance, or the activities in charitable and general welfare matters.

Such deliberations are to be consistent with a modern substantial comprehension of fundamental rights. These rights don’t establish only a right to defense towards the state but they also impose positive obligations the state has to comply with in order to render possible an effective exercise of the fundamental rights. Of course, such interpretations involve difficulties of delimitation which have to be solved in an actual case.

Generally in connection with such questions the relationship between the positive and negative aspects of religious freedom is concerned. Both elements are of equal status and though the protection of minorities is a special function of fundamental rights, the negative aspect, however, is not prevailing, otherwise it would prevent an effective exercise of fundamental rights. The crucial point is to find a fair balance between the positions being in conflict and both guaranteed by basic rights. This establishes a “practical concordance” by means of careful weighing procedures and with it an effective protection of fundamental rights.

Recently such a differentiation was discussed with regard to the presence of crosses in class-rooms and court-rooms. In the context of school education the cross can be interpreted as an offer of exercising the fundamental right of religious freedom or the paternal right. Within the Courts’ decision making, however, the cross does not indicate to take into consideration religious interests as such, in the contrary, religious feelings might be abused in the interest of a (real or supposed) more effective administration of justice. Consequently, the cross can be justified in the class-room, but it should be removed in the court-rooms.18

4. The single believer and the system of recognized religious

communities as a concept of “Multi-Establishment”

The system of special laws for several recognized churches and religious communities of course causes the danger of distortions. But already in the Motivenbericht to the AnerkG 1874 was stated that the purpose of this act was to realize the freedom of religion and conscience as well as the principle of parity of the confessions. Especially important for this form of substantive parity is sect. 1 para. 2 no. III ProtestantenG 1961, which states: ”All acts of legislative and of executive power, which concern the Protestant Church, have to observe the principle of equality before law in relation to the legal and factual position of the other legally recognized churches and religious communities”.

These formulations mean much more than a mere declaration of the legislator’s intention, they indicate the meaning of a most favoured (religion) clause with

18 Cf. H. Kalb, R. Potz & B. Schinkele, Das Kreuz in Klassenzimmer und Gerichtssaal, Religionsrechtliche Studien Bd. 1, Wien 1996.

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reciprocal effect. The administrative practice interpreted this regulation in the same way.19

Nevertheless there seem to be some disparities, which mainly have the historical reasons mentioned above. It is, therefore, to examine in every single case if a different regulation is in accordance with the principle of substantive parity – a necessity to a high degree intensified in view of the new Law concernig the legal personality of religious communities from 1998.

This law marked a decisive point in the development of the Austrian law on religion. Registered religious communities obtain juridical personality on the basis of private law, whereas recognized churches and religious societies enjoy a position as corporations of public law. It has brought some important corrections urgently demanded since a long time. Especially the deficiencies of the traditional law regarding Art 9 in connection with Art 14 ECHR are settled with it to a large extent.

Though the registered religious communities are also “recognized” by a state act in a larger sense – they receive somehow a “certificate of non-objection” – the legal consequences of that status for the individual adherent is rather insignificant. That depends on the above mentioned fact, which the Austrian law on religion has been and still is characterized by a clear differentiation between legally recognized religious communities (in a strict sense) and not legally recognized communities. At the moment it cannot be foreseen how the process of adjustment will run exactly, but there can be no doubt that considerable changements are to be carried out – for example in the fields of personal status, military service or civilian service respectively, religious education, revenue law, religious assistence in the armed forces and other institutions, or collective labour law.20

5.Religion in Public Law – Some Aspects

5.1. Non-military Service

According to Art 9a of the Austrian Federal Constitution a non-military service for conscientious objectors is provided. A person liable for military service needs to declare expressly that he objects for reason of conscience – except in cases of self-defense or defense of another from imminent attack – to using force of arms against other human beings. In this case he has to serve in alternative civilian services. For several years there was the practice, that adherents of Jehovah’s witnesses, who rejected even civilian service, were neither called to arms nor to non-military civilian service. Since a short time the leading body of the community

19 A Protestant agricultural private school was granted a subsidy with reference to the paragraph concerned in connection with Art 2 para 2 of the Supplementary Treaty to the Concordat 1962 which provides a subsidy for Catholic private schools of the same type. 20 See below.

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has declared that it is left up to the individual adherent whether he is willing to render civilian service or he refuses it for grounds of conscience. Now nearly all of them render civilian service.

5.2. Data Protection

By implementing the EU-Directive on Data protection 95/46/EG, the Austrian

Parliament passed a new data protection law (Datenschutzgesetz 200021), which came into force on January 1st 2000 and replaced the DSG 1978. The processing of sensitive data like religious belief and non-religious convictions therefore needs a special reasoning concerning its importance in public interest. The laws have to contain corresponding guarantees for the protection of data subjects. Even in the case of admissible restrictions the encroaching on the fundamental law has to be done in the slightest manner.

As a result of this regulation § 9 DSG contains an enumeration of 13 issues which constitute admissible restrictions regarding the prohibition of the processing of sensitive data. Most of them lay down the exceptions of Art 8 sect. 2 and 3 of the Directive. A few of the issues (nr 3, 4, 5, 10) contain concrete exceptions referring to Art 8 sect. 4, which authorises the Member States, to lay down more exemptions „for reasons of substantial public interest“. Issue 10 to 13 contain admissible infringements by private thirds. Issue 13 is interesting in the context of religious communities: Non-profit-Organisations with political, philosophical, religious or unionised purposes are permitted to process data, which allow conclusions to the political opinion or convictions of natural persons, if it is in the context of their permitted activity and the data subjects are members, promoters or other persons, who stated regularly their interest in the activity purpose of the corporation. The disclosure of these data to a third party is only possible according to a legal regulation. Otherwise the controller needs the data subject’s consent.22 5.3. Festive Days

In all countries most of the public holidays are traditionally religious feasts, in Austria therefore they are mainly of catholic origin, with the exception of May 1 and National Day. But there are some special regulations for adherents of religious minorities: Good Friday is a recognized holiday according to the laws regulating public holidays for the members of the Protestant Church, Augsburgian and Helvetian Confession, the Old Catholic Curch, and the Methodist-Church.

21 DatenschutzG of 17. 8. 1999, BGBl I 1999/165. 22This passing on prohibition for religious communities and corporations regarding the data of members, promoters etc has a certain importance for the activity of the „Bundesstelle für Sektenfragen“, cf. R. Potz, Church and State in Austria 1999, European Journal for Church and State Research 6/1999, 167 s.

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Furthermore religious holidays are taken into account for the purposes of School Acts, for instance the Sabbath for pupils of the Jewish Community and the Seventh-Day-Adventists and the last days of Ramadan for Muslim pupils.

5.4. Denominational Private Schools

State schools are financed by those charged with this duty by the law (Federal Republic, Federal States, local authorities). They are open to everyone, regardless, among other things, of denomination. All other schools are private schools. The legally recognized churches and religious societies are among those authorised to operate, i.e. to found and to ensure the continued existence of private schools. Where schools are operated either by churches or religious societies or by their institutions or by institutions, trusts or funds recognized by them, those schools are known as denominational schools and certain special regulations apply to them. Private schools are granted public status if their operators, heads and teachers can guarantee proper and regular instruction in accordance with the aims of Austrian schooling.

In the case of legally prescribed types of school the results achieved in class must be equivalent to those at a State school of the same type. The fulfilment of these conditions is legally presumed in the case of recognized churches and religious communities. If a private school is operated by a non-recognized religious community the conditions for the achievement of public status have to be approved in every single case.

Only recognized churches and religious societies are to be granted subsidies towards the costs of teaching personnel for the denominational private schools which have public status.

23 Because of its public-law status the Islamic

Community also enjoys the “privileges” for denominational private schools. Therefore there is an Islamic gymnasium organized as a denominational private school according to Austrian Private School Law.

5.5. Religious Instruction

Religious education is guaranteed by Art 17 para. 4 StGG, which provides that the respective churches or religious communities are charged with the classes in religious education in the schools. Like the regulation of denominational private schools seen systematically the article forms an elaboration of the parents’ right to religious or philosophical education respectively of their children according to Art 2 Supplementary Protocol.

According to Sect. 2 para. 1 Organization of Schools Act, it is the aim of Austrian schooling to cooperate in the development of the youth’s aptitudes according – amongst other things – to religious values by way of appropriate 23 Sect. 17 PrivatschulG BGBl. 1962/244, as amended by BGBl. 1972/290.

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instruction. The inclusion of religious values in the article describing the aims of education is due to the aim of a comprehensive education, which naturally applies only to persons open to religious education and development.

This wording makes it clear that the concept of church-run classes in school is accepted in Austria and that is the way the denominational character of the classes is especially emphasised. The religious communities, not the state, organise the religious education classes, despite the fact that as a compulsory subject religious education enjoys equal standing with other subjects.

For all pupils who are members of a legally recognized church or religious community, religious education of their denomination is a compulsory subject at the compulsory schools, secondary schools, teaching colleges, agricultural colleges and colleges of forestry. At other schools religious education is an optional subject.

Religious education has been strongly criticised for granting privileges to the recognized churches and religious societies and some have even called for its aboli-tion. In this context the introduction of ethic classes in Austria has been discussed and in several Austrian countries some experimental classes have already been started. A solution most compatible with the Constitution would appear to be the introduction of ethic classes for those pupils who have withdrawn from religious education classes and as an obligatory subject for those for whom no religious edu-cation classes exist because of belonging to no religious denomination or to a non-recognized religious community respectively.

24

In school law there is one example where conscientious objection by an adherent of a non-recognized church is accepted: According to the Law on Schooltime the possibility is granted to keep away from school instructions for religious reasons on Saturday. In decrees of the education authorities this possibility is explicitly regulated not only for the recognized Israelite Community but also for the Seventh-Day Adventists, although they do not belong to the recognized churches, even though since 1998 to the registered religious denominational communities.

According to the regulation in sect. 2 para. 1 of the Law on Religious Instruction (Religionsunterrichtsgesetz)

25 in all public schools and those schools

granted equality of that status, as far as religious education is a compulsory subject, the school operators are charged with the duty to hang up a cross in each class room presupposed the majority of the pupils belong to a Christian denomination. This provision might be improved insofar as there should be a legal possibility for the school operators to render a decision deviating from the principal taking into consideration all facts and circumstances of an actual case.

Since the introduction of Islamic religious instruction in Austrian public schools in 1983 the school administration has been faced with several problems, although 24 B. Schinkele, ”Staatskirchenrechtliche Überlegungen zur aktuellen Diskussion um Religions- und Ethikunterricht”, ÖAKR 1993, 220 seqq. 25 BGBl. 1949/190 as amended.

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the system went well on the whole. The foundation of the Islamic Religious Pedagogical Academy, which was established according to the regulations for pedagogical academies in the Austrian Law on private schools was in the interest of the Islamic community as well as of the Austrian school administration. In the meantime the legal foundation of this Academy has changed.26

5.6. Protection of Monuments

According to the Law on Protection of Monuments the destruction as well as

every alteration of monuments is in need of the consent of the federal office for protection of monuments, excepted in cases of danger in delay (§ 2 sect. 2). The application for alteration (together with pertinent adjacent objects) is to be granted if the monument is used for worship of a legally recognized church or religious society and the alteration is necessary for the exercise of worship on the basis of compelling or at least generally applied liturgical instructions (§ 5). As necessary in the meaning of this provision are to be considered, at any case, liturgical instructions that must be observed in order to permit regular practice of worship as well as those circumstances which enable the faithful to attend church to a sufficient degree and in a reasonable and dignified way. The kind and extension of this necessity is to be proved with a certificate of the competent supreme authority of the church or religious society concerned on demand of the federal office for protection of monuments. This certificate has to include the consequences that are to be expected if the application for the alteration would not be granted in the way or extension that has been asked for in the application. Thus the above mentioned office gets the basis for making an alternative proposal. If the office has already made some suggestions the church authority has to give its comment on them (§ 5 sect. 4).

6. Believers in Private Law

6.1. Matrimonial Law In Austria there is the system of compulsary civil marriage. Religious marriages

are without any civil consequences. On the other hand it is in principle possible to be married only in church law without legal consequences in state law27.This

26 See below. 27 The provision of sect. 67 PersonenstandsG 1939, according to which a church wedding before the state wedding was punishable, was quashed by the Constitutional Court in 1955 as being incompatible with the Constitution, as marriage by an organ of a religious community, including the time of such a ceremony, forms part of the internal affairs of the churches or religious communities because the church ceremony has no consequences in state law.

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alternative often was chosen for economic reasons, for instance because of the higher maternity grant for single mothers28.

6.2. Religious Upbringing of Children

The parents of children who have not yet attained majority in religious matters,

may for as long as the marriage continues freely agree on the denomination or philosophy according to which they wish to bring up their children. The agreement ends with the death of either spouse. If one person has sole custody of the child, he or she may decide on the nature of the religious upbringing. Guardians and trustees, however, require the authorisation of the guardianship court. After divorce the parent not entrusted with the child’s upbringing merely has a right of comment in the case of a change of religion.

Regarding the protection of welfare of minors there were some spectacular cases of Jehova’s witnesses concerning the refusal of blood transfusion in the last years, so that this problem was of nationwide interest. The persons having care and custody of a child carry the obligation for the “protection of the physical well-being and health of the child” (sect. 146 Austrian Civil Law Code [Allgemeines Bürgerliches Gesetzbuch – ABGB]), regardless of their religious commandments. These persons cannot refer to their constitutionally guaranteed right of religious freedom and of freedom of conscience in this matter of obligation. In the case of the parents’ refusal, their consent has to be replaced by the consent of a legal representative who is to be appointed after a partial withdrawal of the parents’ custody of the child

29.

In a decision on granting parental custody, the Austrian Supreme Court (OGH) decided 1986

30 that if a child is forced into the role of an outsider in society

because of its upbringing according to the beliefs of Jehovah’s Witnesses or runs health risks (prohibition of blood transfusions), this must be considered as a relevant factor. The matter was taken to the ECHR in Strasbourg which found that there had been a violation of the right to family life according to Art 8 ECHR in connection with Art. 14

31. In the last years, therefore, the Austrian Supreme Court

has decided twice – one case referred to a Jehova’s witness32

, one case to an 28 The church is here faced with the dilemma of insuring the continued significance of its concept of marriage in society by encouraging the adoption of the appropriate laws. On one hand it demands the support of marriage and the family, on the other hand it risks partici-pating in the exploitation of social welfare institutions by allowing a church wedding without a state marriage. 29 Sect. 8 para. 3 KrankenanstaltenG BGBl. 1957/1 as amended in connection with § 176 ABGB. 30 OGH 9. 3. 1986, 1 Ob 586/86, SZ 59/144, ÖAKR 1987/88, 104 seqq. 31 Europ. Court H.R. 22. 6. 1993, 15/1992/360/434, ÖAKR 1993, 527 seqq. 32 OGH 4. 6. 1996, 1 Ob 601/95, JBl. 1996, 714 seqq.

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adherent of Scientology33

– that membership to these groups could not be the only reason for denying parental custody in case of divorce. In one case the lower instance ordered the child’s mother being a member of Scientology who was granted parental custody to keep away Scientology’s ideas from the child. In the case of a 13-year old boy who was sent by his mother for 7 months to a school of Sahaja Yoga in Dharamsala (India), the grandparents asked for a transfer of custody or at least visitation rights. Although the Austrian Supreme Court refused the grandparents’ request arguing that staying at a boarding school as such brings damage to the child’s welfare, because of the special circumstances in the concrete case (contact with the parents was forbidden) the custody was partly handed over to the competent court

34.

6.3. Labour Law

Regarding collective labour law the exemption from the co-determination by employees is granted businesses and enterprises of legally recognized churches and religious societies to a greater extent compared to such institutions within other religious communities. A fact, that will have to be examined especially since the new Law concerning the Legal Personality of Religious Communities has been put into force.

That distinction might have significant consequences for the individual case of employed persons insofar as the law concerning dismissals is part of the collective labour law, primarily in connection with keeping loyalty-obligations. As a result from participation in the persuit of denominational aims acceptance of doctrine as well as an appropriate way of life may be demanded to a certain degree.

Employees who have to do their work on legal holidays have the right to spare-time in order to fulfil their religious duties provided it’s compatible with the enterprise’s requirements. This right is granted independent of whether the employee concerend is a member of a legally recognized community or not.

1994 the Supreme Court was dealing with the case of a muslim employee who had been dismissed owing to his daily worship using a carpet for praying and other religious objects in the presence of other employees. He was also charged with having left the business before closing time in order to go to the mosque on Friday evening, without taking into consideration working instructions. The Supreme Court stated that such a behavior was disturbing the planned distribution of labour working and irritating the co-workers who were holders of the fundamental right to religious freedom in the same way.

Though the Supreme Court, as it should be, spoke about the positive and the negative aspect of religious freedom, it is not comprehensible that being confronted

33 OGH 13. 8. 1996, 2 Ob 2192/96, EvBl. 1997/1 seqq. = ecolex 1996, 858. 34 OGH 30. 1. 1996, 1 Ob 623/95, SZ 69/20.

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with the described forms of worship would be an unreasonable demand for the other employees.

Another legal field that is to be mentioned in the labour law context is employment of foreigners. According to sect. 2 para. 1 of the Act concerning the Employment of Foreigners within the Federal Territory it is not to be applied to foreigners as far as their pastoral work within a legally recognized church or religious society is concerned. As it is set forth in the explanations there doesn’t exist a reason for giving working permission to that group of persons in the view of the labour market. While the explanations mention among others also teachers of religious education and advisers in religious affairs the administrative practice is prefering a narrower interpretation. That’s why there exist real actual problems concerning Islamic women who want to work as religious instructors.

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ADMINISTRATIVE AND FINANCIAL MATTERS – THE SITUATION IN BELGIUM.

Marc TYSEBAERT

Counsel general, Ministry of Justice – Directorate general legislation and fundamental rights

Introduction.

Belgium has a complex institutional structure, with federal, community and

regional levels. This makes the legislation somewhat difficult. In this overview will I try to give you the headlines of the legislation that applies on the different levels, without however entering into detail.

1. Fundamental constitutional principles

Before I can go into the core of the administrative principles that regulate the

relation between the public authorities and the religious or non confessional authorities, it is necessary to explain some of the constitutional dispositions in Belgium, that apply to this matter.

The first observation we have to make in this domain is that the constitution in Belgium remains silent on the relationship between the church and the state and there are no explicit rules that state whether there is a state religion nor that the state is completely laic.

Generally speaking we can say that in Belgium, outside the freedom of religion and conviction, which is protected as well in the positive ( no one can avoid you to adhere to a religion and to practice it ) ( article 19 and 20 of the constitution ) as in the negative way ( no one can be obliged to adhere or to practice a religion or a conviction ) , there is a regime that can be called as a positive neutrality of the state in religious matters.

This means that the state is tolerant and neutral vis-à-vis of the adherents of a religion or a conviction and that the citizenship and religion are totally independent. The freedom to adhere or to practice an religion or conviction is free as far as the generally applicable laws concerning public order and criminal laws are respected.

Related to this aspect it is also forbidden to scrutinise on the basis of religious or philosophical conviction and that in the time that the military service was obligatory, you could object on the basis of your conviction and go for a civil service instead. The latter rule is due of the abolition of an obligatory military service out of use.

Article 21 of the Consitution goes as follows:

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“ The State has no right to interfere in the nomination or the installation of ministers of any religion or to prohibit them to have correspondence with their authorities nor to make the documents of those authorities public, in spite of the limitations that are foreseen by the general applicable responsibility on the use of the press and publicity. “ The main principle that is of an interest in this presentation is the one on the non

interference in the nomination and the installation of a minister of a religion, as it is confirmed in article 21 of the constitution.

We will see further why this is one of the key issues in the relation between the state and the religious authorities, because of the article 181 of the Consitution.

The first lines of the above mentioned article 21 mean that the religions and convictions have an organisational autonomy. This principle is also binding for the judge who could be called to make a decision in a case where a minister of a religion has been revoqued by his authorities, accordingly to their proper rules.

He can not pronounce himself about the opportunity of a decision, about the equity of a clerical decision neither can he examine the internal legal basis for it. We however see a tendency that judges are checking those decisions against the general principles that apply in the civil code concerning the responsability of non contractual obligations.

So now let us have a look to the other article of the Constition I already mentioned i.e. article 181.

This article is subdivised in two paragraphs, the general wording being however the same, which means that the salaries and the pensions for the ministers of a recognised religion and the one of the delegates on the organisations that are recognised by law and that provide non confessional ( laic ) assistance to persons, are foreseen in the annual budget of the federal State. In clear this means that the salaries and pensions are paid by the State and in particular by the Ministry of Justice.

The annexe number D gives an idea of the budgets that are planned for the year 2009.

It is important to note that this article retains the notion of recognition. We will examine that in a few moments. As Belgium is a federal state, we also have to mention the special law of august

198O, last modified by the special law of 13 July 2001. We call it a special law because the same majority ( 2/3 of the whole Parliamentary Assembly and the same quorum in each linguistic group ) in Parliament is needed to modify, it as for the Constitution. This law is regulating the different competences of the federal state at one hand and the community/regional level on the other side.

In 2001 it was decided to regionalise the competences on the temporal affairs concerning the recognised religions and only the payment of the salaries and the pensions of the ministers would stay federal ass well as the initial competence of the recognition of religions or philosophies that do not have a religious character.

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You will note that this law only uses the wordings of the recognised religions, but that is due to the fact that the first recognition ( the one of the laic movement ) on the basis of article 181, §2 of the Constitution only came after that the regionalisation law passed ( law of 21 June

2002 ) and therefore it was not integrated.

2. The recognition process and its consequences.

2.1. General I have to recall that we have the liberty for religion, thought and conviction in

Belgium. This means that everyone can organise in free way a religious group or a philosophic group, as far as the law and the freedom of others are respected. I will deal later with religious minorities, but in general they are also free as far as they are not exercising dangerous practices and as far they do not violate criminal law.

On the other hand religious groups or convictions can be recognised in Belgium by the public authorities, which goes with a number of benefits.

The question to make an application or not for recognition is left over to the particular group. When they do not want do obtain a recognition, they can always organise as a foundation or a organisation with no profitable aim. 2.2. The recognition.

As well we find The notion of recognition is found as well in the article 181 of the Constitution and in the law of 4 march 1870 on the temporal of the religions, which means in clear the financial and material aspects of a religion.

The recognition of a religion or conviction is the competence of the legislator on the federal level, that is the Parliament.

When a group wants to obtain the recognition of the authorities they have to introduce an application, which will be accompanied by a file, providing documentation to prove that they respond to the administrative jurisprudential criteria for recognition.

The normal way is to send the application to the Minister of Justice and the administration will then examine the file and eventually ask for complementary information, if that should be necessary.

The conditions for recognition ( actually they are not in any law but consist of administrative jurisprudence ) are the following:

a) An important number of adherents ( the figure is not fixed and its is to the religious group to determine who they consider as adherents ):

( at least a number of 15.000 is to obe observed ) b) Having the capacity to organise themselves into a single representative body

that will entertain the relations with the public authorities ( this body must emcompass a majority of the civil society in that religion or conviction ). The representative body does not have legal capacity. Their main mission is to propose the ministers of their religion or philosophy ( as they are according to the article 19

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independent and, even if the State pays their salaries they are not considered as personnel of the State ), to deal with financial matters of the local communities and to make proposals for the recognition of such communities.

c) Being present in the country for a certain amount of time ( there must be a certain stability in the presence and organisation;

d) Presenting a social interest ( it is examined if the religious group or the conviction can add a service to the public and if they really respond to the need for that religion or conviction of the population or a sufficient part of it );

e) Not being involved in activities that are contrary to social order ( generally public order and security are the criteria on which will be focused ). The examination can not contain a judgement on that particular religion or

conviction, nor assert its rules. If the results of that examination are positive a bill of law will be submitted to

Parliament and a law will then enact the recognition. In the case that no positive request can be given, the Minister of Justice can

make a decision that will be open for an appeal by the Council of State ( administrative Court in Belgium ).

As its has been pointed out above, the regions also have a competence in this domain and so by a Cooperation agreement of 4th. Of may 2004 between the federal Government and the different regional governments ( Flanders, Wallony and Brussels capital region ) that are competent in this field, there will be previous consultation with them.

Once the law is passed, the particular religion or conviction is recognised and that decision is binding to all the authorities.

A copy of the law will be sent to all the concerned authorities. Nowadays the catholic, protestant-evangelic, orthodox, Israeli and anglican

religion as well as islam are recognised in Belgium. The non confessional movement or laic movement is also recognised while the

recognition of the bouddhist philosophy is under examination.

2.3. Consequences of the recognition. 2.3.1. On the federal level. 2.3.1.1. Salaries and pensions.

The recognition implies that the salaries and later he pensions of the ministers

of that religion or conviction will be paid by the federal state. The religions are however not free to fix the amount of salary, and the law of

2nd. of August 1974 is enlisting all the functions that exist in the different religions and convictions and the according wages.

( a table that provides the exact salaries that are paid at the actual index of the cost of living is in annex D).

When a new religion is recognised their salaries and functions will be integrated in that law and the negotiations will be conducted with the representative body.

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The recognition will not have automatically for effect that the salaries will be paid immediately nor that all the ministers of a recognised religion will be paid. ( in order to maintain the budget within certain limits of growth, a multiannual scheme can be agreed between the State and the religious authorities. )

Further on the payment is only granted for functions that serve to the public, and not for example priests who are in a convent ).

The payment of the salaries is also subject to the recognition of local entities ( parishes ) by the regional authorities. When they recognise the local structure, that recognition will have the effect that a number of places will be fixed and then accordingly paid by the federal state. Therefore there will be discussions in the framework of the Cooperation agreement I already mentioned and with the representative body, wich has also to take into account the federal budget.

As a summary you can say that the negotiations are conducted on two levels, between the civil authorities and the religious authorities at one side and between the different levels of civil authorities at the other.

Actually the number of places that is ,paid by the federal state is presented in the annex number D ( the figures are maxima ).

Though the salaries are paid by the Government, there is no working relation between the State and the ministers of the religions or delegates of the laic movement. Their labour situation remains between them and the religious/philosophic authorities.

The only exception are the chaplains in the army, who have the status of officer and are submitted to the minister of defence.

With the exception of the catholic religion, for which the number of the total population of the country was taken into consideration to determine the number of places ( as a compensation for the concordate under Napoleon ), the other number of places is fixed upon the number of adherents while the number of delegates of the laic movement has been determined by separate negotiations and was in 2002 initially fixed in the course of the discussions on the bill of law ( maximum 354 ).

The basis is for negotiation with the representative body and in function of the number of adherents of that particular local entity.

the attribution of a place of minister is the number of adherents: - catholic religion : 600 for the first place, second place as from 1400 and further places for each part of 3000 inhabitants; - protestant – evangelic: First place 600 adherents and a second place from 1000 adherents; - Anglican : 1 place from 250 adherennts: - Israeli : 1 place from 600 adherents and a further one from 1000; - Orthodox: 1 for a parish with at least 200 adherents; - For the islam the numbers are 1 imam for a mosque between 250 and 500 adherents, 2 imams for a mosque between 500 and 1500 adherents and 3 imams when there are more than 1500 Adhrents; -The laic movement has 50 delegates for the federal secretariate,

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7 per provincial establishment ( 12 establishments ) and 5 per local service ( 44 services ). 2.3.1.2. Representatives in prisons.

The second implication on the federal level is that the recognised religion or

conviction will have the right of a certain number of representatives in the state prisons ( salaries paid by the minister of Justice ), in the army ( salaries paid by the minister of defence ), in the hospitals ( social security or

privately paid or working on a voluntary basis ) and in the ports, airport and fishing industry ( paid by the minister of transport or agriculture ).

2.3.1.3. Tax advantages.

Though the local communities are subject to recognition by the regional level (

as explained hereafter ) there are on the federal level some advantages on the tax level which I describe here:

- exemption from registration rights by transfer of immovables; - diminution for the registration right when donations are done by people alife; - same diminution for legacies they receive; - exemption of value added tax; - exemption on the tax on the goods affected for the exercise of the religion or

philosophy.

Non recognised religious can when they take the form of an association without profitable aim obtain by a decision of the Ministry of Finance, the same benefits.

2.3.2. Consequences on the regional level. 2.3.2.1. General.

Due to the fact that the regional level has taken over since the special law of 2001 a great number of competences of the federal level, the most consequences are to be found in their field of activities.

As the regions have autonomy they also have somewhat different legislations on the religious matters.

2.3.2.2. Other consequences. a) Recognition of local entities.

The regional level is competent for the recognition of the local entities, i.e. the parishes or comparable level.

I refer to what was said above on the consultation process.

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The recognition will only take place as far as the concerned religion or philosophy has put up the local structure that is called the administrative board.

The structure for different religions can vary slightly accordingly to the regional legislation that applies.

This recognition has some consistent financial consequences: aa) The above mentioned structure ( board of administration ) obtains legal

personality with the recognition; bb) Accordingly to the organisational structure of the religion ( at provincial or

community level ) the province or the commune has the obligation to cover the deficit in the budget of the administration of the local entity as far as they are considered as normal ( meaning necessary for the exercise of the religion or philosophy ) and to cover the costs of the maintenance of the buildings used in the framework of a religion or philosophy;

cc) The province or the commune has to provide a house or the equivalent amount in money for the principal minister of that religion ( so not for every person )( the above rule does not apply on the delegates of the laic movement );

dd) The regional level will have to provide the budgets for construction, restauration or maintenance of the buildings used in the frame of the religion or

philosophy, this can vary from 30% up to 100%, very often communal level, province and region take each a part of the investment;

ee) The competent authority has to approve the budget and the accounts of the local entity and can eventually make observations without being able to question the depenses necessary for the exercise of the religion

( for the laic movement this competence remains at the level of the minister of justice ).

ff) The different administrative authorities exercise an administrative supervision on a number of decisions made by the board of administration as there are to buy or sell immovables, to rent out land they own, to accept legacies, to invest money they possess, to proceed for construction or renovation works.

We will explain the general way of this supervision further on. b) The recognised religions and philosophies have a right to broadcast special programmes on radio and television; c)The recognised religions and philosophies have the right to organise their own schools as far they respect the legal provisions concerning the education programmes ( subsidies can be given ) and have also the right to organise lessons on their religion or philosophy in the public schools ( teachers being paid by the regional minister of education ).

It has to bet noted that the education system in Belgium is in general divided in the schools and universities organised by the public authorities and those organised by a religion or philosophy. Concerning the second option, the network organised by the catholic church is by far the largest and is attended by a majority of scholars.

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They also run the largest network between universities and highschools. There is no difference between the costs that a certain choice may cause.

3. The administrative supervision.

As this lecture aims to give a general approach, I will not enter into the details

concerning the chapter of administrative supervision. In general the supervision exists in order to allow a higher administrative authority to balance whether a decision of a submitted authority is respecting the law, the foreseen procedures and the general interest. The field of action of a supervising administration is larger than that of a judge in court.

Generally there is a distinction between the general supervision that is foreseen by the general laws ( provincial, communal legislation ) and the specific supervision that is enacted in specific laws, decrees or other equally binding provisions.

The measures catalogued under the general supervision are suspension and cancellation of the decision of the submitted authority.

Concerning the religions and philosophies the general supervision can be exercised vis-à-vis every decision where no preliminary steps

( advise, approbation ) by higher administrative authorities apply. In practice this means that decisions that do not exceed a value of 10.000 EUR. remain under this supervision. In this case the governor of the province can suspend or cancel a decision, normally within 40 days after a copy of the decision has been transmitted.

The specific supervision contains measures such as advise, authorisation, approbation.

All decisions that are related to the financial administration ( annual budget, accounts ) of the recognised religions and philosophies are subject to the specific administrative supervision, as well all other decisions that have an estimated value of over 10.000 EUR.

Generally the higher religious or philosophic authority ( bishop, competent representative body ), according to the decision the commune

or the permanent deputation of the province have to give advise and the governor of the province or the regional administrative authority ( generally the minister of interior ) do have to approve, by decree the decision made.

Concerning the philosophies the federal minister of justice remains competent. At last we know the compulsory supervision. When the administrative

authorities have formulated remarks or observations concerning the functioning of the local board of administration ( for example they asked to enact a certain amount in the budget and this was not done ) and when there is no follow up given to those observations, the higher authority can appoint a delegate ( commissioner ) who will then represent the lower administrative authority and force the decision.

As this is of course a very drastic measure, the limits within such a decision can be taken are set out by the jurisprudence.

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4. Minority religious or philosophic movements.

As I already mentioned religious groups and philosophic movements are free to

organise themselves, to exercise their opinion and make propaganda for it. However it is clear that the legal provisions must be respected in all ways and

that the exercise of the religious freedom does not affect the society in general or the dignity of the individual.

As a result of judicial inquiries concerning some “ Satanic “ movements, the Parliamentary inquiry commission was created and submitted it’s conclusions and recommendations to the Government in 1997.

As a result of those recommendations the law of the 2nd. of June 1998 was passed creating an Information and advisory Centre concerning harmful cults and the Administrative coordination Cell concerning harmful cults.

Interesting is that the article 2 of that legislation provides us with a definition of what should be understood by a harmful cult.

Is considered as such, a group with a philosophic or religious aim, or pretending being such a group, and which in it’s organisation or practices, conducts illegal harmful activities, does harm society or the individual or does not respect human dignity.

On the jurisprudence of this article there is actually none at my disposal. The activities of the Information and advisory Centre are: - to study the phenomenon of harmful cults; - to organise a documentation centre accessible for the public; - to welcome the individual who seeks for more information and eventually to

inform him/her how he/she can exercise his/her rights: - to inform public authorities and to formulate recommendations concerning

their policy towards harmful cults. The Centre is depending of the Parliament, but personnel and budget for their

action are foreseen in the budget of the Ministry of Justice. Their reports and advices can be consulted on their website. In order to have a body that when necessary can interfere immediately ( it already did so successfully in the past ) and that can also coordinate the

actions of the different Governments concerning harmful cults, the Administrative coordination Cell was created by the same law.

The body is not permanent and can vary accordingly the actions undertaken.

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5. Conclusion. At the actual moment the system in Belgium is functioning in a satisfactory

way, but the annual cost on the federal budget, despite the relative low salaries, is important.

The development in recent years, with the installation of local communities of the islamic religion, the development of the laic movement and the actual pending request for recognition of the Bouddhist philosophy, illustrate the necessity for the Government to question the actual system of funding religions and philosophies.

The former minister of justice has created a Commission to make proposals for the future ( report is on the website of the Ministry ) and those will now be examined further on.

The question of funding on itself is not relevant, but the main options are to continue and to increase the budget necessary in order to adapt the salaries or to give to the recognised religions and philosophies a fixed amount of money, that they can then use for their personnel.

The remaining question is if that can be realised without modifying the Constitutional basis that actually regulates the system.

The Minsiter of Justice recently has submitted a decision to parliament to create a working party that will do the follow up of the former Commission and will to submit a coordinated draft law on the federal level by December 2010.

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ANNEX A.

List of legislation Consitution ( articles 11, 19, 20, 21, 24 and 181 ); Special law of 13th. of june 2001 regionalising some matters ( in particular

article 4 concerning the recognised religions ); Special law of 21st. of july 1844 relatively on civil and ecclesiastic pensions; Province law of 30th. of april 1836; Law of the 4th. of march 1870 concerning the temporal of religions; Law of 19 th. of July 1974 holding recognition of islam: Law of 2nd. of August 1974 concerning the salaries of some public officers and

of the ministers of religions and the delegates of the laic movement: Communal law of 24th. of June 1985; Law of 2nd. of June 1998 creating the Information and advisory Centre on

harmful cults and the Administrative coordination Cell concerning the struggle against harmful cults;

Law of 21st. of June 2002 holding recognition of the non confessional movement ( laic movement ) and fixing the statute of their delegates;

Law of 20th. of July 2004 creating a Commission on the renewal of the representative bodies on islam;

Decree of the Flemish Parliament of 7th. of May 2004 concerning the material organisation and the functioning of recognised religions;

Decision of the Walloon Government of 27 may 2004 holding codification of the regional legislation on local administrations;

Decision of the Council of Brussels Capital region modifying the imperial decree of 30th. of December 1809 on church administrations;

Royal decree of 26th. of April 1996 concerning the financial compensation for accidents occurred on the work or on the way to/from work for all ministers of recognised religions and for the delegates of the laic movement;

Royal decree of 8th. of November 1998 concerning the organisation and the functioning of the Information and advisory Centre on harmful cults as well of the Administrative coordination Cell;

Royal decree of 3th. of may 1999 recognising the Executive of the Muslims of Belgium;

Royal decree of 4th. of may 1999 holding acceptance of the members of the Executive of the Muslims of Belgium;

Royal decree of 25 octobre 2005 concerning the statute of de chaplains in the state prisons;

Decree of the Flemish council of 27th. of march 1991 concerning the legal position of the teachers in the free subsidised schools;

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Decree of the Flemish council of 14th. of july 2004 concerning the free choice or the exemption to follow a course of a recognised religion or philosophy in the public lower and secondary level schools;

Decree of the Governent of the French community of 1st. of February 1993 concerning the legal position of the teachers in the subsidised schools:

Decree of the Government of the French community of th. of march 2002 concerning the teachers of religions;

Basic law of 12th. Of January 2005 concerning the legal positions and the rights of detainees in prisons ( amongst them the right of religious or philosophic assistance ):

Decree of the Flemish government of 15th. of october 1999 concerning the conditions, procedure and lasting period to have the right to broadcast religious or philosophic programmes;

Decision of the Government of the French community of 31th. of may 2000 concerning the recognition of representatives bodies that are allowed to broadcast emissions on radio and television;

Decree of the Council of the germanophone community of 26th. of april 1999 on the media;

Law of 20th. july 1971 concerning the cemeteries; Agreement of 27th. of mayl 2004 on cooperation between the federal sate, the

flemish, the wallon and german regions concerning the recognition of religions, the salaries and the pensions of the ministers of the recognised religions, the church administrations and the establishments in charge of the administration of the temporal of the religion.

Decree of the Flemish Government of 30 september 2005 concerning the criteria for recognition of the local administrations of recognised religions;

Ordonnance of Government of the Brussels capital region of 18 july 2002 and 19 february 2004 concerning the administrations on the recognised religions;

Various decisions have been made by the different regional levels and the federal level for the laic movement on the models for budgets and accountancy of the local administrations.

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ANNEX B.

List of representative bodies and dates of recognition of the different religions and philosophies.

Catholic religion.

Recognised by the concordate of Napeleon law of 8th. of april 1802; Representative bodies: the dioceses. Number of adherents: is being subject of a discussion.

Protestant-evangelic religion. For the protestant religion same law as the catholic religion, confirmed by the law of 4th. of march 1870 on the temporal of religions. The evangelic tendency has conducted discussions for a cooperation framework with the protestant religion and was recognised in X. Representative body: The administrative council of the protestant-evangelic religion ( covering also Baptist, Pentecostal movements ). Estimated number: 150.000

Israeli religion. Recognised by the law of 17 th. of march 1808, confirmed by the above mentioned law of the 4th. of march 1870. Representative body: Consistory of Israeli religion. Estimated number: 35.000

Anglican religion. Recognised by the decrees of 18th. and 24th. of april 1835, confirmed by the

above mentioned law of 1870. Representative body: Central comitté of Anglican religion. Estimated number: 20.000

Orthodox religion. Recognised by the law of the 17th. of april 1985. Representative body: Archbisschop – Metropolite. ( covering Greek, Russian, diverse Slavic orthodox tendencies ). Discussions are held about other tendencies. Estimated number: 60.000

Islam. Recognised by the law of 19th. of July 1974. In practice only starting from 3th. of may 1998. ( see special topic ). Representative body: Executive of the Muslims of Belgium. Estimated number: 400.000

Laic movement. Recognised by the law of 21st. of june 2002. Representative body: Central laic council ( Flemish and Francophone sections

are in one body, having however complete independence in their actions. )

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ANNEX C.

Special topic on Islam in Belgium. As you may have noted Islam was already recognised in Belgium in 1974, being

the result of a massive immigration in the sixties from Maghreb countries and Turkey, mainly to provide manpower for the steel industry and the mining sector.

Not having a classical hierarchy as the other religions, Islam had to face organisational problems to propose a representative body to the Government.

Discussions went on for years, until in 1995 the idea grew of the organisation of a general election amongst the muslim community in Belgium.

The first election in 1996 was not a succes. In 1998 the Muslim community in Belgium made a proposal to the

Government, that was accepted. The general elections would necessitate an inscription as a voter and they had to register as member of an community ( Maroccan, Turkish, other nationalities, Belgian coverted to Islam, depending on their origins ).

The candidates would also belong to a certain category. The participants were however on the election day free to vote for everyone. The designation of the representative body would take place in two steps, The first being the designation of a general council of 68 members and those

would amongst them designate 17 delegates in the Executive of the Muslims of Belgium, being 7 Maroccans, 4 Turks, 3 other nationalities and 3 to islam converted Belgians.

The elections were organised in 1998 and around 40.000 people participated. Due to internal disputes the first Executive was not very efficient and a transitional Executive was appointed in 2003.

As there was no agreement between them and the Government on the way ahead, a bill of law was passed to enable a Commission to organise new elections. ( bill of law of 20 th. of july 2004 ).

Those elections were held on 20th. of march 2005 and some 45.000 people did participate, although the Marcoccan community did call for a boycot of those elections.

The new representative body was appointed by royal decree of 7th. of October 2005, but already in 2006 there were problems with the administration of the body and it did not continue after there were conducted searches by the justice.

We now have a new body, but it will mainly have to examine how the future of the representation of the Muslim community will develop.

The actual formula has proven not to be “ the “ solution and alternatives will have to be questioned on their merits

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BELGIUM

304

ANNEX. E. Number of local communities. Catholic religion: ca. 5000 Protestant – evangelic religion : 125 Orthodox religion : 33 Isreali religion : 17 Anglican religion : 10 Islam : 55 ( number to increase in coming years ) Laic movement: 12 provincial establishments and 44 local services. ( numbers to be achieved in 2009 ).

305

LEGAL SETTLEMENT OF THE RELATIONS BETWEEN THE STATE AND RELIGIONS

IN BULGARIA TODAY

Prof. Dr. Ivan Zhelev DIMITROV Director of the Directorate for Religious Affairs, Concil of Ministers of the Republic of Bulgaria

By the development of democratic changes in Bulgaria after 1989 and the

replacement of social-political system are eliminated the restrictions on religious rights and freedom, which are imposed through the former atheistic authoritative regime. So, it starts a process of the reappraisal and return of spiritual and moral values and their integration into the post-communist society. This situation raises a necessity of renovating interrupted connection with religion and the establishment of the adequate legal regulation of the religions’ activity as institutions. This process itself is neither light nor unhindered. Nevertheless, it is a road that the new democratic society of Bulgaria needs to cross. The idea about the things that are under „taboo" still exists during this period in the mind of a large number of the Bulgarians and first and foremost in the mind of the authorities. Although it appears an obvious need of the moral regulator of public morality that is considered to be right the Bulgarian Orthodox Church and religions in Bulgaria on principle, at the beginning of this process nobody dares give scope of the religions in Bulgaria just like teachers of moral and the bearers of public standards and national identity.

Return to faith imposes above all renovating one of the essential elements of the collective right of creed that is the Church social and educational activity, which is forbidden through the former communist regime. During all the period from 1944 till 1991 existing legal regulation does not allow the Church to show its beneficial mission through managing public social and educational work. By the Constitutional decrees from 1947 the Bulgarian Orthodox Church is disestablished from the State. The following Law on Religious Organizations from 1947 allows religions to open theological colleges and faculties for training clergy and other ecclesiastical cadres, and it occurs only by the authorization of the Bulgarian Council of Ministers or its authorized Vice-Chairman as the authorization of corresponding teaching programs is performed through a special governmental instrument (according to Article 14). Considering the Church educational activity amongst the youth, the Constitutional regulation of Article 77 specially decrees that „the State bestows great care upon the social, cultural, work, sports and health education of the youth." On its part the statement of the Article 20 of the Law on Religious Organizations approves and elaborates this Constitutional regulation by unequivocal explicity: „The education and organization of the children and the

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youth are performed by the special cares of the State, and this kind of cares does not belong to the sphere of the activity of creeds and their clergy".

Through the rules of this Law on Religious Organizations, the Church public activity is completely nullified as well. The text of Article 23 forbids religions to open on the territory of Bulgaria missions, orders, charity and other sort of institutions. If there still exist institutions like these then they are closed, and their property turns into the governmental one. In this way, the public activity of separate creeds is totally destroyed.

At the beginning of political changes in the year 1989 and passing the new Bulgarian Constitution in the year 1991 it appears a necessity of the opportune and actual legal regulation that has to regulate religious rights and freedom concerning new social-political circumstances. Right up to passing the new Bulgarian Law on Religion, the situation about the legal regulation of the social and educational activity of religions is rather obscure, and, moreover, it enables misappropriation on behalf of the State.

The Draft Laws that are submitted before the 39th Bulgarian Parliament have the intention to regulate this subject in different ways. But there is a strong ambition of the law-making body to create a completely new basis of religious activity including religious social and educational work, and this ambition finally leads to a fruitful result. After passing the new Law on Religion (which is published in „State Gazette" No. 120 of 29 December 2002), the problems that exist because of this vagueness are overcome in general. According to the decrees of Law on Religion, separate creeds are free, equal in rights and disestablished from the State (Article 4, Paragraph 1). The State is obliged to provide conditions people to practise their own right of religious affiliation free and absolutely, which right, according to the text of Article 6, Paragraph 3 and 7, includes the permission religions to create and manage charity or humanitarian institutions, and to preach and lecture certain creed or religion on the places that are suitable for this purpose as well as to create and manage special educative institutions keeping law order and prescriptions.

The same subject is concerned and regulated in details by the Chapter 5 of Law on Religion, which turns its attention to religious work. Religious medical, social and educational institutions, in contrast to the corresponding text of the former Bulgarian Law on Religious Organizations, are created and operate according to the common law in force in Bulgaria. This statement itself presupposes non-interference on behalf of the Executive.

The Article 30 of the Law on Religion grants the right religions to open institutions which they are capable of accomplishing their social and educational activity through. The only requirement, in this sense, on the part of the same Law is these religions to be in possession of the statute of legal entity in accordance with the rules that are defined by the Legislature. Possessing this statute, they perfectly become a legal object and participate competently in the legal order of the country. The Bulgarian Ministry of Health, Ministry of Labour and Social Policy, and

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307

Ministry of Education and Science just attend the governmental regulation to be fulfilled by the realization of the same work of the respective institutions of separate religions (Article 31). This statement guarantees the observance and fulfillment of general standard, and it eliminates the possibility of wilfulness and unlawful actions on the part of the separate religions, which could contradict to legal system and governmental standardization.

Following the spirit of the principle that is imposed by the Article 6, Paragraph 1 and 2 of the Bulgarian Constitution, which reads that all the people were born free and equal in rights and dignity that means that any restrictions in rights and privileges are forbidden, the Article 32 of Law on Religion decrees the following: „One's receiving into some social or medical institution that belongs to certain creed cannot be bound or depend on the affiliation of the same individual to the corresponding religious community." Therefore, current religious activity in this sphere practically shows that it is impossible any problems to be noticed consid-ering the above mentioned text. If that is the right word, humanity that is a fundamental of all of the world religions prevail any possible selfish interest (even this one of some proselyte).

Speaking about the regulation of the educational activity of different religions, Law on Religion concerns only the question about opening and managing theological school or faculty that are related with certain religion. The parallel question about imposing and teaching the discipline „Religion" into the public schools is directed through special legal instrument of the Bulgarian Ministry of Education and Science.

Although the new Bulgarian Law on Religion is quite better than the former one, the legal regulation of the social and educational activity of religions is not completely advanced and formed. In fact, there are some details that could be changed for the better. But it is a privilege of the lawmaking body. There are made some offers for improvement along these lines by now, and I hope that they be accepted soon.

With regard to certain current opinion that Law on Religion is not harmonized with different European organizations or that it even likely contradicts to the basic international documents on human rights, I would notice the following circumstances.

First and foremost, the new Bulgarian Law on Religion, which is approved by the Bulgarian Parliament 2002 and comes into force from 2 January 2003, is strictly harmonized with the European Convention on Human Rights and Fundamental Freedoms and also with the International Pact of Citizenship and Political Rights as with the guiding recommendations that are noted in the expert report of the Council of Europe in respect to the Draft Law on Religion that is discussed in the former 38th Bulgarian Parliament as well. Besides, contrary to certain wrong statements, it has to be maintained that, in fact, there are plenty of the representatives of religions and non-government organizations who participate in preparing the same Draft Law on Religion. Of course, it does not mean that there

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308

are included experts from all the registered religions (namely 31 at that time), and it is practically difficult this condition to be realized but the Parliamentary Commission on Human Rights and Religion, which is an initiator of the corresponding discussions, takes care and bears the responsibility to include a broad circle of experts and representatives of respective religions. In spite of the existing statements of certain non-government organizations, there is not made such a complaint to the Parliamentary Commission on Human Rights and Religion on the part of some religion that the last likely wants to include its representative into the working group of preparing the unified Draft Law on Religion, which is introduced to the Bulgarian Parliament in November 2002 for final approval, but it is not allowed to do this. This is the same truth and any other explanation is speculative.

Further, I would notice the fact that Law on Religion realizes the right of creed as an absolute, private, inviolable, fundamental human right. Its following is not related just with the right of associating - creating a religious community, participating in the religious community or establishing the institutions of the community. Moreover, there are regulated the different forms of following the right of creed - one's forming and expressing religious conviction, realizing religious training and education. It is guaranteed the freedom of choice, change, practising and following certain creed, which forms could be individual or collective, public or private, by public worship, education, liturgy and rituals. The right of following the creed is not related with a necessary assuming legal statute on the part of respective religious community.

Law on Religion not only determines specifically the cases which the freedom of religion could be restricted in, but it also thoroughly enumerates in Article 8 the ways for it. There is a supplementary guarantee in this sense by provided law order for imposing such a restrictions.

Law on Religion eliminates the regime of discretion as it provides receiving the statute of legal entity on the part of religions to become in legal order. This mechanism guarantees the non-interference of the Executive into the internal organizational course of religious communities. The special regulation of the right of religious associating is harmonized with its specific features. The registration of religious communities is made by Sofia City Court in the public register of religions. The registers of local religious institutions are managed by municipality in accordance with their residence. Their registration is made under the conditions of the regime of notification. The local religious institutions could be registered like legal entity in the County Court by residence as there is such a decision of the religion head office, and since it is provided according to the statute of the same religion.

It is guaranteed the economic independence of religions that possess the statute of legal entity. They are allowed to create or participate in the objects of commercial law, and to create legal entity with non-profit aim as well as to open

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medical, social and educational institutions. Law on Religion defines the rules of the work of this kind of institutions, too.

The new Law on Religion contains the decrees of restitution that give a possibility the property of religious lands to be recovered, which are deprived during all the period 1944-1989. It is regulated the role of the State in its relations towards religious institutions. The State provides conditions for free and unhindered following the right of creed, it also contributes to be kept the tolerance and the respect of the believers from different religions amongst themselves as well as this one between the believers and atheists. It is inadmissible the State to intervene in the internal organization of religious communities and institutions. The religious communities are disestablished from the State, indeed.

Also, there is a regulation of the powers of the Bulgarian Council of Ministers and its Directorate of Religious Affairs. The Cabinet's Directorate that is specialized administration turns from controlling organ into the consulting and co-ordinating one. Its main functions are to give assistance to religions and to guarantee that religious rights are observed.

The State and Municipalities are capable of helping religious institutions and their local departments giving them free the right to use governmental or municipal properties, subsidies, many sorts of relief such as tax, credit-interest, customs, and other financial and economic one. Although there are many other possibilities for helping religions in this sense, and they are already discussed by the governmental administration in order some revisions of Law on Religion to be proposed, even existing rights and powers are huge.

Besides, the Law on Religion revokes the discriminating Article 133A of the Bulgarian Law for Persons and the Family, which gives a possibility the executive to judge by expediency which exactly corporations and foundations with religious and educational activity to be registered like legal entity with non-profit aim. In this way, it is absolutely guaranteed the right of association of the Bulgarian citizens.

Within one month after delivering the register of qualified religions (January 2003), Sofia City Court registers automatically again (February 2003) all the existing religious communities. What I insist to underline is that this procedure does not prevent any foreign minister of religion from receiving entrance visa or permission for a long-term stay in Republic of Bulgaria.

All of the above mentioned circumstances are submitted in an unprejudiced way, or, at the very least, the real state of affairs is not exaggerated here. Of course, there could be seen one's mistakes and failings but I declare on my responsibility that this kind of mistakes do not proceed from dishonest and premeditated treatment on the part of the Government. In the presence of rectitude and benevolence, all the problems are easy to be solved in the name of the prosperity of our country and all of the believers from separate religions in Bulgaria.

310

RELIGIOUS FREEDOM AND STATE IN THE CZECH REPUBLIC

Jakub KŘÍŽ

Deputy Director Department of Churches, Ministry of Culture

I. After the communist party took over the government in Czechoslovakia on

February 25th 1948 a repression politics against churches and religious communities became one of the substantial attributes of the new totalitarian regime.

However the communist government was aware of the facts, that churches were supported by significant part of population. That’s why the repressions were presented like liberalization of churches from unnecessary troubles that are not directly connected with their mission. With this argumentation all income-generating property of churches was confiscated and the churches were financially fixed on the state support. With the Act on the Economic Securing of Churches and Religious Societies by the State (Act no. 218/1949 Coll.) accepted in 1949, the state enforced to the churches the system of full economic dependence on the state funding. On the same day (14th October 1949), the parliament accepted another acts closely connected with church repressions; one of them was Act no. 217/1949 Coll. which established a State Office for Churches Matters. Although this State Office didn’t have the position of ministry, the chairman of the office was appointed by the president of the republic on the proposal of the government, which is a confirmation of its strong position. The main aim of the State Office was to take care on the religious life, if it is not in conflict with people’s democratic state system. This State Office controlled a large red of so called “churche secretaries” who were responsible for church politics on the level of regions and districts.

II.

After the 1989 democratic change, the State Office for Churches Matters was dissolved and since than the competence in the field of religious freedom and churches matters was entrusted to the Ministry of Culture.

According to the rules of organization of the Ministry of Culture the agenda of the matters of churches and religious communities is entrusted to the Department of Churches. In comparison with the totalitarian State Office for Churches Matters, the Department is very small. It has altogether 11 employees. The agenda of the department consists above all of these activities:

- proposing the conception of churches – state relations, - preparing legislative proposals in the area of religious freedom and of churches and religious societies,

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311

- registering new churches and religious societies and carrying the list of the legal persons established by churches, - provides financial support of the churches and religious societies.

III. Extensive religious freedom, freedom of confession and conscience, and also

the autonomy and self-government of churches, enabling the free development and activities of churches and religious societies, has existed in this country ever since the birth of the Czechoslovak state in 1918. Ever since the days of the Masaryk republic, the Czechoslovak Republic, and later also the Czech Republic, have adopted a non-confessional approach to churches and religious communities. Freedom of confession and full religious freedom for activities of churches and religious societies were guaranteed by the Constitutional charter, introduced by Act No. 121/1920 Coll. Following periods of submission and persecution of churches and religious societies under Nazi and communist totalitarian regimes, the principles of religious freedom and the non-confessional attitude of the State were upheld once again by the Czechoslovak Republic after 1989. The Czech Republic is continuing in this trend; the standard of religious freedom in the Czech Republic has been evaluated as very high.

The Charter of Fundamental Rights and Freedoms, defining the non-confessional (neutral) approach of the State to the churches, and guaranteeing full freedom of religious faith and the freedom of the churches to administer their matters independently of government authorities, was first adopted in 1991 as a Constitutional Act No. 23/1991 Coll and for the independent Czech Republic adopted by Constitutional Act No. 2/1993 Coll. The neutral approach of the State to the churches is prescribed by Article 2 (1), which says: Democratic values constitute the foundation of the state, so that it may not be bound either by an exclusive ideology or by a particular religious faith. This provision is understood in that meaning, that the state cannot be bound not only by a particular religious faith but also by atheism or ideologies hostile to religion.

The Charter of Fundamental Rights and Freedoms is the most important legislative act guarantying the religious freedom. The provision of Articles 15 and 16 say:

Article 15 (1) The freedom of thought, conscience, and religious conviction is

guaranteed. Everyone has the right to change her religion or faith or to be non-denominational.

(2) The freedom of scholarly research and of artistic creation is guaranteed. (3) No one may be compelled to perform military service if such is contrary

to his conscience or religious conviction. Detailed provisions shall be laid down in a law.

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Article 16 (1) Everyone has the right freely to manifest her religion or faith, either

alone or in community with others, in private or public, through worship, teaching, practice, and observance.

(2) Churches and religious societies govern their own affairs; in particular, they establish their own bodies and appoint their clergy, as well as found religious orders and other church institutions, independent of state authorities.

(3) The conditions under which religious instruction may be given at state schools shall be set by law.

(4) The exercise of these rights may be limited by law in the case of measures necessary in a democratic society for the protection of public safety and order, health and morals, or the rights and freedoms of others.

IV.

The basic right on individual religious freedom and the right of the churches to administer their matters independently of government authorities is implemented by the Act on churches and religious societies. The first one after the 1989 change of regime was adopted in 1991 as an Act No. 308/1991 Coll. This Act together with Act on Registration of Churches and Religious Societies No. 161/1992 Coll. stipulated the procedure for the registration of churches and religious societies and defined registered churches and religious societies as legal entities which can freely establish their own bodies, religious orders and other institutions as juridical persons. However this legal regulation was considered inconvenient concerning small churches and religious societies. For a registration – and recognition as a legal entity – the church or religious society had to submit supplicant with 10.000 signatures of its members.

A new legislation was prepared and adopted as an Act No. 3/2002 Coll. With several changes, this Act is valid till today. While it was presented as a step in the direction of broader religious freedom, the churches itself denied this Act.

Act No. 3/2002 Coll. depressed the number of signatures necessary for a registration of new church to 300. It divides registered churches into two categories: “only” registered churches and churches with “special rights”. To obtain the special rights, the church or religious society must exist at least 10 years as a registered church or religious society and have to present a petition with about 10.000 signatures.1 Among the so called “special rights” we can find these ones:

- to teach the religion on state schools, - to act in army, prisons etc., - to be financed from National Budget, - to celebrate marriages with an effect into civil law, - to establish church schools, - to preserve secrecy in the cases of confessions and similar.

1 Exactly it is 0,1 % of the population of Czech Republic.

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The most problematic part of the Act was found in the fact that it limited the church autonomy in administer their matters independently of government authorities and in establishing its own bodies as legal entities. With this argumentation a group of senators proposed the Constitutional Court to enounce the conflict of the Act No. 3/2002 Coll. with the Constitution and Charter of Fundamental Rights and Freedoms. The Constitutional Court derogates several provisions of the Act.

V. Unresolved issues inherited from the totalitarian era and pertaining to relations

between the State and churches include redress of confiscation of church property by the communists and resolving the manner of financing of churches. Since the 1990s, there have been attempts to remedy the injustice committed against the churches and religious societies by the totalitarian regime. On the basis of the “enumeration law” (Act No. 298/1990 Coll. and Act No. 338/1991 Coll.), the government has succeeded in surrendering but a fraction of church property, especially the immovable property of religious orders and congregations of the Roman Catholic Church. The “enumeration law” was in fact a list of about 150 buildings restituted to the Catholic Church. The quoted legislation resolved the pressing need of remedy of property injustice only to an unsatisfactory small degree. Currently there is an ongoing intensive debate on the settlement of State and church and religious society relations and on a new policy of State financing of churches and religious societies, taking into account the necessity of redressing the property-related damage incurred. The governmental Commission for the Amendment of Relations between the State and Churches and Religious Societies was established in 2007 to prepare, on the basis of a dialogue with the churches and religious societies, a way of resolving these issues. The legislation which was being drafted combines the return of the required part of movable and immovable property (especially to religious orders, congregations and societies of consecrated life) with financial compensation for such property that will probably not be returned. This solution was accepted by all churches financed from the National Budget.

However, in the Parliament debate, the Bill was blocked by opposition and three coalition MPs. The Lower House established its own commission to find a solution.

There are also another up-to-day legislative topics. One of them is an intention to amend the Act on Churches and Religious Societies. The Department of Churches initiated discussions with concerned parties, such as churches, religious societies, charities, deaconesses. The aim of these discussions is to identify key areas for amendment of the Act.

Another unresolved topic is the treaty between the Czech Republic and the Holy See. Czech Republic still does not have a treaty with the Holy See. Although this

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treaty was signed in 2002, its ratification in the Czech Parliament was not successful. The present government has the aim either to undergo the ratification process once more or to arrange a new treaty. Nevertheless no steps has been

VI.

Activities derived from the extensive influence of religion can be developed freely in the Czech Republic. The good collaboration between the State and the churches is evident in a number of spheres. The State enables the churches to develop, besides their basic spiritual services, a number of useful activities in key areas of public life. An important role is played by church schools, by religious instruction in schools and care of children and youth. Churches and religious societies are entitled to teach religion as an eligible subject in all schools founded by the regions, the municipalities, or the State, while in schools founded by churches and religious societies religious instruction is usually an optional subject with ethics as an alternative; private schools have full freedom to make independent decisions on religious instruction. The churches and religious societies which have been authorised to do so in accordance with the Act on Churches and Religious Societies, can establish church schools accessible to all students irrespective of their faith (there are different types of church schools – nursery, primary, secondary and institutions of higher education).

Cooperation within public institutions, based on agreements between individual public administration authorities and churches and religious societies, is reflected favourably in spiritual services provided to the Army of the Czech Republic and to the Prisons Administration. The clergy of different churches providing such services cooperate closely. In health-care facilities and social services institutions, spiritual services are provided only on the basis of the constitutionally guaranteed right to freely manifest the religion.

Churches and religious societies are the most significant source of charitable activities in the Czech Republic. Charity and diaconate institutions established by churches provide broad-based care, charitable, social and health-care services and cooperate with the State in the fields of social and other care services.

VII.

According to the last census in the Czech Republic in 2001, there are more than 3,290,000 followers of different churches and religious societies out of 10,230,060 inhabitants. The largest church in the Czech Republic according to the number of followers is the Roman Catholic Church followed by the Evangelical Church of Czech Brethren; the third largest is the Czechoslovak Hussite Church.

In the Czech Republic there are currently 30 registered churches and religious societies and two federations of churches and religious societies. Of this number, 17 churches and religious societies are financed from the National Budget, pursuant to Act No. 218/1949 Coll. on the Economic Securing of Churches and Religious Societies by the State, and to Act No. 3/2002 Coll. on Churches and

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Religious Societies; the remaining 11 receive no State funds. The State contributes to the salaries of the clergy and salaries of the administrative staff, to their social and health insurance, and to the material cost and maintenance of church property. Other activities (e.g. school activities, social services etc.) of the churches and religious societies are supported by a similar way like the activities of other NGOs. This support is not considered as a support of churches but a support of special activities.

List of registered churches and religious societies (stand on July 2008)

1. Churches and religious societies registered according to the Act No.

308/1991 Coll. (In the brackets you can find an official Czech name and a date of registration or reception.) Apostolic Church (Apoštolská církev, 1989) Brethren Baptist Union (Bratrská jednota Baptist, 1951) Church of Seventh-day Adventists (Církev adventistů sedmého dne, 1951) Brethren Evangelical Free Church (Církev bratrská, 1951) Czechoslovak Hussite Church (Československá církev husitská, 1920) The Church of Jesus Christ of Latter-day Saints (Církev Ježíše Krista Svatých

posledních dnů, 1990) Greece Catholic Church (Církev řeckokatolická, reception from Austria-Hungarian

monarchy) Roman Catholic Church (Církev římskokatolická, reception from Austria-

Hungarian monarchy) Evangelical Church of Czech Brethren (Českobratrská církev evangelická,

reception from Austria-Hungarian monarchy) Evangelical Church of Augsburg Confession in Czech Republic (Evangelická

církev a.v. v ČR, reception from Austria-Hungarian monarchy) Evangelical Methodist Church (Evangelická církev metodistická, 1951) Judaist Federation of Jewish Communities (Federace židovských obcí, reception

from Austria-Hungarian monarchy) Moravian Church (Jednota bratrská, reception from Austria-Hungarian monarchy) Lutheran Evangelical Church of Augsburg Confession in Czech Republic

(Luterská evagelická církev a.v. v ČR, 1995) Religious Society of Czech Unitarians (Náboženská společnost českých unitářů,

1930) Jehovah’s Witnesses (Svědkové Jehovovi, 1993) New Apostolic Church (Novoapoštolská církev, 1956) Orthodox Church in Czech lands (Pravoslavná církev v českých zemích, reception

from Austria-Hungarian monarchy) Silesian Church Evangelical Church of Augsburg Confession (Slezská evangelická

církev a.v., reception from Austria-Hungarian monarchy)

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Old Catholic Church in Czech Republic (Starokatolická církev v ČR, reception from Austria-Hungarian monarchy)

2. Churches and religious societies registered according to the Act No.

3/2002 Coll. Christian Fellowship Church (Církev Křesťanská společenství, 2002) Christian Community (Obec křesťanů v České republice, 2002) Hare Krishna Movement (Mezinárodní společnost pro vědomí Krišny, Hnutí Hare

Krišna, 2002) Czech Hinduism Religious Society (Česká hinduistická náboženská společnost,

2002) Islamic Centre of Muslim Communities (Ústředí muslimských obcí, 2004) Russian Orthodox Churche (Ruská pravoslavná církev, podvorje patriarchy

moskevského a celé Rusi v České republice, 2007) Diamond Way Budhism of the Karma Kagyu Tradition (Buddhismus Diamantové

cesty linie Karma Kagjü, 2007) Vishwa Nirmala Dharma (Višva Nirmala Dharma, 2007) Living God Church (Církev živého Boha, 2007)

Aggregate table of financial support of churches and religious societies from the State Budget according to Act No. 218/1949 Coll. in years 1990 - 1993

in thousands

CZK

1990 1991 1992 1993

Number of clergy 2 363 2 418 2 493 2 478 Salaries of clergy and administrative staff (including insurance) - 127 186 133 207 261 300 Subsidies on material costs of churches and religious societes 18 231 67 928 39 053 107 832 Subsidies on investments (construction of new churches) - - 6 000 6 000

TOTAL 18 231 195 114 178 260 375 132

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Aggregate table of other financial support of churches and religious societies from the budget of the Ministry of Culture in years 1990 – 1993

in

thousands CZK

1990 1991 1992 1993

Churches and religious societes 18 231 195 114 178 260 375 132

Czech catholic charity 38 175 63 631 - -

TOTAL 56 406 258 745 178 260 375 132


in thousands

CZK

1994 1995 1996 1997 1998 1999

Number of clergy 2 578 2 631 2 769 2 898 2 998 3 298 Salaries of clergy and administrative staff (including insurance) 281 267 290 173 421 802 446 475 470 000 549 000 Subsidies on material costs of churches and religious societes 96 132 103 135 69 058 45 164 37 719 36 919 Ecclesiastical historic ladmarks - - 55 000 48 050 36 000 20 913

TOTAL 377 399 393 308 545 860 539 689 543 719 606 832

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Aggregate table of other financial support of churches and religious societies from the budget of the Ministry of Culture in years 1994 - 1999

in thousands

CZK

1994 1995 1996 1997 1998 1999

Support of cultural actiities 4 600 4 660 3 493 4 998 3 081 2 365 Subsidies on elimination of damages caused by flood - - - 3 407 57 099 29 518

TOTAL 4 600 4 660 3 493 8 405 60 180 31 883

Aggregate table of other financial support of churches and religious societies from the budget of the Ministry of Culture in years 2000 - 2007

in thousands

CZK

2000 2001 2002 2003 2004 2005 2006 2007

Support of cultural actiities 1 014 3 101 1 547 2 321 2 276 2 293 2 276 3 200 Subsidies on elimination of damages caused by flood - - - 5 501 - - - -

TOTAL 1 014 3 101 1 547 7 822 2 276 2 293 2 276 3 200

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in thousands

CZK

2000 2001 2002 2003 2004 2005 2006 2007

Number of clergy 3 501 3 480 3 651 3 824 3 941 4 137 4 285 4 389 Salaries of clergy

422 537 462 197

537 282

605 896

639 994

675 963

746 185 873 333

Insurance of clergy

146 336 159 486

185 635

209 577

222 736

236 517

261 086 305 667

Salaries of administration staff 31 798 33 240 32 986 34 000 34 000 34 000 34 000 34 000 Insurance of administration staff 11 004 11 434 11 433 11 776 11 866 11 890 11 887 11 900 Salaries and insurance total

611 675 666 357

767 336

861 249

908 596

958 370

1 053 158 1 224 900

Subsidies on material costs of churches and religious societes 38 833 40 700 40 117 39 700 37 000 33 509 37 000 37 000 Subsidies on the maintanance of eclsiastical property 12 030 24 745 25 300 25 300 23 058 26 491 23 740 23 740

TOTAL 662 538 731 802

832 753

926 249

968 654

1 018 370

1 113 898 1 285 640

320

ADMINISTRATIVE AND FINANCIAL MATTERS IN THE AREA OF RELIGIOUS FREEDOM AND RELIGIOUS

COMMUNITIES – ESTONIA

Ringo RINGVEE Adviser, Religious Affairs Department, Ministry of the Interior

I State agencies

The governmental institution in Estonia responsible for the relations between the State and religions and religious associations has been since 1993 the religious affairs department at the Ministry of the Interior.i In 2004 the post of the Minister of Regional Affairs was shifted to the Ministry of the Interior, and since then the religious affairs department belongs to that minister’s area of responsibility. Currently there are 2 employees at the department. Department’s annual budget for 2008 was 887 636 Estonian kroons (approximately 57 000 Euros).

According to its statute the religious affairs department is responsible for the development of relations between the State (as well as municipalities) and religious associations. The duties of the department include also the responsibility to solve problems concerning economical, social, educational and cultural problems related to religious associations. The Department monitors and analyses the religious situation in Estonia, and provides information on religious situation in Estonia to the interesting parties (officials, media, general public etc).

II Legislationii

The principles of freedom of religion and belief are stipulated in the Constitution of the Republic of Estonia, adopted by national referendum in 1992. The Articles of the Constitution forbid discrimination based on religion or belief (Art 12), and declare the freedom of conscience, religion and thought (Art 40). These rights are considered so fundamental that according to the Art 132 of the Constitution these right can not be restricted not even in the case of emergency or in the state of war. The Constitution stipulates also that there is no state church in Estonia (Art 40).

The first legislative act on religion in the post-soviet Estonia was adopted in

1993. The 1993 Churches and Congregations Act established a general liberal legislative framework for religious associations as legal entities. The legislation did not introduce a multi-tired system that was favored for example by the most influential of Estonian religious associations, the Estonian Evangelical Lutheran Church, but instead the Churches and Congregations Act introduced the principles of equal treatment of religious associations despite their membership numbers or years of presence in Estonia or their impact on Estonian society and culture. The minimum membership requirement for a religious association to be registered in

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the Register of Churches and Congregations was 12 adult founding members, and a statute. It was not necessary for the board members or the clergy to be Estonian citizens. The requirements for board members were that they must have the right to vote in the local elections. This meant at least 5 years residence for a foreign citizen.

In 2002 the Act from 1993 was replaced by a new Churches and Congregations Act. The reasons for the replacement were the changes in Estonian legislation and the shift of the Estonian Register of Churches and Congregations from the Ministry of the Interior to the registrar departments of courts, under the governance of the Ministry of Justice. The 2002 Churches and Congregations Act did not change the general principles of the 1993 Act. The new Churches and Congregations Act was enforced in 2002 with the requirement that the religious associations have to reregister themselves in the Register of Religious Associations at the registrar departments of courts. In 2004 the Act was amended allowing thereby the use of historical names besides of the names congregation, association of congregations or church that were all considered as Christian terms and the compulsory use of one of those terms in the name of an association was considered as a violation of the freedom of religion by the representatives of Estonian native religion. In 2001 there was made an amendment in the Family Law according to which the clergy of registered religious association may obtain the right to conduct marriages of civil validity after the participation of a two day courses and passing the qualifying test. In June 2008 there were 152 clergymen and –women from 19 different religious associations with that right.

In 1995 the Estonian Government established a commission between the Government and the Estonian Evangelical Lutheran Church. In 1999 the commission was reorganized as a commission of experts. One of the outcomes of this commission is the state program “Preservation and Development of Churches” for the years 2004 – 2013, enforced in 2003. In a similar vein in 2008 the State Development Plan for the Historical Natural Sacred Objects by the initiative from the House of Taara and Native Religions (Taarausuliste ja Maasusuliste Maavalla Koda) was enforced.

In 2002 the Estonian Government signed the Protocol of Common Interests with the Estonian Council of Churches, the most influential ecumenical religious organization in Estonia. The field of common interests was found in education, chaplaincy service, restoration of historically and culturally valuable objects, social work etc.

There is one church that operates in Estonia on the basis of international agreement in the form of following notes in 1999 between Estonian foreign ministry and state secretariat of the Holy See. The only exception for the religious associations operating in Estonia on the basis of international agreement is that in the process the statute of the association is substituted by the text of the agreement.iii

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III Currently there are no plans for renewing the current legislation on religion.

IV The registered religious associations are considered as a special form of non-

profit associations. On the basis of the Private School Act that allows non-profit associations (including religious associations) to establish private schools there are two denominational primary schools in Estonia – one belonging to the charismatic Word of Life congregation and the other to the Roman Catholic Church.

All the major religious associations have also their theological institutions for theological education. The oldest of these is the Theological Institute of the Estonian Evangelical Lutheran Church established in 1946. Both the United Methodist Church in Estonia as well as the Union of Evangelical Christian and Baptist Churches of Estonia have their seminaries accredited as institutions of applied higher theological education. Besides of the institutions affiliated with a religious association, there is also Tartu Theological Academy, a private inter-confessional institution of applied higher theological education.

V

The religious community registered according to the Churches and Congregations Act as a religious association is according to the Income Tax Act (Art 11(10)) to be exempted from the income tax. According to the Income Tax Act (Art 27(3)) the donations to non-profit organizations are deductable for individuals up to 5% of their annual taxable income. According to the Land Tax Act (Art 4(5)) the land under the places of worship is exempted from taxation.

According to the Labor Contract Act (Art 7) the labor law is not applied to person conducting religious services if not prescribed by the association’s by laws. The Gender Equality Act (Art 2 (2)) is not applied to persons working as ministers of religion or in the context of professing religion.

VI

Although there are several different perspectives on the religion-state relations in Estonia it could be said on the regard of freedom of religion or belief that the implementation of current policy on religion has been recognized by reports on religious freedom as well as by Estonian officials and experts as successful.iv

The principle of institutional separation of the State and religious associations stipulated in the 1992 Constitution (“There is no state church”) is not interpreted as a strict separation but more as cooperation in the areas of common interests.

None of the registered religious associations gets direct subsidies from the government, although it is possible for religious associations to get special allocations both from governmental as well as from municipal level for different

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projects (for example conservation and renovation of manuscripts or sacred buildings, cultural activities, social work etc).

The salary of the clergy is paid by the religious associations. The only exception is the chaplaincy in the defense forces, prisons and police where the chaplains are members of the staff and employed on the same basis with other personnel.

It is difficult to estimate the amount of money religious associations get from the governmental institutions (incl. local governments’) as direct or indirect subsidies.

The only religious organization getting annual subsidies from the state budget is the Estonian Council of Churches. The Estonian Council of Churches was established in 1989 and has currently ten member churches including the Estonian Evangelical Lutheran Church, the Estonian Apostolic-Orthodox Church, the Estonian Orthodox Church of Moscow Patriarchate, the Roman-Catholic Church, the Union of Evangelical Christian and Baptist Churches of Estonia, the United Methodist Church in Estonia, Estonian Conference of Seventh-day Adventists Church, Estonian Christian Pentecostal Church, Estonian Congregation St. Gregory of the Armenian Apostolic Church, and the Charismatic Episcopal Church of Estonia. In the fiscal year 2008 the allocation was 8,21 million Estonian kroons (526 282 Euros). Such a practice was introduced in 1992, and has remained unchanged despite of the criticism it has occasionally received.

VII

There is no church tax in Estonia.

VIII There is no such system in Estonia.

i The first governmental unit for the religion related issues was formed in 1991, and until 1993 the unit was under the governance of the Ministry of Culture. ii On Estonian legilation on religion see also for example Merilin Kiviorg „Religious entities as legal persons – Estonia“ – in L.Firedner (ed.) Churches and Other Religious Organisations as Legal Persons. Leuven: Peeters, 2007; Ringo Ringvee „State, Religion and the Legal Framework in Estonia“ Religion, State & Society Vol. 36, No 2, 2008. iii RT II 1999, 7, 47. iv International Religious Freedom Report 2007. Bureau of Democracy, Human Rights,

and Labor. U.S. Department of State. Available

http://www.state.gov/g/drl/rls/irf/2007/90173.htm

324

ADMINISTRATIVE AND FINANCIAL MATTERS IN THE AREA OF RELIGIOUS FREEDOM AND

RELIGIOUS COMMUNITIES

Financing Churches and Religious Associations in Finland

Professor Matti KOTIRANTA University of Joensuu

1. Introduction: The sources of income of churches and religious

associations When studying the sources of income of churches and religious associations and

the financial support they receive in Finland, it is today, and in fact has been since 19221, possible to distinguish between three different types of religious communities whose different status under public law regulates their sources of income and the financial support they receive from the State. According to the new Freedom of Religion Act (170/2002 vp), such religious communities are (1) the Evangelical Lutheran Church, (2) the Orthodox Church and, as prescribed by the Freedom of Religion Act, (3) the registered religious communities.

The Evangelical Lutheran Church, the Orthodox Church and their parishes are public associations, whose status is based on the Church Act and the Orthodox Church Act (521/1969) and its supplementary statute (179/1970). On the other hand, in Finland a registered religious association is, however, a special type of community. Its foundation and legal status are enacted in subsection 2 of the Freedom of Religion Act. Such a religious body gains the status of a legal person, that is, it can acquire property, enter into commitments and be a litigant in court and with other authorities once it is entered in the register of religious associations.2 Religious activities can also be practised in the form of an ideological association or entirely without organizing in the form of a legal person. 1 In the old Freedom of Religion Act from 1922 a completely new type of legal person was defined in addition to the Evangelical Lutheran Church and the Orthodox Church, i.e. the "religious community", currently the registered religious community. 2 A minimum of 20 members is required for establishing a registered religious community. In addition, it is presumed that the purpose and the forms of activity of the community correspond to the definition prescribed in the Freedom of Religion Act and that its community order and administration are in accordance with the Freedom of Religion Act. In this respect the regulation complies with the principle observed in Finnish corporation law: according to it an association attains legal capacity once it has been entered into a register concerning the type of association in question. This register is kept by an authority, in this case the National Patent and Register Board. In the Finnish system all legal persons – associations, foundations, limited companies, limited partnership companies and various

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325

The most important source of income of the Evangelical Lutheran and Orthodox churches (and their parishes) is the church tax, which is levied from parishioners on the basis of taxable income in municipal taxation. The levy of the church tax is carried out by the state tax authorities, but the parishes pay a proportion of the taxation expenses. In addition, parishes receive a share of the proceeds of the corporation tax. As far as burials are concerned, the parishes’ share of the corporation tax is linked to the responsibility of the Evangelical Lutheran parishes for the maintenance of public cemeteries.3 The operational expenditure of the central and diocesan administration of the Orthodox Church is paid principally from state funds. In addition, the government has supported some Orthodox parishes and institutions (e.g. monasteries) with state subsidies.

Registered religious communities do not at present receive financial aid from the state for their activities. These communities fund their activities mainly through donations, membership fees and their own fund-raising activities. On 9 May 2005 the Working Group on State Subsidy for Registered Religious Communities of the Ministry of Education submitted its report on the extension of the state’s financial support to registered religious communities besides the Evangelical Lutheran and Orthodox Churches. The working group also prepared a proposal for the implementation of the system.

Since the financial condition and the sources of income of churches and religious associations in Finland are determined by their different status in relation to public law, in the following I shall first give a general description of the taxation system – church tax, real estate tax and corporation tax. In so doing I shall also discuss the central elements of the present system. Secondly, attention shall be paid to the central viewpoints of the report of the Ministry of Education’s Working Group on State Subsidy for Registered Religious Communities (9th May 2005).

2. The system of church taxation in Finland

2.1. Church taxation today

Today the church tax follows in all respects the municipal taxation of a parish

member. The church tax is determined on the basis of taxable income in municipal taxation. The Church’s current share of the tax collection expenses is 4.7 per cent. Even though the grounds for the division of the tax collection expenses between the state, the municipalities, the Church and the National Pensions Institute have been examined from time to time, the situation has not changed. The aim of the Church is to get the tax collection expenses to correspond to the share of the church tax in relation to the total amount of all taxes. Currently the proportional share of

bodies – require the ratification by a state authority in order to gain legal status and legal capacity. HE 204/2002 vp. 3 HE 204/2002 vp.

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the parishes is considerably higher than the share of the municipalities. However, there is no reason for this, since the collection of the church tax is merely a form of a tax on the basis of taxation data originating from municipal taxation. The only ecclesiastical factor is the church tax percentage.

In Finland there has been no consideration of changing the church tax into a ”church fee” (kyrkoavgift) according to the Swedish model.4

2.2. The real estate tax

An old, already mediaeval form of church taxation was based on tithes affecting

landed property and its produce. When collecting these tithes no distinction was made between private persons and associations, but the tax was collected from everyone. The 1908 Committee on the Freedom of Religion distinguished between those ecclesiastical fees which were of a personal nature and those which were paid for real estate. Real estate tithes were considered to be taxes related to public law,

4 A wide reform affecting Church-State relations and the status of religious communities occurred in Sweden in 2000. This reform also affected the State’s financial support to religious communities. The Church of Sweden receives state subsidy as a compensation for taking care of and maintaining church-related buildings and movable property of value to the history of civilisation. In addition, the State supports the Church by collecting the church fee paid by church members in connection with the collection of taxes. Also other religious communities may, with certain preconditions, have their membership fees collected in connection with the collection of taxes, correspondingly to the Church of Sweden’s church fee. Furthermore, religious communities can receive state subsidies for their activities. The fact which associations are accepted within the state subsidy system as religious communities is prescribed by a decree. On a general level the preconditions for receiving the subsidy have been enacted by law. A community that contributes to the maintenance and strengthening of the basic values of society, and is established and viable, can be subsidised. In practice, it is required, for instance, that the activities of the community reach at least 3000 persons and that the community should have activities in several places in Sweden. Nevertheless, a community smaller than this may be subsidised if it belongs to an internationally active religious denomination with a significant expanse. Additionally, it is required that the activities must be mainly financed by members of the community living in Sweden. Eligible for support are also religious denominations irrespective of their form of association as well as cooperative bodies of religious denominations. For instance, the Orthodox churches and the Islamic communities are included within the state subsidy system through their cooperative bodies. The subsidies are distributed to the communities as general grants for activities, grants for organising theological training and pastoral care in hospitals, as well as special grants for building projects, for initiating activities serving immigrants and training personnel for the community. The total amount of grants has been approximately 50 million Swedish crowns (ca. 5,6 million euros) per year. The appropriation of the grants is decided by a council functioning as a state authority (Samarbetsnämnden för statsbidrag till trossamfund, SST) in which all the associations accepted to receive state subsidy are represented.

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affecting real estate irrespective of whether the owner belonged to the Church or not, or whether taxes were collected from physical or artificial legal person.5

When real estate taxation was reformed in 1993, it was decided that a parish could not be conceded the right even to a portion of the proceeds of the real estate tax, which nowadays belongs entirely to the municipality.6

2.3. Corporation taxation

The principles according to which mines, factories, sawmills and mills were to

participate in remunerating the clergy were confirmed in 1762. The same principle was confirmed in an act issued in 1886, in the Act concerning the residences and funds of Evangelical Lutheran parishes (106/1966), and also in the more recently issued Income Tax Acts.7 Thus, traditionally production plants have participated in making ecclesiastical payments, and the development of different forms of associations and enterprises has not caused exceptions to the liability to pay. The tax liability of associations is now prescribed upon in the Income Tax Act (1535/1992). According to its 1st section’s 2nd clause, "of the income of an association and of common benefits tax must be paid to the state, the municipality and the parish". In other words, with the exception of other religious communities and their parishes, all associations pay this tax to Lutheran parishes. In addition, the state and the municipalities also pay corporation tax to the Lutheran parishes. The corporation tax is a very important source of income, and its proceeds to the whole Church have been at the annual level of ca. 100 million euros – this is approximately 20 per cent of the total tax income.8

Until 1993 the church taxation of corporations was based on tax units. The tax units were calculated for each corporation separately in state taxation and municipal taxation. The latter also served as the basis for church taxation. For state tax, the same uniform tax base applied to the whole country. However, municipal and church tax were determined more precisely on the basis of the tax rate of the particular municipality and parish. Thus there was considerable variation between different municipalities and parishes. At the time also enterprises paid the church tax in the same way as parish members. In connection with the enactment of the new Income Tax Act (1535/1992), this system was transformed in 1993. Currently all corporations in Finland have the same uniform tax base, which is at the moment 29 per cent. It is collected as a pent of the state’s tax collection and divided between the state, municipalities and parishes. The parishes’ common share of this is 1.8 per cents (2004), of which the share of the Orthodox Church parishes is 0.08 %. The parishes in the location of an enterprise are calculated a share

5 KM (1997:7), 9. 6 KM (1997:7), 9. 7 KM (1997:7), 9. 8 Halttunen 2005, 476.

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corresponding to the enterprise’s taxable return. If the enterprise has activities in several localities or if it is a group of companies, the share of the corporation tax is divided between parishes in proportion to the number of jobs located in their area. The system functions flawlessly, and its only problem is that the returns of the enterprises vary extraordinarily from year to year.9

According to the legal adviser of the Evangelical Lutheran Church of Finland, church counsellor Matti Halttunen, the corporation tax reform of 1993 has been one of the most successful reforms ever of Finnish tax legislation. The proceeds from the corporation tax have multiplied. The state authorities have considered that this ”extra share” belongs primarily to them. Thus, the share of the municipalities and that of the parishes have been significantly repeatedly reduced. Originally the share of the parishes was 3.36 per cent units, from which it was reduced to its lowest rate, 1.63 per cent. At the current level of proceeds this has meant a cut of ca. 80 million euros per year in tax income. During the past few years the percentage share has slightly increased since the losses suffered by parishes owing to the increase in tax deductions have been compensated to some extent by raising the share of the corporation tax. At present the share of the parishes is 1.94 per cent. The table10 below shows the amount of corporation tax income received by parishes. The share of the parishes is divided between Evangelical Lutheran and Orthodox parishes so that the Evangelical Lutheran parishes receive 99.92 per cent and the Orthodox parishes 0.08 per cent. The parishes’ corporation tax income by payment, mill. euros

Year 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Average Corporation 39 59 85 106 149 144 130 127 93 89 89 101 tax income (source: Ministry of Finance, corrected to 2003 value on the basis of the cost of living index)

However, the parishes have continually been the losing party, since there exist

no other organisational instruments between the state and the parishes. State and the municipalities are able to organise financial flows using massive state subsidy systems. Because of its tax income, the Lutheran Church receives no state subsidies.11

The share of the corporation tax proceeds received by the parishes is tax income, not state subsidy. When the church tax liability of corporations was under

9 Halttunen 2005, 476. 10 Source: Rekisteröityjen uskonnollisten yhdyskuntien valtionavustustyöryhmän mietintö [Report of the Working Group on State Subsidy for Registered Religious Communities], p. 9. Opetusministeriön työryhmämuistioita ja selvityksiä 2005:15 [Working Group Memoranda and Studies of the Ministry of Education, Finland, 2005:15]. 11 Halttunen 2005, 476.

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consideration when planning the reform of the corporation tax, the main argument was that the parishes are responsible for practically the whole country’s management of burials. Attention was also directed to the parishes’ status as a population register authority and to the other social tasks of the parishes, especially to those related to social work, educational work and the protection of buildings. The state authorities have considered these tasks so important for society that their funding has also been organised from taxes paid by corporations. However, seen from a tax law viewpoint, tax income cannot be considered as a form so-called earmarked income. This means that the taxpayer cannot refuse to pay taxes or to decide on the use of the tax. Correspondingly, citizens are unable to oppose the use of taxes paid by them for purposes they do not approve of due to principle-based reasons.12 In 1997 the Committee of the Ministry of Education shared the same position.13

The operational expenses of the Orthodox Church’s central and diocesan administration are also mainly paid from state funds. In addition, the government has supported some Orthodox parishes and institutions with state aid. The 2005 budget of the Central Church Board assigned 1.787 million euros to activities and to the aforementioned State Aid 152,000 euros.14

3. The extension of the State’s financial support to registered religious communities

On 9 May 2005 the Working Group on State Subsidy for Registered Religious

Communities of the Ministry of Education submitted its report on the extension of the state’s financial support to registered religious communities besides the Evangelical Lutheran and Orthodox Churches. The working group also prepared a proposal for the implementation of the system.

The working group assumed that a central starting point when determining the total amount of the state subsidies for registered religious communities is to attempt to treat various religious communities equally. In this context, the amount of the corporation tax income of the Evangelical Lutheran parishes may be considered as a starting point. The amount of the corporation tax income has varied strongly due to e.g. the economic conditions. The corporation tax income was at its highest level in the end of the 1990s – almost 150 million euros. In recent years it has been approximately 90 million euros. The average corporation tax income in the years 1993–2003 has been approximately 101 million euros each year. After

12 KM (1997:7), 29–30. 13 KM 1997:7: Valtion ja kirkon taloudelliset suhteet [Financial Relations between State and Church]. 14 OPM:n työryhmämuistioita ja selvityksiä 2005:15. [Working Group Memoranda and Studies of the Ministry of Education, Finland, 2005:15]

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the mid-1990s, the parishes’ corporation tax income, calculated per parish member, has varied between approximately twenty euros and a little over thirty euros.15

When considering the size of the subsidies, it has been justified to take into account that the Evangelical Lutheran parishes have such statutory social obligations that the registered religious communities do not have. The most important of these tasks as far as its expenses are concerned is the maintenance of public cemeteries that belongs to the Evangelical Lutheran parishes. In 2003 the net expenses caused by this activity to the parishes were approximately 67 million euros.16

The working group of the Ministry of Education considered that the granting of state subsidy should take place as far as possible according to calculatory grounds, that use the number of members as their basis. Thus the state subsidy authority would not need to comment on value-based factors related to the communities’ activities. The working group ended up proposing one hundred members as the membership number limit for state subsidies.17 Yet, when determining the level of the state subsidy for registered religious communities in greater detail, the working group nevertheless considered the Evangelical Lutheran parishes’ corporation taxes from which the expenses of burial management were subtracted as a useful starting point. In this way it is possible to arrive at the level of approximately 300 000–460 000 euros (= ca. 5–7.7 euros per member of community), depending on whether the basis for the calculation is the corporation tax income from 2003 or the average of the years 1993–2003.18

Ultimately the size and the funding of the grant to be allocated to state subsidies for registered religious communities shall be decided annually in connection with the state budget. Working group members representing the Ministry of Education considered that the realisation of the proposed state subsidy system requires an increase in the expenditure framework of the Ministry of Education. A member representing the Ministry of Finance considers that the expenses must fit within the framework for state finances ratified 11 March 2005 by the Government – without new increases in expenditure.

The hearing of the working group’s proposal shall continue in connection with the preparation of the state budget for 2007 and the plan of action and finances for 2007–2010. The goal is to include a grant for the purpose in the budget for 2007.

15 See above Table, footnote 10. 16 Kirkon tilastollinen vuosikirja [Statistical Yearbook of the Church] 2003, p. 226. 17 The basic lines of thought of the working group have been dealt with in more detail earlier in Chapter 4, The grounds for granting state subsidy. 18 Reports of the Ministry of Education, Finland 2005:15, 19.

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The regulative basis and the granting of the state subsidy In the view of the working group, no special regulation is required to extend the

state subsidy system to registered religious communities. The principles and procedures to be followed in granting state subsidies are extensively prescribed upon by the State Subsidy Act. The State subsidies for registered religious communities would be, as indicated in the 2nd close of the 5th section of the State Subsidy, general grants for the activities of the recipient of state subsidy in general.

In the State Council, matters relating to religious communities belong to the field of activities of the Ministry of Education. According to the model proposed by the working group, the tasks related to the granting of state subsidy for registered religious communities are clearly of an executive nature. As a result, the working group considers it necessary to investigate whether some other government official could be responsible for granting the subsidy. Were that the case, it is possible that the task might be taken care of some bureau subordinate to the Ministry of Education but representing another field of activities such as for instance the Schools Board or one of the provincial governments.19

19 Reports of the Ministry of Education, Finland 2005:15, 17, 19.

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LITERATURE AND SOURCES Ehdotus laiksi ortodoksisesta kirkosta. [Proposal for an Orthodox Church Act ] 2004 Opetusministeriön työryhmämuistioita ja selvityksiä [Working Group

Memoranda and Studies of the Ministry of Education, Finland] 2004:32. Halttunen, Matti 2005 Die Entwicklung der Beziehungen zwischen der Ev.-luth. Kirche und dem

Staat in Finnland seit 2000. – Zeitschrift für evangelisches Kirchenrecht 50 (2005) : 3, 453–480.

Kirkko ja valtio -komitean mietintö [Report of the Church and State Committee] 1977 Komiteamietintö [Committee Report] 1977:21. Helsinki 1977. Kirkkojärjestyskomitean mietintö [Report of the Committee on Church Order] 1979 Pieksämäki. Rekisteröityjen uskonnollisten yhdyskuntien valtionavustustyöryhmän mietintö [Report of the Working Group on State Subsidy for Registered Religious Communities] 2005 Opetusministeriön työryhmämuistioita ja selvityksiä [Working Group

Memoranda and Studies of the Ministry of Education, Finland ] 2005:15. Valtion ja kirkon taloussuhteita käsitelleen toimikunnan mietintö [Report of the Committee on Financial Relations between State and Church] 1997 Komiteamietintö [Committee Report] 1997:7. Helsinki 1997. Seurakuntien yhteisövero-osuuden korvaamista selvittävän työryhmän muistio [Memorandum of the Working Group Studying the Substitution of the Parishes’ Share of the Corporation Tax] 2002 Valtiovarainministeriön työryhmämuistioita [Working Group Memoranda

of the Ministry of Finance, Finland ] 2002:9.

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QUESTIONS ADMINISTRATIVES ET FINANCIÈRES DANS LE DOMAINE DE LA LIBERTÉ DE RELIGION ET

DES COMMUNAUTÉS RELIGIEUSES

Pierre JOXE, ancien ministre membre du Conseil constitutionnel

II. Législation se rapportant à la liberté de religion et aux communautés

religieuses adoptées après 1990. La réforme majeure en matière de liberté des cultes depuis 1990 est celle

instaurée par l’ordonnance n° 2005-856 du 28 juillet 2005 et le décret n° 2007-807 du 11 mai 2007, textes visant à simplifier « la procédure applicable aux libéralités consenties aux associations, fondations, congrégations et établissements publics du culte, ainsi qu’à la tutelle sur les actes de disposition des associations, des fondations reconnues d’utilité publique et des établissements congréganistes » (V.doc 2-II-a et doc 2-II-b). En permettant aux associations cultuelles et aux congrégations (entre autres structures juridiques), de bénéficier de libéralités dans des conditions plus souples, cette réforme a contribué à accroître la liberté de culte.

De même, on peut citer les travaux de la Commission de réflexion juridique sur les relations des cultes avec les pouvoirs publics, dont la mission était de réfléchir aux amendements possibles du corpus de textes régissant les cultes, pour adapter les relations entre l’Etat et les cultes aux changements du monde moderne (V.doc 2-II-c). Les travaux de cette commission ont donné lieu au mois de septembre 2006 à un rapport préconisant un certain nombre de modifications à apporter (V.doc 2-II-d). Un groupe de suivi continue de travailler sur la façon d’y parvenir d’une façon pratique.

III. Programme gouvernemental visant à modifier la législation dans ce

domaine. Il n’y a pas actuellement, à la connaissance du bureau, de programme visant à

modifier la législation en ce domaine. Les modifications préconisées par la Commission citée au II ci-dessus s’effectueront à droit constant.

V. Principal allègement fiscal concernant les communautés religieuses

et les donateurs ; législation déterminant la fiscalité imposée aux communautés religieuses et aux donations.

(V.doc 2-V) Extrait de « Dalloz professionnels – Associations » Ed. Dalloz.

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VI – Expériences se rapportant à la mise en œuvre et à l’exécution de la législation (liste des communautés religieuses enregistrées, aide

financière publique destinée aux activités des églises et des communautés religieuses).

Le Bureau central des cultes a trace de plus de six cents cinquante et une

congrégations légalement reconnues, mais certaines, de création très ancienne (début du 19ème siècle), n’ont probablement pas été répertoriées.

Il n’y a pas de liste nationale des associations pour l’exercice du culte, gérées au niveau départemental.

En régime de laïcité, il n’y a pas d’aide financière publique possible aux activités des églises et communautés religieuses, sauf possibilités évoquées au 1-B-III-2 ci-dessus.

VII – Taxe éventuelle imposée aux églises et son montant total de 2003 à

2006. Question peu claire. Pas de taxe spécifique à priori. Sur le fond, la réponse est

de la compétence de l’administration fiscale. VIII – Pourcentage de l’impôt sur le revenu qui pourrait être attribué par

les contribuables, à des communautés religieuses déterminées (si cette possibilité existe) ; les montants totaux de 2003 à 2006 et la répartition par Eglise (si disponible).

Les dons effectués par le contribuable à des associations cultuelles sont

déductibles des revenus déclarés dans les conditions prévues aux articles 200 et 238 bis du code général des impôts). Voir V ci-dessus et doc 2-V.

Pour la seconde partie de la question : il est très douteux qu’une telle liste existe, mais la réponse est de la compétence de l’administration fiscale.

335


COMMUNITIES

Dr. Bernd KÜSTER German Federal Interior Ministry

I. Information about state agency or ministry in your country

competent for churches and religious communities; its competences; number of employees; annual budget

The Federal Republic of Germany is a federal state; this means that

governmental tasks are distributed between the Federation and the constituent states (Länder). Under the provisions of the German Constitution, i.e. the Basic Law of 1949 (Grundgesetz - GG), responsibility for church-state relations primarily lies with the Länder and, as a rule, is assigned to the Länder's Ministries of Culture. Germany does not have a specific state agency competent for religions and their communities. At the federal level, the Federal Chancellery and the Federal Ministry of the Interior have divisions that deal with the state's relations with churches and religious communities and maintain contacts at the working level and prepare political talks. Other federal ministries, within their sphere of responsibility, also deal with religious affairs; thus, the Federal Ministry of Defence deals with armed forces chaplaincy services and the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth - from a protection of minors angle - is concerned with so-called sects and mind control groups and with the churches' social work. As a matter of principle, non-religious communities (i.e. "ideological associations") enjoy the same legal status as religious communities.

II. Legislation related to religious freedom and religious communities accepted after 1990 - list of laws on religious freedom and

agreements between state and religious communities

Freedom of religion and of ideological/philosophical convictions is fully guaranteed in Germany. The constitutional law bases for this and for the legal relationship between the state (the Federation and the Länder, including local authorities) and religious communities are the Basic Law provisions contained in Annex 1 (especially Article 4, paras. 1 and 2, of the Basic Law and the provisions of the Weimar Constitution of 1919 on state law applicable to religious organizations,as included in the 1949 Basic Law under Article 140). The Constitutions of the various Länder also contain provisions on religious freedom and on the relationship with religious communities. In addition, pertinent provisions are contained in ordinary (i.e. sub-constitutional) laws such as the Act

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on the Religious Education of Children (Gesetz über die religiöse Kindererziehung - RKEG).

In Germany, the Basic Law provision on the legal relationship between the state, on the one hand, and the two major Christian Churches and the Jewish Community (as represented by the Central Council of Jews in Germany, ZdJ), on the other, has been put into concrete terms by Agreements ["treaties"] concluded between the Länder – which have primary responsibility for these matters – and the religious communities which normally are organized at the Land level. As regards the Roman Catholic Church, so-called Concordats have been concluded by the various Länder and the Holy See. The so-called Reich Concordat (1933 Concordat between the Holy See and the German Reich) continues to be in force. With regard to armed forces chaplaincy services, a legally ratified Agreement ["treaty"] has been concluded by the Federation with the Protestant Church in Germany (Evangelische Kirche in Deutschland - EKD).

A list of the Concordats and treaties [Agreements] concluded by the Federation and the Länder with religious communities is posted on the homepage of the Federal Ministry of the Interior (www.bmi.bund.de) (under Themen A-Z ("subjects A-Z"), Kirchen und Religionsgemeinschaften ("churches and religious communities"), Daten und Fakten ("data and facts"); direct links: Verträge mit der katholischen Kirche (Roman-Catholic Church); Verträge mit den evangelischen Landeskirchen (Land Protestant Churches) and Verträge mit der jüdischen Gemeinschaft (Jewish Community)).

Federal legislation contains many special regulations for religious communities, which for the major part provide exemptions from specific provisions, e.g. of labour law and of legislation governing the rights of staff members at their place of work ("works constitution law"), so as to take due account of the right of self-determination of religious communities as guaranteed by the Constitution.

The General Equal Treatment Act (Act to implement European Directives implementing the principle of equal treatment; Allgemeines Gleichbehandlungsgesetz) contains provisions regarding admissible non-equal treatment on the basis of religion or ideological/philosophical convictions as regards exercise of the freedom of religion or the right of self-determination of religious communities. Special regulations in favour of religious communities also apply to specific religious rites (e.g. provisions of the Animal Protection Act (Tierschutzgesetz)), to the bodies providing social institutions/facilities and to participation in the furtherance of the integration of foreigners in the Federal Republic.

Additional special regulations of property law in favour of religious communities are contained in the Equalization Benefits Act (Ausgleichsleistungsgesetz) and the Act Regulating Unsettled Property Issues (Gesetz zur Regelung offener Vermögensfragen). Other special regulations favouring religious communities are, for instance, provisions on armed forces chaplaincy services chaplaincy services for hospitals/hospitals, penal institutions,

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etc. and provisions allowing deferment from military or civil alternative service for persons liable for such service who are training for a clerical office/ministry. III. Government’s plans for changing legislation in this field (draft of

acts)

There are no plans at the Federal Government level for amending Basic Law provisions governing religion and religious communities or laws that specifically refer to the state’s relationship with religious communities.

IV. Educational activities of churches and religious communities: number

of schools and universities provided by churches and religious communities, the number of students attending their programmes

1. Schools 1.1. Constitutional bases

The fundamental right of the freedom of religion and of

ideological/philosophical convictions and the right to undisturbed practice of religion (Article 4 , paras. 1 and 2, of the Basic Law) is fully guaranteed in Germany and thus is also ensured at publicly maintained schools.

Under Article 7, para. 3, of the Basic Law, religious instruction as a regular classroom subject forms part of the ordinary curriculum of publicly maintained schools, with the exception of "secular" [non-denominational] schools. Religious instruction is given by state-employed teachers on a denominational basis in accordance with the principles adopted by the respective religious communities; this means that the curricula for religious denomination-based instruction are es-tablished in consultation with the religious communities concerned, and teachers must have been granted a teaching authorization by the respective religious community. Responsibility for schools and thus for inclusion of religious instruction in their curricula lies with the Länder. Under Article 141 of the Basic Law (the so-called "Bremer Klausel" ["Bremen clause"]), Article 7, para. 3, of the Basic Law does not apply in Berlin and Bremen. In these two Länder, therefore, religious instruction is not a regular classroom subject. Instead, the Land of Bremen offers instruction in biblical history on a general Christian basis. In Berlin, various religious communities on their own responsibility provide for religious instruction, not subject to state supervision, outside the teaching of compulsory subjects. A similar practice is applied in the Land of Brandenburg.

Under Article 7, para. 4, of the Basic Law, the right to establish and operate private schools is guaranteed under constitutional law. The term "private schools" covers substitute schools as well as complementary schools. "Substitute schools" are private schools intended to serve as a substitute for publicly maintained schools

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existing, or planned under schools policies, in a Land. The establishment and operation of such private schools require the approval of the state, which must be granted if a school of this type is not inferior to publicy maintained schools in terms of their educational aims, internal organization and the professional training of their teaching staff and if segregation of pupils on the basis of the financial circumstances of their parents is not promoted thereby. Approval must be withheld if the appropriate financial and legal status of the teaching staff is not sufficiently ensured. A private elementary school may only be approved if the schools authority confirms that the school serves a special pedagogical interest or if, on upon an application filed by the persons entitled to bring up the children concerned, the school is to be established as an inter-denominational school or a denominational school or a school of a particular ideological or philosophical persuasion and if a publicly maintained elementary school of this type does not exist in the given place/municipality (Article 7, para. 5, of the Basic Law).

On the other hand, in cases where, as a rule, no comparable publicly maintained schools exist or where existing schools cannot provide compulsory education normally required up to the age of 16 years, establishment of "complementary schools" (Ergänzungsschulen) is only subject to notification.

According to the division of jurisdiction between the Federation and the Länder as stipulated in the Basic Law, responsibility for education in Germany essentially lies with the Länder; therefore, as regards sub-constitutional legislation, reference is made to the schools and universities acts of the Länder.

1.2. Schools provided by religious communities or religious associations

According to information provided by the Protestant Church in Germany

(Evangelische Kirche in Deutschland - EKD), Germany has 988 Protestant schools not provided by the state and attended by approximately 70,000 pupils.

As reported by the Roman Catholic Church, there are 872 Catholic schools not provided by the state (as of: 2002/2003 school year). In addition, 256 Catholic schools exist in the health care sector. The aforementioned 872 schools include 177 schools for challenged/handicapped pupils and 164 vocational/technical schools. The 531 general education schools comprise 207 grammar schools (Gymnasien), 164 intermediate secondary schools of various types (Realschulen, Mittelschulen) and 114 elementary and extended elementary [grades 5 – 9] schools. In addition, there are 23 evening schools and Kollegs [special secondary schools to prepare adults for university admission], 16 Orientierungsstufen [special 5th and 6th grades of secondary schools that promote pupils according to their individual ability] and 7 comprehensive schools.

In the 2002/2003 school year, 293,584 pupils attended a general education Catholic school.

According to information provided by the Central Council of Jews in Germany (Zentralrat der Juden in Deutschland), Jewish elementary schools exist in Berlin,

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Frankfurt, Munich, Düsseldorf, Cologne and Hamburg, with an overall number of approximately 1,050 pupils; in addition, there are a Jewish secondary school (combined intermediate secondary and grammar school – Realschule/ Gymnasium) in Berlin, attended by 280 pupils, and a Jewish Volkshochschule (an adult edu-cation institution).

As reported by the Zentralinstitut Islam-Archiv-Deutschland, three schools are provided by Muslim associations or foundations.

Private schools are also provided by other religious communities. For comparison: There are more than 33,000 publicly maintained

general education schools. 2. Universities/colleges (tertiary education institutions) 2.1. Theological training at state-provided colleges/universities

In 2005, state-provided universities in Germany had 13 Catholic theology and 19 Protestant theology departments for the academic training of prospective priests and ministers. In addition, there are smaller sections without departmental status, offering teacher training or M.A. courses of studies in religion (specialized sections for Protestant and Catholic theology): at state-provided universities, there are more than 30 Catholic theology institutes and sections providing training for R.E. teachers which do not have the status or organizational structure of university departments of theology.

State-provided universities provide theological education and training in accordance with the procedures applying to the provision of religious instruction at schools and in co-ordination with the university's providing body and the respective religious community.

In addition to university departments for Islamic sciences, there are also professorships for Islamic theology or Islamic religious education at the universities of Frankfurt, Münster and Erlangen; also, Potsdam University has a professorship for Jewish studies. In addition, there are professorships for Orthodox theology.

2.2. Colleges/universities provided by religious communities or religious associations

- The Roman Catholic Church runs a private university (Katholische

Universität Eichstätt in Bavaria) with eight departments with a focus on social sciences and liberal arts/humanities. At present, the Eichstätt Catholic University has 120 professors, more than 200 academic assistants and 4,800 students.

In addition to the Eichstätt Catholic University with its courses of studies in social sciences and liberal arts, there are eight state-recognized Catholic technical colleges/universities offering specialized courses of studies in social

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sciences, theory of religious education [pedagogics] and church-provided educational activities, social care and library sciences.

Five colleges/universities provided by religious orders offer training for prospective members of the Catholic religious orders. The Jesuite Order has a Faculty of Humanities [arts faculty] in Munich and the Philosophisch-Theologische Hochschule in St. Georgen (Frankfurt). Other theological colleges are operated by the Salesian religious congregation in Benediktbeuern, the Pallottines in Vallendar, the Franciscans [Grey Friars] and Capuchins in Mün-establishment of "complementary schools" (Ergänzungsschulen) ster, and the Steyler Patres in St. Augustin. All colleges provided by religious orders are recognized by the Church and the state and are also open to non-members of the orders.

- The Protestant Church maintains four church-provided

colleges/universities for theological and deaconry training, eleven professional colleges (Fachhochschulen) and seven Protestant colleges for church music.

The state-approved Theologische Hochschule Friedensau (in Saxony-Anhalt Land) has university status and is provided by the Free Church of Seventh-Day Adventists. This institution has 9 professors supported by academic assistants and approx. 200 students. Institutions provided by liberal [Christian] theology institutions also include a Protestant liberal theology college (Theologisches Seminar of the Bund Evangelisch-Freikirchlicher Gemeinden Wustermark-Elstal) and an Evangelical Methodist college (Theologisches Seminar Reutlingen) for the training of liberal theology clergymen.

- The Jewish community has a state-recognized college for Jewish studies

(Hochschule für jüdische Studien) established in Heidelberg in 1979. In addition to a Master's degree course of studies, this college also offers a course of studies for »state examinations in Jewish religion« and provides training for (male and female) rabbis of various denominations. The college is provided by the Central Council of Jews in Germany (Zentralrat der Juden in Deutschland - ZdJ) and financed by the ZdJ (funds provided by the Federation) and by the Standing Conference of the Land Ministers for Cultural Affairs. The Heidelberg Hochschule für jüdische Studien has 8 professors and 2 lecturers supported by academic assistants, and 160 students.

The Abraham Geiger Kolleg which co-operates with Potsdam University provides training for female and male rabbis. The institution, a nonprofit limited liability company, is provided by the Leo Baeck Foundation Potsdam.

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V. The most important tax reductions related to religious communities and donators; legislation which determines taxation of

religious communities and donations

Contributions (donations and, in specific cases, membership fees) made to domestic nonprofit/ charitable institutions for the promotion of tax-privileged objectives are tax-deductible up to specified maximum amounts. Tax-privileged purposes include, among others, religious and cultural activities. Even payment of church taxes is tax-deductible.

As a matter of principle, nonprofit institutions are exempted from corporation (income), real estate and inheritance taxes. Tax privileges are not granted for business/commercial activities by which nonprofit corporations participate in general economic life and on account of which they enter into competition with enterprises that are liable to pay taxes. However, such activities are not subject to taxation provided that certain tax-free amounts and deductible amounts are not ex-ceeded.

Corporations under public law (and thus those religious communities that have this legal form) are subject to unlimited liability to pay corporation (income) and turnover taxes only with regard to their business/commercial enterprises. Turnover revenues are tax-free if they are closely related to the operation of hospitals, diagnostics clinics and other institutions providing expert curative treatment, diagnostics or medical findings, obstetrics institutions and residential or nursing homes for senior citizens, genral nursing homes, institutions for the temporary accommodation of persons in need of care and institutions for out-patient care provided to sick persons or persons needing care, provided that these institutions are operated by legal persons under public law.

VI. Experience with implementing and executing legislation (list of registered religious communities, state financial support for activities of

churches and religious communities) 1. List of registered religious communities Preliminary remarks

German constitutional law does not provide for any abstract "recognition" or registration of religious communities. This would be in contradiction to the concept of the relationship between the state and religious communities, as implied by the Basic Law; this concept is based on freedom of religion, the right of religious communities to self-determination and their independance of the state. Consequently, there is no stipulated requirement for a state-granted authorization or permission for forming an association. It is only for conferment of a certain legal

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status (e.g. the legal form of an incorporated association) that registration in a pertinent public register is required; this, however, applies to all non-religious associations as well. Similar provisions apply to recognition, carrying tax privileges, as a nonprofit or charitable organization.

Assessment of whether or not an association is a religious community within the meaning of the Basic Law is based on the association's self-perception and also on certain objective criteria developed in constitutional law literature and, above all, by Decisions of the Federal Constitutional Court (Bundesverfassungsgericht). It is only when an association claims certain rights that can only be enjoyed by religious communities - such as provision of religious instruction at publicly maintained schools – that this matter will be considered by the respective competent public authorities and, in case of a dispute, be settled by state courts.

According to a definition developed by the Federal Constitutional Court on the basis of a definition already provided under the Weimar Constitution (WRV), religious communities are "communities which bring together all members of a religious confession within a defined geographical area for general performance of the tasks required by their shared confession". There is no miminum size prescribed for religious communities, and these are not obliged to adopt a certain legal form (e.g. that of an incorporated association). However, they must have a certain degree of organizational structure that can be attributed to natural persons who can be identified as members of the respective religious community. Religious communities must be distinguished, in particular, from religious associations which only pursue limited religious aims, such as charitable associations. Nor can organizations engaging, for the major part, in business/commercial activities or political interest groups qualify as religious communities.

Every religious community can organize itself as an association having legal capacity and thus acquire legal personality (as a so-called legal person) so that it can, as an organization, transact legal business (e.g. conclude contracts or be registered as the owner of buildings etc.). Many religious communities in Germany have the status of a registered association. As regards the Muslim communities existing in Germany, it has not yet been established whether or not they have the degree of organizational structure required for qualifying as a religious community.

In addition, Article 140 of the Basic Law [on the continued validity of certain WRV Articles], in conjunction with Article 137, para. 5, of the Weimar Reich Constitution, provides for the status of a corporate body under public law that confers certain prerogatives and other privileges, e.g. the right to levy church taxes from the body's members instead of relying on voluntary contributions, and to entrust the state with the task of levying such taxes from the body's members and to transfer these revenues to the respective Church/religious community; also, religious communities which are organized as corporate bodies under public law are granted exemptions from taxes, charges and fees; they have the option of defining the status of their staff members on the basis of either civil law or public law – as public servants of their own kind.

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Religious communities organized as corporate bodies under public law are not part of the state organization and are not subject to any state supervision; instead, they are corporations in their own right, recognized under constitutional law and enjoying special privileges. Above all, the corporate body status is not the precondition for a community to be allowed to organize itself and act as a religious community or to exercise the rights conferred upon all religious communities, such as participating in religious instruction offered at schools, operating social institutions/ facilities, or providing chaplaincy services for the armed forces or other public institutions [e.g. in the health care sector or in prisons]. A widely held erroneous view is the assumption that only those religious communities that are public law corporations obrtain state recognition while other religious communities do not.

Under constitutional law, the status of a public law corporation is guaranteed for those religious communities that were recognized as such corporate bodies under public law before the entry into force of the Constitution; other religious bodies shall be granted this status upon application provided that they meet certain criteria.

Conferment of the status of a public law corporation is the Länder's responsibility. Under the provisions of the Basic Law, the status of a corporate body under public law is conferred only on communities which, in terms of their constitution and the number of their members, offer an assurance of their permanency (in state practice, criteria assumed to provide such assurance are a certain size: approximately a one per thousand part of the Land's population, active participation in local community life, and availability of sufficient funds; moreover, as a general rule, eligible communities must already have been in existence in the Federal Republic for 30 years).

In addition, according to Decisions of the Federal Constitutional Court (Bundesverfassungsgericht), the given religious community must give reason to expect that it will exercise the sovereign powers conferred on it in accordance with the obligations stipulated in constitutional law and other legal provisions and that its future policies and practices will not jeopardize the fundamental constitutional principles, the basic rights of third parties, which are to be protected by the state, or the fundamental Basic Law principles regarding the law governing religious matters and the state/Church relationship on the basis of the state's free and democratic basic order.

Irrespective of the legal form of organization and thus regardless of the possible status of a corporation under public law, all religious communities enjoy the constitutionally guaranteed right of self-determination as regards administering their own affairs. This means that, for instance, religious communities themselves regulate the legal status of persons employed by them. Religious communities are not subject to any special state supervision.

Of course, religious communities must respect the laws applying to all citizens, such as penal laws or building law or the provisions governing conservation of the

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architectural heritage in the case of old church buildings. On the other hand, however, interpretation of laws takes account of freedom of religion aspects, or provisoes in favour of religious communities are - from the start - included in laws so as to avoid any encroachment upon the freedom of these communities. Thus, there is a relationship of reciprocity between the basic right to freedom of religion and religious self-determination, on the one hand, and public interests, on the other.

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Annex

Religious communities existing traditionally as corporations under public law include, above all, the Protestant Churches (Land Churches, Congregations, unions), the Roman Catholic Church (dioceses, parishes, unions, in instances also communities of religious orders) and various Jewish congregations, but also the Old Catholic Community and "Old Lutherans" [Autonomous Evangelical Lutheran Church], Baptists and Mennonites [Christian Anabaptists].

Among the religious communities that were granted this status either after the entry into force of the 1919 Constitution of the Weimar Republic (WRV) or after the entry into force of the 1949 Basic Law for the Federal Republic of Germany are the following:

• Liberal Protestant Churches (inter alia Pentecostal Assemblies, Salvation Army);

• Orthodox Churches (Greek-Orthodox Metropolitanate of Germany, Russian Orthodox Church Outside Russia, Russian Orthodox Church - Moscow Patriarchate, Romanian Orthodox Church);

• Land Unions of Jewish Congregations, Central Council of Jews in Germany (Zentralrat der Juden in Deutschland), various Jewish congregations and/or Israelite religious congregations;

• New Apostolic Church; • Jehova's Witnesses; • Community of the Seventh-Day Adventists; • Apostelamt Jesu Christi (AJC) [Apostolate of Jesus Christ, a break-

away community from the New Apostolic Church]; • Gemeinde Gottes [Church of God, a liberal Protestant (Pentecostal)

Church]; • Christengemeinschaft [The Christian Community (Lutheran,

antroposophy)]; • Johannische Kirche [St. John's Church, based on his Revelations]; • (Erste) Kirche Christi, Wissenschaftler (Christian Science) • Bund Freireligiöser Gemeinden Deutschlands (BFGD) [Union of

Liberal Theology Congregations in Germany]; • Liberal theology communities or congregations formed at the Land

level; • Liberal religious communities (Humanistische Gemeinde

Freier Protestanten - [Humanist Congregation of Liberal Protestants]);

• Unitarische Freie Religionsgemeinde [Liberal Unitarian Congregation];

• Church of Jesus Christ of Latter-Day Saints (Mormons);

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• Bund für Geistesfreiheit Bayern (bfg Bayern) [Freethought Union of Bavaria].

The membership figures for the two large Christian Churches and the Central Council of Jews in Germany (Zentralrat der Juden - ZdJ) are based on the institutions' own precise statistical data. All other figures stem from estimates or information provided by the religious communities themselves. Therefore, the following list of the largest corporations under public law is neither definitive nor any official statement on the actual size of these organizations:

- Roman Catholic 25,905,000

- Protestant Church 26,211,000

- Greek Orthodox Church (Ecumenical Patriarchate of Constantinople)

450,000 - New Apostolic Church

375,000 - Romanian Orthodox Church in Germany 300,000 - Russian Orthodox Church (Moscow Patriarchate)

150,000 - Zentralrat der Juden in Deutschland (Central Council of Jews in

Germany)/ Jewish Communiy 105,000 - Bund Evangelisch-Freikirchlicher Gemeinden [Union of Protestant

Liberal Congregations] (Baptists and Brethren Assemblies, Baptistische Kirche within the Baptist World Alliance, BWA) 87,000 Evangelisch-methodistische Kirche [Evangelical Methodist

Church] 64,100.

In addition, Germany has around 2.8 million inhabitants who are assumed to be

affiliated with the Muslim faith because their countries of origin are of predominantly Muslim persuasion. As assessed by the competent public authorities, the majority of the Muslim organizations existing in Germany at present do not fulfil the eligibility requirements as regards a "religious community" in the legal sense. With a view to clarifying the related questions, inter alia in respect of the self-organizations of Muslims in Germany and providing for integration in the German legal system and régime of values, an intensive dialogue is being carried on between the German state (Federal Government, Länder and

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local governments) and representatives of the Muslims in Germany (Deutsche Islamkonferenz, DIK - German Islam Conference ). Moreover, pertinent court proceedings on this matter are pending. 2. State financial support for activities of churches and religious communities

There is no comprehensive inventory of public funds allocated to religious

communities in Germany; also, such an inventory would be difficult to prepare, given the large variety of eligibility criteria and of institutions receiving such support. The following overview shows the types of state financial support for religious communities and is intended to give an idea of the uses and amounts involved. In this respect, a distinction must be made between state-provided funding based on legally defined claims and the allocation of funds for specific individual purposes, which generally can be granted anybody who meets specified eligibility criteria.

2.1 State financial support within the meaning of Article 140 of the Basic

Law, in conjunction with Article 138 of the Weimar Constitution (WRV)

Within the meaning of the Constitution, so-called "state contributions"

(Article 140 of the Basic Law, in conjunction with Article 138, para. 1, of the WRV) are legal claims of religious bodies to state financial support, that stem from pre-Constitution provisions/jurisdiction and are based on a law or contract or special legal title. These include, for instance, allocations for meeting the staffing and material expenses for general church administration purposes, allocations for the training, remuneration and social securitycoverage/pensions of priests/ministers and other church-employed staff, and for expenses incurred for other church-related requirements (including funding of the overall requirements of individual parishes and foundations, especially cathedral churches), and subsidiary allocations for meeting the overall expenses of a [Protestant] Land Church.

The claims of the Protestant Church to "state contributions" are founded primarily on the confiscation of church-owned assets by the respective prince [sovereign] who had converted to Protestantism after the Reformation.

The Catholic Church bases its claims to "state contributions" mainly on the secularization measures taken in the 19th Century. By way of compensation for secularized – originally church-owned – assets, the state had to assume responsibility for meeting the expenses incurred for the provision of church activities and services.

Article 140 of the Basic Law, in conjunction with Article 138, para. 1, of the WRV, stipulates that such state contributions "shall be redeemed by means of [Land] legislation". The present-day legal bases of state-provided financial support are laws, Concordats and State/Church Agreements ["treaties"] which, in part,

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redefined the original claims and fixed lump sums. The "State/ Church Agreements" concluded by the so-called "new Länder" [the five "East German" states of the Federal Republic] after the 1990 German unification also contain provisions to this effect.

"State contributions" based on old legal titles are no longer provided by the Federal Budget. Allocations from the Federal Budget (regarding legal titles originating in the Land of Prussia) were discontinued in the mid-1990s in agreement with the two large Christian churches. Thus, responsibility for payment of the remaining state contributions rests solely with the Länder.

No precise figures are available regarding the "state contributions" paid by the Länder. The opinion prepared by the Scientific Service (wissenschaftlicher Dienst) of the German Bundestag of 1 November 2004 gives an aggregate amount of allocations to the tune of about 600 million € per annum to both the Protestant and the Roman Catholic Churches. 2.2 State financial support for "common matters" of the state and

religious communities Such common matters are:

• religious instruction at publicly maintained schools; • Departments of Theology at state-provided colleges/universities; • institutional chaplaincy services (armed forces chaplaincy, health care

chaplaincy and chaplaincy services provided in penal and other institutions);

a) Religious instruction

In those Länder where religious instruction is a regular classroom subject pursuant to Article 7, para. 3, of the Basic Law, such instruction is a state-provided service. Consequently, the full personnel and material expenses must be borne by the school’s providing body. When religious instruction is given by priests/ministers or other church-employed staff , the school’s provider will reimburse the personnel expenses (so-called "special assignment allowances" [Gestellungsgelder]) to the respective Church.

Figures regarding the allocations paid by the Länder to schools for religious instruction are not available because such data are not collected as a specific category. In addition to material costs (for school premises, teaching materials), allocations cover pro rata personnel expenses for teachers employed in the publicly maintained schools service and reimbursement of expenditure related to church-employed staff. An opinion prepared by the Scientific Service (wissenschaftlicher Dienst) of the German Bundestag of 26 May 2005 quotes an Internet source claiming that the costs incurred in 2003 amounted to 2,250 million €.

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In Berlin and Bremen, on the basis of the so-called "Bremen clause" (Article 141 of the Basic Law), religious instruction is not a regular classroom subject; this means that a special regulation applies to these Länder (and also to Brandenburg Land). In Berlin, Agreements concluded with the Protestant Church and the Catholic Church provide that the Churches will receive Land subsidies for meeting personnel expenditure (including training costs) and material expenses to cover up to 90 % of the actual costs. Similar regulations apply to religious instruction provided by other religious and ideological/philosophical communities. b) College/university Departments of Theology

Historically, Theological Faculties are core departments of universities. Their continued existence as part of publicly maintained universities is a regular object of Concordats and State/ Church Agreements. Therefore, the material and personnel expenses incurred, inter alia, for the training of theologians/clergymen by Departments of Theology – like the expenses incurred by other university faculties – are borne by the university’s providing body and, according to the data available, are not listed as a separate item in the accounts. The pertinent legal bases are the Länder’s laws on institutions of higher (tertiary) education and Budget Acts. Thus, it is not a matter of payments to religious communities, but of a state-provided institution’s obligation to provide funding. c) Armed forces chaplaincy services

Chaplaincy services for the armed forces are regulated in Agreements ("treaties") concluded between the Federal Republic of Germany and the Churches. Under Article 2, para. 2, of the Evangelischer Miltärseelsorgevertrag [Agreement on Protestant Chaplaincy Services for the Armed Forces] of 22 February 1957, the state provides for the organization of armed forces chaplaincy and defrays the costs of such services. Protestant military clergymen are public servants. Different provisions apply to the "new Länder" [the five "East German" states of the Federal Republic after the 1990 unification of Germany]: under the Framework Agreement between the Federal Republic of Germany and the Protestant Church of Germany (EKD) of 18 June 1996, military clergymen are church-employed civil servants. They are paid by their respective Church, but such remuneration is reimbursed by the state.

For Catholic armed forces priests, the civil service provisions of the Evangelischer Miltärseelsorgevertrag [Agreement on Protestant Chaplaincy Services for the Armed Forces] apply mutatis mutandis (cf. Article 2 of the Act on Armed Forces Chaplaincy Services (Gesetz über die Militärseelsorge) of 26 July 1957, Federal Law Gazette II, p. 701). Bishops of the armed forces chaplaincy service (who are not in state employment) are paid annual expense allowances.

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As central agencies for armed forces chaplaincy, Evangelisches Kirchenamt für die Bundeswehr [Protestant Church Office for the Federal Armed Forces] and Katholisches Militärbischofsamt [Armed Forces Chaplaincy Bishopric of the Catholic Church] have been set up. These two offices, qua superior federal authorities, are also responsible for fulfilling governmental administrative functions; in this respect, they are directly subordinate to the Federal Ministry of Defence (BMVg).

The 2005 Federal Budget included appropriations for the armed forces chaplaincy services to the amount of little less than 27 million €. The major part of these funds– about 23 million € - were allocated for covering personnel expenses.

Similar regulations apply to chaplaincy services rendered to the Federal Police (Bundespolizei - BPOL).

d) Chaplaincy services for (health care/penal) institutions

Chaplaincy services for [public] institutions (e.g. in hospitals and prisons) are provided according to Land law. Pertinent provisions are contained in state/Church agreements and, in instances, also in administrative regulations.

An opinion prepared by the Scientific Service (wissenschaftlicher Dienst) of the German Bundestag of 26 May 2005 quotes an Internet source (Verein gegen Kirchensteuern e.V. [Association Opposing Church Taxes, reg.], without any further information on the source) claiming that in 2003 appropriations for chaplaincy services (provided to the armed forces and other institutions) amounted to approximately 66 million € . 2.3 Activities/participation of religious communities in society a) Education

The Churches are the providing bodies for adult education institutions, private schools and church-provided colleges and universities.

For adult education institutions operated by them, Churches - like other voluntary providing bodies - receive subsidies granted under the Länder‘s Further Training Acts. For instance, the Land of North-Rhine/Westphalia provides promotional funding, based on the respective numbers of lessons and students, for further training offered by voluntary providing bodies in specific educational subjects covered by the curricula of (evening) adult education institutions. In in-stances, state/Church agreements also contain commitments regarding financial support for the promotion of education.

Promotional funding, by the Länder, for general education schools provided by Churches is, in part, regulated by State/Church Agreements and in some cases by the Länder’s laws on private schools, under which varying amounts of subsidies may be granted to schools provided by voluntary bodies. In the Land of North-Rhine/Westphalia, for instance, subsidies to cover current expenses amount to

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more than 90 %. of such expenditure. According to a model calculation used in pertinent professional publications, the portion of subsidies allocated to church-provided schools in North-Rhine/Westphalia Land is estimated to amount to approximately 560 million €.

In the Federal Republic, there are 41 colleges/universities provided by Churches under varying funding schemes – ranging from full coverage of costs by the providing Church to Land funding covering the major part of expenses. For instance, the Land of Bavaria, under the provisions of the Concordat between the Holy See and the Eichstätt Catholic College, reimburses 85 % of the college’s expenditures. Reimbursement payments in 2003 amounted to some 30 million €. b) Conservation of monuments

The Churches are the owners of many listed buildings. Under the Land Acts on the Protection of the Architectural Heritage, the owner of a monument (historical building) is obliged to maintain and conserve the building, but is entitled to public subsidies for certain conservation measures. This regulation does not only benefit the Churches but other owners of listed buildings as well.

The Land of Bavaria, for instance, in 2003 provided funding for individual projects for the conservation of – listed – church-owned buildings to the amount of approximately 3 million €. According to an opinion prepared by the Scientific Service (wissenschaftlicher Dienst) of the German Bundestag of 26 May 2005, federal and Land subsidies for the conservation of church buildings were estimated to amount to around 138 million €.

Financial support is also provided for listed church buildings under the conservation programme "Cultural Architectural Heritage of National Value" (National wertvolle Kulturdenkmäler) funded by the Federation since 1950. For the major part, these are church building, monasteries, a few synagogues, and cemeteries. While, on account of the large number of church buildings of artistic value and of significance in terms of cultural history in Germany, approximately 50 % of promotional funds are dedicated to the conservation of this part of the architectural heritage, this is not a programme specifically designed to subsidize church-related conservation projects (total amount of subsidies granted in 2006: approx. 12 million €).

c) Charity work

Statistics regarding state-providing funding of charitable activities are difficult

to establish because, especially as regards social work carried out by Churches or their charities, the decentralized nature of the financial management of the various – legally independent - providing bodies and of their member institutions as well as the federal structure of the respective umbrella organizations, but also the

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diversified structure of public providing bodies at the Land and local government levels render collection of pertinent data impossible.

In particular, funding can be provided in the following forms: state support through grants and subsidies; reimbursement of costs or remuneration for services rendered, especially by means of user fees; and funding by the providing bodies.

In the areas of public assistance and children/youth welfare, but also as regards hospitals, there is a mixed structure of state and voluntary providing bodies. Under the pertinent special-subject laws, state institutions shall not be established if voluntary providing bodies (for public assistance or youth welfare) already exist, or can be expanded or established. The competent public authorities shall conclude agreements with voluntary providing bodies regarding the modalities of remuneration. Hospitals operated by voluntary providing bodies, on account of their inclusion in the hospitals plan, can provide medical care to the general public

The aforementioned provisions generally apply to all voluntary providing bodies; however, on account of historically evolved structures, church-operated social welfare associations ensure a major part of services in this area. It is estimated that two thirds of children’s day-care centres and 40 % of the existing nursing homes are provided by Churches.

Federal Budget funds to the amount of approx. 19 million Euro are allocated to associations providing private welfare work for central and international activities and for further training. Of this amount, about one half is allocated to the providing bodies of Diakonisches Werk (Protestant Church) and of Caritas (Catholic Church). Another 2.3 million € go to private welfare associations for services rendered to refugees and migrants. Of this amount, 460,000 € are allocated for the integration of Jewish immigrants. In addition, project-dedicated funds provided under various other budget headings are allocated to private welfare work association. d) Cultural activities

Out of the cultural affairs budget of the Federal Foreign Office, the Protestant Church and the Catholic Church regularly receive project promotion funds for their cultural activities abroad (in 2007: some 1.7 million €). 2.4 Indirect state financial assistance provided by waiver of tax payments

Indirect state financial assistance is provided to religious communities in the

following forms: • Exemptions from taxes and charges, e.g. from real estate, inheritance

and gift taxes; such exemptions are based, on the one hand, on having the status of a corporation under public law and, on the other hand, on the association’s purpose that, while not being exclusively religious, is tax-privileged (for details, cf. No. V above).

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• Tax deductibility of paid church taxes as "special expenses", and of membership fees and donations. In both cases, increased readiness to pay church taxes or to donate to tax-privileged projects and institutions may be expected.

Deductibility of church taxes alone accounted in 2006 for a reduction by approx. 3,16 million € of the tax receipts of the Federation and the Länder.

VII. Eventual church tax and its total amount in 2003, 2004, 2005, 2006

Church tax is a tax levied by religious communities from their members for

covering the expenses incurred by the given community. In Germany, only those religious communities that have the status of a corporate body under public law as defined in Article 140 of the Basic Law, in conjunction with Article 137, para. 5, of the Weimar Constitution (WRV), are entitled to levy church taxes.

As a rule, church taxes amount to 9 % of the personal income tax (8 % in the Länder of Bavaria and Baden-Wurttemberg) and, in accordance with the provisions of the pertinent Land laws, are levied together with other taxes by the revenue authorities an then transferred to the respective religious communities. For this collection of taxes, the Länder retain a reimbursement for services rendered of around 3 % of the respective church tax receipts (ranging from 2 % in Bavaria Land to 4.5 % in the federal state of Saarland).

The option of state collection of church taxes is used at present by the following

religious communities:

• the Land Protestant Churches and their parishes; • the dioceses of the Roman Catholic Church; • the Catholic Diocese of the Old Catholic Church in Germany; • the liberal Christian communities (Land Congregations of Baden, Mainz,

Offenbach and Palatinate); • the Unitarian Christian congregation "Freie Protestanten" (Liberal

Protestants); • the Jewish congregations ("Kultussteuer" - "religious services tax").

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As stated by the Federal Statistical Office (Statistisches Bundesamt), church tax receipts were as follows:

for the Dioceses of the Roman Catholic Church; Land Protestant Churches

in the years 2003 4,356 million € 4,012 million € 2004 4,026 million € 3,689 million € 2005 3,977 million € 3,649 million € 2006 4,252 million € 3,883 million €.

VIII. Percentage of personal income tax which could be directed by individual tax payers to chosen religious communities (if this possibility exists); the total amounts in 2003, 2004, 2005, 2006 and the distribution

to churches (if available)

German fiscal law does not provide for the option of allotting a fixed percentage of the personal income tax levied from individual taxpayers to the religious communities of their choice. The only option for taxpayers is to make individual donations to nonprofit institutions. Such donations are tax deductible up to specified maximum amounts.

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ANNEX: Basic Law for the Federal Republic of Germany 23 May 1949

Article 4 [Freedom of faith, conscience, and creed]

(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.

(2) The undisturbed practice of religion shall be guaranteed. (3) No person shall be compelled against his conscience to render military service

involving the use of arms. Details shall be regulated by a federal law.

Article 7 [School education]

(1) The entire school system shall be under the supervision of the state. (2) Parents and guardians shall have the right to decide whether children shall receive

religious instruction. (3) Religious instruction shall form part of the regular curriculum in state schools, with

the exception of non-denominational schools. Without prejudice to the state's right of supervision, religious instruction shall be given in accordance with the tenets of the religious community concerned. Teachers may not be obliged against their will to give religious instruction.

(4) The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to state schools shall require the approval of the State and shall be subject to the laws of the Lander. Such approval shall be given when private schools are not inferior to the state schools in terms of their educational aims, their facilities, or the professional training of their teaching staff, and when segregation of pupils according to the means of their parents will not be encouraged thereby. Approval shall be withheld if the economic and legal position of the teaching staff is not ade-quately assured.

(5) A private elementary school shall be approved only if the educational authority finds that it serves a special pedagogical interest or if, on the application of parents or guardians, it is to be established as a denominational or interdenominational school or as a school based on a particular philosophy and no state elementary school of that type exists in the municipality.

(6) Preparatory schools shall remain abolished.

Article 140 [Provisions respecting religious societies]

The provisions of Articles 136, 137, 138, 139, and 141 of the German Constitution of August 11,1919 shall be an integral part of this Basic Law. Article 141 ["Bremen Clause"] The first sentence of paragraph (3) of Article 7 shall not apply in any Land in which Land law otherwise provided on January 1, 1949.

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Appendix to the Basic Law Extracts from the German Constitution of August 11, 1919 [Weimar Constitution] Religion and Religious Societies

Article 136 (1) Civil and political rights and duties shall be neither dependent upon nor restricted by

the exercise of religious freedom. (2) Enjoyment of civil and political rights and eligibility for public office shall be

independent of religious affiliation. (3) No person shall be required to disclose his religious convictions. The authorities

shall have the right to inquire into a person's membership in a religious society only to the extent that rights or duties depend upon it or that a statistical survey mandated by a law so requires.

(4) No person may be compelled to perform any religious act or ceremony, to participate in religious exercises, or to take a religious form of oath.

Article 137 (1) There shall be no state church. (2) The freedom to form religious societies shall be guaranteed. The union of religious

societies within the territory of the Reich shall be subject to no restrictions. (3) Religious societies shall regulate and administer their affairs independently within

the limits of the law that applies to all. They shall confer their offices without the participation of the state or the civil community.

(4) Religious societies shall acquire legal capacity according to the general provisions of civil law.

(5) Religious societies shall remain corporations under public law insofar as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and the number of their members give assurance of their permanency. If two or more religious societies established under public law unite into a single organization, it too shall be a corporation under public law.

(6) Religious societies that are corporations under public law shall be entitled to levy taxes on the basis of the civil taxation lists in accordance with Land law.

(7) Associations whose purpose is to foster a philosophical creed shall have the same status as religious societies.

(8) Such further regulation as may be required for the implementation of these provisions shall be a matter for Land legislation.

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Article 138 (1) Rights of rehgious societies to public subsidies on the basis of a law, contract, or

special grant shall be redeemed by legislation of the Lander. The principles governing such redemption shall be established by the Reich.

(2) Property rights and other rights of rehgious societies or associations in their institutions, foundations, and other assets intended for purposes of worship, education, or charity shall be guaranteed.

Article 139

Sunday and holidays recognized by the state shall remain protected by law as days of rest from work and of spiritual improvement.

Article 141 To the extent that a need exists for rehgious services and pastoral work in the army, in hospitals, in prisons, or in other public institutions, rehgious societies shall be permitted to provide them, but without compulsion of any kind.

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FACTS ABOUT THE RELATIONSHIP OF STATE AND CHURCH IN HUNGARY

Dr. András Csepregi

Director of the Secretariat for Church Affairs, Ministry of Education and Culture

Ladies and Gentlemen!

It is my honour to greet the esteemed personalities of the various churches and public administration. I would like to extend a special warm welcome to head of the office Mr. Drago Cepar without whom today’s meeting would not have been possible.

It is a great honour to be here in Slovenia and give this presentation to you about the relationship between the state and church in Hungary. Introduction

I am very pleased about the great interest shown, which proves how important and timely this topic is. I firmly believe that the issue of the relationship of state and church, politics and religion is important both within the European Union as well as outside its boundaries.

The significance of the issue is further underscored by the debate that has been sparked in connection with the religious aspects of the Constitution of the European Union, namely with regard to what the correct forms and extent of representing religious values and creed in public life are. In view of the fact that there is no “European model” that can be applied to the relationship of state and church as it were, Member States relate to the various churches and congregations based on their own specific types of self-determination. The answer to the question, one might ask, as to which of these is best—the strict French model of separation, the German system that incorporates connecting elements, or the English model that accepts the secular, formal nature of the state—depends on one's own convictions.

I. The Relationship of the State and Church in Hungary

In the course of the nationalisation after 1949, the various churches have been

put under great economic and political pressure and have suffered the negative consequences of autarchy. They lost their lands, production assets and most of their institutions. Nationalisation has therefore diminished the social influence of churches considerably.

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During the regime change, demanding that the new leadership re-establish the public esteem and social role of the church was a generally accepted point of view. This was the period during which the laws and agreements determining the relationship of state and church today were created.

The Hungarian Constitution and Act IV of 1990 guarantee that the state and Church operate separately in Hungary. The state is neutral with regard to issues of faith. On the other hand, separation and neutrality do not preclude the state’s prerogative to recognize the specific characteristics that differentiate the various churches from other types of social organizations, associations and representative organizations. The legislative provisions allow the state to cooperate with the various churches in connection with their public service activities, to subsidise the operation of the various churches with material funds, thus furthering the implementation of basic constitutional rights.

The legislation that has been passed in this topic since the regime change has established the guarantees of the free operation of the Church. Within the opportunities created by the rule of law and within the state budget, each government—based on their own concepts—ensured the basis for the social role of churches, guaranteed their autonomy, recognised and subsidised the services of churches performed in the interest of society. It follows from the provisions of the Act that the Hungarian system of relations of church and state is based on “partnership”, in which the parties try to address arising problems together.

I. 1. Regulation and enforcement of the legal status of churches I. 2 a. Act XX of 1949 the Constitution of the Republic of Hungary

The Constitution of the Republic of Hungary sets out the freedom of religion (Paragraph 1 of Article 60) and the separation of Church and State (Paragraph 3 of Article 60)1. Pursuant to the Act the state shall have no institutional relations with any churches or congregations; shall be of neutral ideology, therefore shall not form opinion in issues of ideology and shall refrain from influencing the beliefs of citizens in any way. These principles, along with other freedoms, e.g. the freedom of religion, were also violated during the single-party state dictatorship.

1 Article 60, Paragraph (1) In the Republic of Hungary every person has the right to freedom of thought, freedom of conscience and freedom of religion. (2) This right shall include the free choice or acceptance of a religion or belief, and the freedom to publicly or privately express or decline to express, exercise and teach such religions and beliefs by way of religious actions, rites or in any other way, either individually or in a group. (3) The church and the State shall operate separately in the Republic of Hungary. (4) A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on the freedom of belief and religion.

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I. 2 b. Act IV of 1990 on the Freedom of Conscience and Religion and on Churches

Act IV of 1990—the Conscience Act—states that the state recognises the freedom of conscience and religion as basic human rights and determines the rules of the foundation of churches: these churches are registered by the court based on the joint declaration of 100 people. Subsequently, the churches that have attained legal church entity will have identical rights and obligations.

The Act in question also has great significance in terms of church financing:

besides religious activities the church as a legal entity may also perform teaching-educational, cultural, social, healthcare, sport, child and youth protection activities as well. The activities listed here qualify as compulsory state responsibilities, which means that by definition of the law, churches performing public services receive equal budgetary subsidies as state institutions. This is the principle of equal financing.

Another fact that proves the significance of the Act is that it states that the church is not a sub-system of the state, but an organisation that qualifies as an autonomous legal entity, which the state considers an equal partner. As a result the state does not form the state-church relationship unilaterally, but together with the church.

The Act reinforces the constitutional separation of state and church and declares that the state shall not establish organisations to control or supervise churches2. The State Office for Church Affairs (Állami Egyházügyi Hivatal) dissolved in 1989 without a legal successor. Subsequently, state contact with churches—besides the partnership—took on a thousand forms in terms of organisational levels and position. At present the Secretariat for Church Relations (Egyházi Kapcsolatok Titkársága) operates as part of the Ministry of Education and Culture.

Churches registered in accordance with the principles of the Act are treated equally. The Act does not differentiate between churches, congregations or communities, regardless of social significance or the number of members. The colloquially used phrase “historic churches” is not based in this Act. This phrase usually refers to catholic, evangelic, Calvinist or Jewish congregations, stressing their domestic roles compared to other congregations. The following factors set hurdles to the apt enforcement of the Act and its adaptation to the changed circumstances:

- Act IV of 1990 was directly created as an implementation of the constitutional provision; its amendment requires qualified majority in Parliament, which should be based on a broad based political consensus.

2 Article 16, Paragraph (1) the state shall not establish organisations to control or supervise churches.

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- The provisions of the Act regarding the foundation of churches are among the “most liberal” in Europe: in the course of registering the church the court is only authorized to examine whether formal requirements are met and whether church activities conflict with the constitution or other legislation or not3. The court is not authorised to examine the principles of faith to uncover if the organisation is in fact founded for religious purposes.

- In recent years the number of registered churches in Hungary has been steadily

increasing4. A possible reason for this increase could be the fact that organisations are performing business activities hiding behind a religious mask. This opportunity is not excluded by the Church Financing Act either. The appearance of these “semi-churches” and their unclear activities could prove to be disadvantageous for Hungarian society and could violate the trust placed in churches.5

I. 2. c. Act XXXII of 1991 on the settlement of the ownership of former church real estate

The so-called Real Estate Settlement Act was adopted by Parliament on 22 July 1991 following a lengthy debate. Based on functionality6, the Act provided opportunities for churches to reclaim their former real estate nationalised and built-in without compensation after 1 January 1948 which were used for religious, teaching/educational, social/healthcare or cultural purposes prior to nationalisation, and which the church wishes to continue to use for similar purposes in the future and which were in the possession of the state or a municipality at the time when the Act entered into force. In order to settle the ownership rights of these properties a conciliation committee was formed from members of the state and representatives of the concerned churches, meeting on an

3 8. (2) A church can be founded for purposes of performing any type religious activities that do not conflict with the Constitution or other laws. 4 In accordance with the APEH (Hungarian Tax Authority) statement on the disposal of 1% of the Personal Income Tax in 2008,147 churches received tax donations. Apart from these, there were also churches, which either did not take advantage of the tax donation system or did not have technical numbers as yet. Only the county or metropolitan courts would be in the position to prepare a precise, up-to-date registry. Based on unofficial data the number of registered churches is close to 190. 5 Miklós Tomka: Value Systems and Changes in Religion in Europe and in particular in Hungary based on the Results of the European Value System Study and Other Pieces of Research. Budapest, September 2000, p. 78. 6 Functionality: real estate can only be requested for purposes set out by the law, and only if the real estate served similar purposes prior to nationalisation. Their original function, however, may not only be provided by handing over the original real estate, but also by providing replacement real estate or financial compensation. Naturally, in the latter case the church must use the funds to establish a real estate with the original function.

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annual basis. The government set 31 December 2011 as the target date for the handing over of catalogued church real estate, which handover will be implemented according to an annual, steady, ad-valorem schedule.

In September 2005, the government adopted a decision on the acceleration of the settlement of church properties in order to discuss all real estate claims that are to be settled by 2011, to catalogue these properties, to submit this catalogue to the government by March 31, 2006 and to schedule the payment of compensations for the 2007-2011 period.7

The Reformed Church of Hungary and the Evangelical-Lutheran Church of Hungary chose not to take advantage of the acceleration option, and instead asked for the guarantee of the previous negotiation mechanism. The outcome of the Real Estate Settlement Act

Taking into account that after the regime change the state played a role in

getting churches back on their feet, and also the fact that the state recognised and supported the role of churches in performing public service tasks, the Real Estate Settlement Act contributed to ensuring the institutional conditions for freedom of religion.8

One of the most important outcomes is that over the course of the real estate settlement process ownership rights were cleared up. The church institutions concerned may continue their public service and religious missions if they decide to do so. Another factor not to be overlooked is that due to the cleared up ownership rights these institutions may now participate in tenders of the European Union.

This process leads to a decrease in the interdependency between state and church, thereby ensuring the better constitutional separation of state and church.

The acceleration of the real estate settlement process allowed churches to sell their claims set out in administrative decisions to financial institutions, advancing the scheduled payment of compensation. This more or less meant the end of the real estate settlement process, and the state remained “indebted” only towards the reformed and evangelical-Lutheran churches.

7 The escalation rate to be applied for the period in question was determined by the Ministry of Finance (3-month Budapest interbank rate – BUBOR - + 10 basis points). The Hungarian Catholic Church, the Hungarian Assembly of Jewish Congregations (MAZSIHISZ) and the Serbian Orthodox Diocese of Buda exploited this opportunity. The real estate affairs of the three joining churches were discussed. In 2006, the government accepted the Jewish and Serbian catalogues (five properties - 877 million HUF) and the Catholic catalogue (430 properties – 23.5 billion HUF). 8 János Dobszay: Closing church real estate settlement. In.: HVG February 24, 2006 http://hvg.hu/hetilap/200608HVGFriss2181.aspx

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I. 2. d. Act CXXIV of 1997 on the Financial Conditions of the Religious and Public Service Activities of Churches

The so-called “Church Financing Act”, which entered into force on January 1,

1998, applies to all registered churches. Pursuant to the provisions of the Act, churches are allowed to generate their own income and to perform business activities. The data related to the collected church-maintenance allowance and the amount of collected donations, and how these funds are utilised may be viewed by anyone.

The Act also regulates the scope of activities that may be pursued by churches and do not qualify as business activities.

In connection with the settlement of the ownership rights of former church real estates the Act also permits the claims towards the real estate in question to be transformed into an allowance source (see Point II.4. d. of chapter "Subsidies for the religious activities of the churches”).

Furthermore, the Act states that churches are entitled to 1% of the personal income tax paid by private individuals based on the declaration of said individuals. If the total amount of such donated funds does not reach 0.5% (increased to 0.9% in 2002) of the total personal income tax paid in the given year, then the state supplements this amount from the budget and the supplemented amount is distributed between the various churches in proportion to the 1% donations they received.

Based on the provisions of the document, church and municipality-maintained institutions receive equal subsidies from the state, the extent of which is determined by the annual budget. The provisions also apply to the central budget financing of all teaching/educational, higher education, cultural, social, healthcare, sports, youth and child protection activities. Church institutions receive above “base normative quota” subsidy from the central budget. This means that this subsidy does not burden the budget of municipalities and is one of the essential elements of the Act.

The church, church libraries, museums and archives that perform public service activities or which are part of the cultural heritage receive subsidies equal to that of state institutions for the preservation and restoration of historical real estate and works of art in their possession.

Beyond this the state also undertakes to subsidise religious education by the church based each year on the average hourly wage of teachers.

I. 3 The social situation of churches in Hungary

Following the regime change churches regained their autonomy and besides

their work in the field of religion, they also play important roles in the country’s life through their cultural, teaching-educational, social and healthcare activities. Their help is particularly significant over Hungary’s borders in times of natural

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disasters, but also within the country, e.g. helping flood victims, caring for the homeless, providing moral support to hospital patients, but they are also present in prisons and throughout the rehabilitation of addicts. Within their own community facilities, churches provide the possibility of for various social groups to meet.

How does public opinion view this role, these activities of the church, and their position in society?

In the summer of 2006 the government established a committee headed by Pál Tamás sociologist to evaluate the experiences of the Vatican Agreement and to examine the relationship between the state and churches.9

According to the survey people believe that in Hungary the coexistence of the religious, non-religious, Christians, Jewish, Catholics and Protestants is peaceful. Nearly fifteen percent of the population goes to church at least once every month. The majority believes in god, however does not follow the teachings of any church – they are religious in their own way.

There are over more than one hundred registered churches in Hungary. Nearly two thirds of those answering the survey felt that it would be “quite” or “very” useful if everyone in public education would learn about religion, however there were disagreements as to whether this variety of religious organisations was to the advantage of society.

According to the survey there is no public agreement as to what role society would like churches to play. This complicates the task of churches in choosing their direction and roles, while they acknowledge that there is no confidential relationship between society and churches.

I.4. The “Vatican Agreement” I. 4. Act LXX of 1999 on the proclamation of the agreement signed on 20 June 1997 in Vatican City, entered into by the Republic of Hungary and the Apostolic Holy See on the financing of the public activities and activities connected with religious belief conducted by the Catholic Church in Hungary and on certain financial issues

The essence of the Act, also known as the Vatican Agreement is to provide a framework for the relationship of state and church, which has undergone structural changes. The agreement made between the Hungarian State and the Holy See is particularly significant because it elevates the relationship the Hungarian state and the church to an international level. One of the unique characteristics of the Agreement is that it serves as a standard not only to the Hungarian Catholic Church, but also to all registered churches.

The “Vatican Agreement” entered into by the Republic of Hungary and the Apostolic Holy See was finally signed on 20 June 1997 in Vatican City by Gyula

9 Report by the Committee on the Analysis of the Outcomes and Effects of the Vatican Agreement, November 2006;

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Horn, Hungarian Prime Minister at the time and Angelo Sodano, Cardinal Secretary of State.

I. 4. a. The significance of the agreement, and its innovations in terms of content

Since in Hungary the Church Financing Act was adopted prior to the Vatican

Agreement, some of the new legislation was already integrated into the Hungarian legal system and applied, therefore their inclusion in the international agreement only served to increase the stability of the norms.

The essential points of the Church Financing Act became important items within the Agreement, e.g. the provision on the 1% tax donation, the principle of financing equal to municipal institutions in case of taking up public service missions or the introduction of the allowance system. It also further detailed the technique of financing the taking over of state public service missions—the so-called church supplementary subsidy.

The equal financing of church and state higher education institutions is first featured in this Agreement. Before this the state was free to decide on and was not obligated to subsidise the teaching of subjects related to religion in higher education.

In connection with the protection, restoration and extension of the cultural heritage (museums, libraries, archives, historical real estate, public collections) the state for the first time ever had undertaken to provide subsidies to church-maintained institutions identical with those provided to similar type of institutions maintained by the state. Other new elements in the Agreement are that the church shall consider its existing claims based on the Real Estate Settlement Act as settled claims and the state shall not narrow the list of benefits and tax exemptions without the approval of the church. Following the promulgation of the agreement in domestic law, the new elements were enforced by the Hungarian state in its own legal system.

Summary

Owing to its international context, the Agreement provides security and

predictability to the church, as it requires the state’s commitment to subsidise churches, and in the future, it will become more difficult to use church financing as a tool in political battles. The agreements contained within can only be amended with the approval of the Catholic counterpart of the agreement.

As a result of its significance, the Agreement “decreases the political manoeuvrability of internal political forces and leads to a greater stability in the operation of the church. Since according to the principles of the separated state, the state must relate equally to all churches in legal terms, therefore, whatever the Catholic Church has achieved is also “due” to other churches. This means that

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increased stability and law of the land is also available to other churches and is a step forward compared to the previous situation.”10.

The other side of the coin is “smaller” government elbowroom. The established financing system was adapted to the institutional situation of 1997 and the changed circumstances require the settling of several issues. This primarily concerns the areas of education and social welfare benefits, but a review of the issues of religious subsidy, tax exemption and exemption from duties must also be performed. Current reform processes concern all segments of society, and churches cannot shy away from the processes materialising in Hungary by hiding behind an international agreement.

Ever since it entered into force, the Vatican Agreement has been at the centre of internal political battles. On the one hand, there is a constant observation that it would have made more sense to lay down the components of the agreement in a “simple” law instead of elevating them to an international level; on the other hand, it is still debated whether the subsidisation of religion via public funds is compatible with the principle of the separation of state and church.

II. 1. Budgetary Subsidies for Churches

Planned subsidies for churches are appropriated separately in the central budget,

as subsidies for religious and other purposes, and as subsidies for commitments and undertakings by churches serving the good of the public. Appropriation according to chapters is the result of the delegation of tasks between the various ministries involved.

Central budgetary contributions for churches are featured among the appropriations of the Ministry of Education and Culture managed by chapters, which are the following:

- Subsidies for public church collections and institutions of culture - Subsidies for religious education - Basic operation of churches, disposal over and supplementation of 1% of the Personal Income Tax - Allowances paid after non-transferred real estate - International activities of churches - Income supplements for clergy employed in settlements with a population of less than 5000 - Church Cultural Fund (building and reconstruction of real estate) - Church education and culture

10 Towards a New Church Policy – Should the Vatican Agreement be amended? Pamphlet, Nézőpont intézet, October 2006, pp. 26-35

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II. 2. Subsidies granted for the Religious Activities of Churches

There are no laws specifying the scope of subsidies granted for the religious activities the churches. Subsidies for religious and public purposes overlap in both the Act on the Financing of Churches and the Vatican Agreement. It is not determined which subsidies should be considered as ones serving religious purposes, and which are the ones that do not qualify as such, and this often leads to misunderstandings and arguments between the parties involved. For example, subsidies for religious education or for supplementing the income of country clergy cannot be clearly categorized. There are certain views, according to which the reason why they cannot be categorized as subsidies for religious purposes is that instructors of religious studies perform a kind of public educational role as well, while this is not part of public education as such. On the other hand, when it comes to country clergy, the category, which they belong to also, depends on creed, or political views.

1. ) 1% of PIT donation scheme

2003 2004 2005 2006 2007 2008

1% of PIT, in HUF

and EUR million

8 933.3

Ft € 37,5

11 462.4

Ft € 48,11

11 829,8

Ft €49,66

12 243.2

Ft €51,40

10 819.0

Ft €45,42

11 862.0

Ft €49,8

0 Number

of subsidized churches

104

113

118

127

137

147

Source: OKM Secretariat for Church Relations Euro/Forint central rates 1 EUR=238.21Ft (August 29, 2008)

Since 1997, people paying personal income tax have been able to donate 1% of

their PIT directly to one of their preferred churches. That is, every registered church is entitled to be included in the 1% PIT donation scheme. The only condition that applies is that churches are required to apply for a technical number at the competent office of the Hungarian Tax Authority.

Subsidies provided for churches have significantly and gradually increased in the course of budgetary legislation between 1990 and 2006, in accordance with the volume of tasks that they have undertaken. A partial decline in this trend was only observable in the 2007 central budget, which restored the consolidated tax base-based (progressive) approach to the 1% PIT donation scheme.

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The central budget supplements the payments of private individuals to reach a so-called guaranteed extent. Upon the initiative of the Government, Parliament increased this guaranteed extent in 2004 from 0.8% to 0.9%. With this measure of increasing the extent of subsidies the Government has not only provided support for the operation of churches, but it also compensated for the fact that as a result of Hungary’s accession to the EU, VAT refunds are no longer possible. Pursuant to the provisions of the Vatican Agreement, the 2007 central budget has changed over to a 0.9% of (progressive) PIT calculated from the consolidated tax base minus the allowances.

According to the new concept, starting in 2009 the principle of “1+1” will be applied, meaning that the state will no longer supplement the donated amounts to 0.9% of the PIT, rather it will supplement them with an amount equal to the donation itself; which will continue to be distributed in accordance with the provisions of the Vatican Agreement, in proportion to the number of contributors.

2.) Allowances paid after non-transferred real estate

2003 2004 2005 2006 2007 2008

Allowances paid in HUF

million

7 421.4Ft

€31,15

7 400.3Ft

€31,07 7 843.6Ft €32,93

8 000.5Ft €33,59

8 710.0Ft €36,56

8 990.0Ft €37,74

Number of subsidized churches

6

6

6

6

6

6

Source: OKM Secretariat for Church Relations The Government fulfils the commitments it has undertaken in the agreements

concluded with the churches related to former church real estates not redeemed in kind by the churches and used as benefit base. In 1997-1998 this arrangement, which was regulated by the Vatican Agreement and other bilateral agreements, on the one hand made the process of restoring rightful ownership—which commenced in 1991—enforceable both in respect of time and budget funding, and on the other hand ensured that sources of income were uninfluenced by daily policy developments for the churches and public service organizations.

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3.) Income supplements for clergy employed in settlements with a population of less than 5000 2003 2004 2005 2006 2007 2008

Income supplements

paid in HUF/EUR

million

1424,0Ft €5,98

1495,2Ft €6,28

1535,2

Ft €6,44

1565,9Ft €6,57

1620,7Ft €6,80

1620,7Ft €6,80


10

22

25

25

25

25

Source: OKM Secretariat for Church Relations In its agreements concluded with the churches that operate nationwide, the state

has undertaken to support the community work performed by the clergy, thus facilitating the population retaining services of these members of the clergy. Since 2004, pursuant to a Government Resolution, the Government supports the community-building activities of an additional 12 Hungarian-speaking churches in neighbouring countries. Based on an agreement and negotiations conducted with three churches in Hungary, starting in 2005 community-building activities have been supplemented with three additional churches. 4.) Subsidies for religious education

2003 2004 2005 2006 2007 2008

Subsidies

for religious education in HUF/EUR million

3601,5Ft €15,12

3601,5Ft €15,12

3305,4

Ft €13,88

3305,4Ft €13,88

3305,4Ft €13,88

3305,4Ft €13,88


37

41

45

46

46

47

Source: OKM Secretariat for Church Relations By supporting religious education, and transmitting intellectual, cultural values

and knowledge, the state provides children participating in public education with the (non-mandatory) opportunity of enforcing their rights associated with parents’ and children’s freedom of religion, education and conscience. Every church that applies for the subsidy is eligible. In 2003, 517 370 children, whereas in 2006, 492 065 children participated in this type of training. The drop in participating children’s numbers can be attributed to a general decline in the number of children.

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5.) Subsidies for the international activities of churches

Subsidies or

churches 2003 2004 2005 2006 2007 2008

Subsidies for international activities

62.0Ft €0,26

62.0Ft €0,26

20.0 Ft €0,08

16.0Ft €0,07

0 0


9

10

7

7

0 0

Source: OKM Secretariat for Church Relations As of 2007, the legal title of subsidies for international activities has been

terminated. The subsidy now serves the purpose of supporting churches that have programmes aimed at facilitating accession to the EU and programmes aimed at integrating the Hungarian churches in neighbouring countries.

“Public service” subsidies for churches 1.) Subsidies for church collections and church-maintained public educational institutions

2003 2004 2005 2006 2007 2008 Subsidies for church collection maintainers

792.6Ft €3,33

794.1Ft €3,33

805.6Ft €3,38

500 Ft €2,10

500 Ft €2,10

350 Ft €1,47


14

14

14

14

14

14

Source: OKM Secretariat for Church Relations The Vatican Agreement, the Act on the Financing of Churches, and the

agreements concluded with the various churches set out that the Hungarian state shall support the operation of archives and libraries operated by the organizations and institutions of the various churches. The budgetary subsidies thereof shall be determined—taking the current financial standing of the national economy and the tasks to be performed into account—, in accordance with the Vatican Agreement, based on the subsidy amounts determined for 1997.

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2.) Church Cultural Fund11

2003 2004 2005 2006 2007 2008 Church Cultural Fund

1 272.7Ft €5,34

1 632Ft €6,85

511.0Ft €2,15

430.0Ft €1,81

544.9Ft €2,29

350Ft €1,47


143 231 115 67 74

Source: OKM Secretariat for Church Relations By 2005 the appropriations referred to in the title have been consolidated into

one appropriation, and since 2007, the title “Church Cultural Fund” has been changed to “Reconstruction of the cultural heritage and other capital expenditure of churches”.

Using the subsidies in accordance with the rules of project financing, the Government has been facilitating the reconstruction and construction project costs of historical and non-historical real estates owned by the various churches. Key governmental programmes are obviously not featured in the appropriation, e.g.: reconstruction of the Basilica of Budapest (HUF € 2,94 million in 2003), or that of St. Matthias Church, etc. Churches are occupants and owners of 30% of built heritage. The subsidy also covers capital expenditure projects of Hungarian-speaking churches in neighbouring countries.

The amount of these subsidies has gone down significantly, although they have been somewhat mitigated as far as churches are concerned by EU funds that have become accessible following accession to the EU: SAPARD: HUF € 5,46 million in 2004; AVOP: HUF € 4,20 million in 2005. 3.) Subsidies for church education and culture

2008 Subsidies for church education and culture

50Ft €0,21

Number of subsidized church programmes 15 Designed to provide support for the work undertaken by the churches in

Hungary and in the neighbouring countries, as well as that undertaken by church-organized Roma missions, this appropriation has been incorporated in the 2008 budget as a form subsidy.

11 The title of the appropriation has changed several times. First it was called "Real estate provision for public service church tasks", now it is referred to as “Reconstruction of the cultural heritage and other capital expenditure of churches”.

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Budgetary Appropriations for Church Purposes

2007 2008

Name of legal title € million € million

Public collections and public educational

institutions of the church € 2,10 € 1,36

Religious education € 13,88 € 13,88 Basic operation of churches, disposal over and supplementation of 1% of the Personal

Income Tax € 45,42 € 49,80

Allowances paid after non-transferred real estate € 36,56 € 37,74

Income supplements for clergy employed in settlements with a population of less

than 5000 € 6,80 € 6,80 Church Cultural Fund (Reconstruction of

the cultural heritage and other capital expenditure of churches) € 2,29 € 1,36

Subsidies for church education and cultural purposes None € 0,21

Total central budgetary contributions for churches € 107,05 € 111,15

Source: OKM Secretariat for Church Relations

III. Financing of Public Tasks Taken Over from the State III. 1. Regulation of Public Education Financing

Today, in Hungary 4.7% of public educational institutions are

maintained/operated by the 14 registered churches and their organizations. 91 thousand children attend these kindergartens and schools. The distribution of children attending these institutions tends to vary greatly: Only one in forty kindergarteners attend church-maintained kindergartens, one in forty vocational secondary school students go to church-maintained vocational secondary schools, one in seven high school students attends church operated high schools, and one in seven dormitory facilities in public education are maintained by the church.12 12 Source: Ministry of Education and Culture, Secretariat for Church Relations, László Hegyi Senior Advisor

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Pursuant to the relevant act, churches that perform public educational tasks are entitled to the same budgetary subsidies as state-owned (municipal) institutions.

The actual cost of public educational tasks exceeds the normative quota provided by the state, but both state- and church-operated institutions receive benefits pursuant to the same criteria, in proportion to their number of students. Based on the budget and collaterals available to the municipality in question the state provides an additional supplementary subsidy to church school maintainers. In addition to the base normative quota, the central state budget transfers additional support required for the operation of church-operated institutions in the form of a supplementary subsidy. Municipal and foundation-operated schools are not eligible for supplementary subsidies of this sort, as they are required to provide for any additional funding they might require.

This supplementary church subsidy is the actual Achilles heel of the relationship of the state and church in Hungary. The extent and method of determining this supplementary subsidy sparks increasingly heated debates between the state and institution-operating churches during the adoption process of the acts on the budget and closing of accounts.

Churches say that the institutions they operate are discriminated against, and that the principle of equal financing is not enforced. The Government on the other hand says that it provides church-operated institutions the same financing that municipal school operators receive.

How does the supplementary subsidy for churches work within the framework of church agreements?

1. The supplementary protocol to the Vatican Agreement provides for the calculation method of the supplementary subsidy, the main point of which is that it takes into account the public education expenditure of the municipalities relative to the number of students attending municipal schools. The subsidy amount thus calculated is in essence a national average, as wealthier and less wealthy municipalities finance their schools to different extents. Therefore, the benefits received by church-operated schools reflect the national average, regardless of where these schools are actually located.

2. Certain provisions of the 1997 Agreement have become obsolete, as they do not reflect the current situation of the financing of public education. This sketchy formula has no basis in economics of financing techniques13.

The Church and the Government have entirely dissimilar ideas regarding the calculation of the supplementary subsidy. There are no common guidelines, which is why operative calculation will continue to remain a problem. This problem could be solved by defining the details of and working out a new method for the supplementary subsidy system. This should be conditional on the review of the Vatican Agreement.

13 Report by the Committee on the Analysis of the Outcomes and Effects of the Vatican Agreement, November 2006, p. 28.

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III. 2. Social Welfare Benefits

Among others, public services cover the notion of social welfare benefits, which

include child protection, social care, social benefits, family allowance and pensions14. Churches in Hungary largely contribute to this social welfare system.

Act IV of 1990 regulates the licensing of institutions desiring to perform social welfare tasks. The state ensures that church-operated social welfare institutions receive the same state normative quota as municipal social welfare institutions.

Act III of 1993 only refers to legal church entities in the sections relevant to social welfare benefits that relate to personal care. The Vatican Agreement elevates the state guarantee for the normative financing of social welfare institutions to an international level, thereby diminishing the influence of political forces. At the same time, it refers to the social welfare area the area of public education in the same chapter, as it defines both as public services.

III. 3. Sections relevant to Higher Education

Article 3 of Chapter I of the Vatican Agreement contains the sections relevant

to higher education. This article states that the state shall guarantee training support and student benefits after every non-theology student admitted to church-operated institutions of higher education before January 1, 1997 in the same amount that is provided to state-owned institutions under a similar legal title of normative quota. Institutions shall receive "the same normative quota for training and student benefits, as well as any other support provided pursuant to the Higher Education Act as state-owned institutions” after every student that was admitted to state-financed training after January 1, 199715.

The Agreement goes into great detail regarding the various financing methods, such as the maintenance of institutions and dormitory facilities, in terms of which the state guarantees; housing aid, and other, faith related specificities relevant to “accredited” institutions of higher education. It also states that the number of state-financed theology students may not exceed 2500 per year.

In addition, the agreement stipulates that the parties thereto shall review the situation after 5 years of the conclusion thereof, taking experiences gathered so far into account. This has not happened to date yet, but any eventual church financing related negotiations may also involve the review of this agreement 16.

14 Towards a New Church Policy – Should the Vatican Agreement be amended? Pamphlet, Nézőpont intézet, October 2006, pp. 56-57 15 Act LXX of 1999 on the Ratification of the Vatican Agreement 16 Report by the Committee on the Analysis of the Outcomes and Effects of the Vatican Agreement, November 2006, p. 28.

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377


COMMUNITIES

Dr. Maura CURCIO Director of the Division for Matters Concerning non-Catholic Creeds,

Ministry of the Interior

Religious freedom is a very extensive and extremely complicated topic. It can be regarded under the theological aspect (freedom of faith), under the philosophical point of view (freedom of thought), under the confessional aspect (freedom of the different creeds to organize themselves according to their statutes), finally under the political point of view (religious freedom guaranteed by the State to its citizens). Religious freedom as a legal principle and concept materializes in the regulation of very delicate social relationships between the individuals, with the task of mantaining in the society some legal conditions, which are necessary in order to enable everybody to pursue and to achieve religious aims.

I. Information about State Agency or Ministry in Italy competent for churches and religious communities. Their competences, number of

employees and annual budget

In Italy the State institutions which are competent for religious matters are: 1) The Prime Minister Bureau, according to the Law August 23rd 1988, n. 400,

which, through the “Office for Institutional Relationships – Division for Relationships with Religious Creeds”, has a specific competence concerning the stipulation of agreements with non-Catholic creeds, according to art. 8 of the Italian Constitution.

2) The Ministry of the Interior, through the Department for Civic Liberties and Immigration – Central Direction for Religious Creeds, has competence to control the observance of laws regulating religious matters, in order to accomplish the right to religious freedom, which is guaranteed by art. 19 of the Italian Constitution, and mantains as well relationships with the central bodies of the Catholic Church and of the other religious creeds.

The Central Direction for Religious Creeds is divided into: a) one “Office for the Policies of Religious Creeds and for External

Relationships”, which, among other things, pursues some comparative studies about the situation of religious creeds in other States;

b) two Divisions for “Matters Concerning Catholic Creed” and for “Matters Concerning non-Catholic Creeds”;

c) one “Division for Legal Matters Concerning Religious Bodies”.

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The competence of the “Division for Matters Concerning the Catholic Creed” is responsible for relationships with the Catholic Church deriving from the Concordat Law. The relationships between State and Catholic Church have been regulated first by the Treaty and Concordat of 1929, and then reshaped by a new Concordat, consisting of a so-called Revision Agreement of February 18th 1984 and of a related Additional Protocol between the Italian Republic and the Holy See, furthermore by the Law May 20th 1985, n. 222, with “Provisions on Ecclesiastical Bodies and Properties in Italy and on the Maintenance of Catholic Clergy Being in Service in the Dioceses”, and finally by the Decree of the President of the Republic (D.P.R.) February 13th 1987, n. 33.

It is since some years that the “Division for Matters Concerning non-Catholic Creeds” is steadily increasing its importance because of the proliferation of new religious communities, which is an effect of the massive immigration from non-EU countries.

II. Legislation related to religious freedom and religious communities accepted after 1990. List of laws on religious freedom and agreements

between State and religious communities Our fundamental Law, the Constitution, abides by the values of laicism and

pluralism towards religions and churches. Religious freedom is guaranteed by our Constitution, which became effective

from January 1st 1948. Relationships with the Catholic Church are regulated by the Concordat of 1985. As to the other religious faiths, one has to distinguish between those which have

not stipulated agreements with the State (a possibility which is foreseen in art. 8, par. 3, of the Constitution), and those which have done so.

Regarding the first ones, the current legislation is the Law June 24th 1929, n. 1159, with “Provisions Concerning the Practice of Religious Rites Allowed by the State and Marriage Celebrated Before the Ministers of Religion”, and the subsequent decree for the enforcement of this law (Royal Decree February 28th 1930, n. 289).

In the following time the Italian Constitutional Court has made some adjustments and changes to this old legislation in order to attune it to the innovatory principles of our Constitution.

On the other hand, the relationships between the Italian State and those non-Catholic religious creeds which have stipulated agreements with the State are regulated by specific laws through which those agreements have been aknowledged by the State.

1. Tavola Valdese (Waldensian Table) – Law August 8th 1984, n. 449, modified by Law October 5th 1993, n. 409;

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2. Unione delle Chiese Cristiane Avventiste del Settimo Giorno (Union of the Seventh-day-Adventist Christian Churches) – Law November 22nd 1988, n. 516, later supplemented with Law December 20th 1996, n. 637;

3. Assemblee di Dio in Italia (Assemblies of God in Italy) – Law November 22nd 1988, n. 517;

4. Unione delle Comunità Ebraiche Italiane (Union of the Jewish Communities in Italy) – Law March 8th 1989, n. 101, later supplemented with Law December 20th 1996, n. 638;

5. Unione Cristiana Evangelica Battista d’Italia (Evangelical Baptist Christian Union in Italy) – Law April 12th 1995, n. 116;

6. Chiesa Evangelica Luterana in Italia (Luteran Evangelical Church in Italy) – Law November 29th 1995, n. 520.

At the present time a Commission set up by the Prime Minister Bureau, the Interministerial Commission for Agreements with Religious Creeds, is dealing with some religious communities in order to stipulate six other agreements and to bring two modifications into the already existing agreement Laws.

III. Government’s plans for changing legislation in this field (drafts of

acts) The First Commission of our Chamber of Deputies is currently discussing a new

parliamentary bill with “Rules Concerning Religious Freedom”. Its aim is the accomplishment of the constitutional principles in matters of freedom of conscience, of religion and creed, and the abrogation of the above-mentioned Laws of 1929 and 1930 on the so-called “allowed creeds”.

The bill contains six items: 1: concerns the general principles, i.e. the meaning of the right to religious

freedom; the freedom of religious creeds and their independence; the ministers of religion;

2: regards the procedure for registration in the register of religious creeds and the modifications to statutes;

3: concerns the rights of the religious creeds which are registered (burial, social security, religious buildings);

4: contains provisions on religious marriage with civil effects; 5: contains provisions on the procedure for the stipulation of agreements; 6: contains final and temporary provisions. The bill follows two lines: one related to the individual dimension through the

assertion and the defence of the rights to religious freedom and freedom of conscience, and another one relating to the issues of religious communities as associations.

The bill aims at accomplishing the constitutional guarantees of individual and collective rights, connecting these guarantees to the provisions of international covenants on human rights, which have been signed ad ratified by our country.

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Another purpose of the bill is to define the principal contents of religious freedom and freedom of conscience. It reaffirms the principle of non-interference of the State in the organization of religious creeds according to the principle of laicism, which nevertheless does not mean indifference.

IV. Educational activities of churches and religious communities; number of schools and universities established by churches and

religious communities; number of students attending their programmes.

In Italy the relationship between State and private school has undergone many

ups and downs. It is a long time that the Catholic Church has asked for a substantial equality

between State school and private school, also from the point of view of financial support. But the main hindrance is the constitutional provision, according to which the right of private bodies and subjects to establish schools is supposed not to imply financial charges for the State. There has been an attempt to interpret extensively this provision, and recently attention has been drawn on art. 33 of our Constitution, according to which it is a task of the Republic to establish schools at all levels. This provision has been interpreted in the sense that each body, either public or private, can partake on an equal basis in the social purpose of education.

The Law March 10th 2000, n. 62, with “Provisions for the Equality of Schools and on the Right to Education” has set up a national system of education, formed by State schools, State-recognised private schools and schools of local administrations, and provides for the conditions necessary to aknowledge State-recognised private schools.

In addition to this law there is a diversified legislation either at State level or at local level, which contains direct and indirect provisions in order to support private schools providing for the partial abatement of the expenses for attendance of secondary school.

As to the Catholic Church, art. 9 of the above mentioned new Agreement between the Italian Republic and the Holy See (February 18th 1984, ratified with Law March 25th 1985, n. 121) takes up a formulation of art. 33 of the Constitution and guarantees to the Catholic Church the right to establish schools at all levels enjoying the privilege of “equality”. The State, recognizing the value of religious culture, guarantees the teaching of Catholic religion in State schools (not in universities) at all levels.

In the same way, all agreement Laws stipulated with other religious communities aknowledge the right of these non-catholic Churches to establish schools at all levels, according to the principles of school freedom and freedom of teaching, which has been sanctioned by the above mentioned art 33 of our Constitution, and recognize their “equality” upon verification of the requirements

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provided for by the above mentioned Law n. 62/2000. These agreement Laws provide furthermore for the renunciation to each claim on teaching doctrine and catechesis in all State schools. On the other side, the State guarantees the teaching of Catholic religion, but, in observance of the principles of freedom of conscience for everybody, recognizes to pupils the right not to avail themselves of this teaching. Depending on the religious creed which requests it, juridical effects are recognized for degrees and certificates in theology, biblical culture, rabbinic studies, jewish culture.

Besides the religious creeds, all the moral bodies which belong to them and are aknowledged as religious bodies have the right to establish schools.

V. The most important tax reductions related to religious communities

and donators; legislation which determines taxation of religious communities and donations

In the agreement Laws there can be some provisions on worship, social

assistance, welfare, education. Other activities of religious bodies, which differ from those of religion and worship, are subject to the laws of the State concerning those activities and stating as well rules on tax-payment. Religious organizations are also allowed to carry out some non-profit activities of common good (ONLUS), provided that their prevailing aims are those of religion and worship.

The Legislative Decree December 12th 1997, n. 460, contains a tax regulation which is particularly favourable for the ONLUS, and, therefore, for religious bodies as well within the above mentioned non-profit activities of common good. This regulation consists in different tax reliefs, in reliefs of deduction for insurance, in the exemption from certain performances in matters of VAT (Value Added Tax).

Buildings for worship, which are an expression of religious freedom, are matter of competence of the Regions. Each Region regulates this matter with special legislation. Regional law can provide for the payment of shares for building or restoration of churches, or for concession of areas where to build places of worship. Beneficiary of payments are local administrations, or ecclesiastical catholic bodies, or bodies belonging to other religious communities.

VI. Experiences with implementing and executing legislation (list of

registered religious communities, State financial support for activities of churches and religious communities)

In the Italian legal system religious creeds do not have legal status. They act

through their representative bodies, and the State aknowledges them a status jure privatorum (according to private law). So it is for the Catholic Church, in whose name the Holy See acts on the international level, whereas at nationale level it is the Italian Episcopal Conference which acts in a certain measure in its name.

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Just to mention some other examples within non-catholic creeds: the Waldensian creed acts through the so-called Waldensian Table, which has acquired legal status already at the beginning of the 20th century; the representative body of the Jewish confession is the Union of the Italian Jewish Communities and so on.

More differentiated is the situation of other religious creeds which are aknowledged according to art. 2 of the above mentioned Law 1159/1929. This article does not speak of aknowledgement of religious creeds, but of aknowledgement of bodies of religious confessions different from the Catholic creed.

Within the respective agreement Law some other bodies, indicated by the religious creed itself and pursuing worship aims alone, or together with other aims of education and/or welfare, can acquire legal status. These bodies are bound to enregister themselves in the registers of juridical persons held by the Italian Prefectures, in which they have to indicate the rules of their statutes and the powers of their representatives. This is an essential requisite in order to conclude a legal transaction. Religious bodies are run under the control of their respective religious authorities and without interference from the State.

VII. Eventual church tax and its total amount in 2003, 2004, 2005, 2006.

The competence in this matter is of the Ministry of Finance – Agency for the

Incomes. VIII. Percentage of personal income tax which could be directed by

individual tax payers to chosen religious communities (if this possibility exists); the total amounts in 2003, 2004, 2005, 2006 and the distribution

of churches (if available) The financial help of the State in favour of churches is based on a financial flow

which is either public or private. The Catholic Church and the six religious creeds mentioned above, which have stipulated an agreement with the State, participate in sharing the 8 per thousand out of the tax yield on personal income (IRPEF), according to the choises expressed by the taxpayers through their annual income tax return. Some of the religious creeds, which participate in sharing the above mentioned 8 per thousand, participate, in accordance with the respective agreement Law, in the total sharing of that amount, extended even to the unexpressed choices of taxpayers, whereas some others preferred to renounce to this last facilitation.

Consequently, religious creeds are bound to produce a statement of account to the Ministry of the Interior – Central Direction for Religious Creeds, which checks it in a rather general way, aknowledging thus their autonomy. But, as a matter of fact, this duty is not compulsory and the statement of account has no value from the economic-juridical point of view: neither the Agreement with the Catholic Church,

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nor the other six ones with other religious creeds provide for a sanction if this statement of account is not produced to the Ministry of the Interior.

The second, private financial flow consists in voluntary money grants bestowed by citizens in favour of a religious body (catholic or belonging to another creed, which has stipulated agreements with the State), which can be detracted from their global income till to a fixed sum of 1.032,91 Euro. The Catholic Church may use these money grants only to support its clergy, whereas the other religious creeds use this flow of money for different aims, including the support of their clergy, worship aims, care of souls, evangelization and ecclesiastical administration.

This system intends to found the State intervention in favour of religious creeds on the consent of citizens, but also to avoid the involvement, even without their knowledge, of taxpayers who do not want to finance any religious confession.

384


COMMUNITIES IN LATVIA

Jekaterina MACUKA

Head of the Board of Religious Affairs, Ministry of Justice

1. State agency competent for churches and religious communities

Government and Religious organizations legal relationship starts when religious organizations qualify as legal entity. Normative acts regulate preconditions of obtaining status of legal entity and also action of religious organization as legal entity. There is a possibility in normative acts for religious organizations to perform in sphere of private law and in definite field of public rights sector. Administrative of Government and Religious organizations – relations are based on constitutional principles.

The Board of Religious affairs provide realization of government policy and coordination of religious business manages issues linked with relations of government and religious organizations, looks for efficacy of practicing religion in Government Legal Regulation and makes propositions about enterprises which should be made to forestall violation of human rights and coefficients made in Constitution of Latvia Republic or in international contracts on the religious level.

The Board of Religious affairs is state administration’s office in supervision of Justice Ministry. The Board of Religious affairs is legal entity. It has separated financing budget, segregated property, and constant balance; stamp with picture of Latvia Republic government national emblem and full name of institution; other attributes and budget account. Head who is appointed to post by a proposition of Justice Minister and who is relieved by the Cabinet of Ministers manages the Board of Religious affairs. He is respond about the work of the Department and responds about the accomplishment of functions. State of the Board of Religious affairs is 8 people; budget in 2008 is up 73,000 LVL. In department functions of manager are fulfilled by a head, he has inferior bookkeeper, Human Resources department’s manager and registration part of Religious organizations. Registration part of Religious organizations is composed of part head, assistant head and two senior experts.

The Board of Religious affairs: 1) Looks for efficacy of practicing religion in Government Legal Regulation;

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385

2) Provides realization and coordination of government policy in religious cases, adduces preconditions for Ministry of Justice about policy in religious rights;

3) Manages issues about relations of government and religious organizations; 4) Registers religious organizations and its institutions, as well as

amendments in statutes, changes in structure of management and inspection commission un creates organization of registered religious organizations and united inventory of its state institutions;

In Republic of Latvia are capacitated private and legal entities. Consequently

entities that associate to make religious actions, may work in sphere of private law as united object, only if they get status of legal entity. In Republic of Latvia are systems of registration legal entities, as to wit; confederacy of individuals can get status of legal entity when it registers in government institution. Religious organizations can be registered in the Board of Religious affairs in Ministry of Justice, which arranges register of religious organizations.

The Law of the Religious organizations regulates process of registration of Religious organizations. In this law process of Religious organizations is talked out in order in which is registered religious organizations, documents, which should be signed in for registration, order about exclusion from register and preconditions, rights of religious organizations and responsibilities.

In the Law of Religious Organizations is definition of concept ‘religious organization’ and religious organization forms, which can be registered. In the 3. Clause of Law is referenced that ‘religious organizations’ are registered parishes, unions (churches) and dioceses in order of Religious Organization Law. There are references in the Law to institutions of religious organizations, which these religious unions (churches) can make to achieve their aims.

In the Republic of Latvia is four-degree religious organization action forms: parish, religious union (church), diocese, and institution of religious organizations. Parish is aggregate on voluntary persons, which are connected by one faith. Religious union (church) is ten or more parishes connected. Dioceses – administrative unit of churches’ structure. It is important to know that there are registered only established dioceses of Catholic Church. Otherwise institution of religious organizations is mental employees educational institution, cloister, mission, deaconates institutions etc. institutions, which has no purpose to gain any earning and which is established by the church to conquer their aims.

5) Arranges relations with government and religious organizations; 6) Helps to organizations with decisions of organizing, legal and other

problems, if they have asked for a help; 7) If religious organization has broken the law, it is needful to warn the

manager of this organizations and it is necessary to finish these illegal

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386

activities. It should be suggested a question about finish activity of this religious organization;

8) Candidates for the manager of this religious organizations (church) should be accorded to chaplain;

9) delivers justified letters of recommendation to Ministry of Finance about religious organizations, which wants to get public benefit status;

10) According to its competence it should control the organization of children

camp and activity order in religious camps; 11) Receives and looks through surveys about activity of religious

organizations in calendar year; 12) Coordinate letters addressed to Citizenship and Migratory institution from

foreign missioners to gain residence permit.

Evaluating functional work amount and work effectivity of the Board of Religious affairs, it was considered that in the sphere of religious businesses institutional functions are too small. And, when we definited function of institution and calculated administrative resources, it was considered that this institutional and administrative model is ineffective.

If we take in account everything, there was discussed a question about a improvement of distribution of government resources in the case of religion.

To improve the institutional model of religious business it is needful to reorganize the Board of Religious affairs and give their functions to Ministry of Justice and Register of Enterprises, and also involvement of other competent institutions is needful.

This improved institutional model is offered: In the Ministry of Justice will be made department of Religious and social affairs, where functions would be making policy in religious sphere, informing community about the religious organization activity, giving opinion about the documents of registration religious organizations, solving the questions about the religious organization activity, giving consultations about the normative regulations.

Also would be made consultative council of Religious business in Ministry of Justice, which would know all questions about the government and religious organization relations, would cooperate with religious organizations and would give consultations about the legal and organizatorical questions.

In its turn Register of Enterprises will take over registration functions, which now is managing 13 public registers. Registration department of Religious organizations in the Register of Enterprises will manage registration of religious organizations, and also will make other registration processes, which are linked with activity of religious organization as legal entity.

Now Ministry of Justice is considering to reorganize the Board of Religious affairs and to improve possibilities with Parliament and also with representatives of religious organizations.

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387

2. Legislation related to religious freedom and religious organizations Few laws regulate action of religious organizations. Some of them regulate

exactly this sphere, but in others are separated rules to religious organizations: 1. Law of The Religious organizations; 2. Law about giving back the property of Religious organizations; 3. Rules about chaplains duty; 4. Statute of The Board of Religious affairs; 5. Order in which organizations present view about their activities; 6. Rules about the year summary of religious organizations (order in which

they present reports about financial activity to State Revenue service, offering and presents);

7. Law of the Civil Status acts (orders establishes order in which priest claims about marriage, and how do they sign in this in Civil Status Act register);

8. Protection Right Law of Children (children can be in religious organization if parents agree);

9. Law of the Personal Individuals Data (data about religious membership is sensitive data and processing these data is limited);

10. Law of the Immovable Property (exemption of taxes for religious organizations);

11. Law of Value Added Tax (exemption of taxes for religious organizations);

12. Law of Corporate Income Tax (exemption of taxes for religious organizations);

13. Order of children camp organization and activity (has an order in which there camps are organized);

14. Immigration Law (has rights to remain in the country to make some religious activities);

15. Residence permit Law (has order in which gives residence permit to make religious activities);

16. Order of Invitation Approval (has an order in which religious organizations invite foreigners to make religious activities).

If we look through relations with Republic of Latvia and religious organizations, we can see that with Evangelical Lutheran, Roman catholic, Orthodoxies, Old-believers, Methodists, Baptist, Adventist of Seventh day, Judaist denominations government has special relations. Exactly for these confessions government has been delegated functions of marriage, chaplains of these denominations work in government institutions an also five of there denomination priests are teachers in the schools practicing theory of faith. These

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denominations has special status in Republic of Latvia and rights for them are different as to the others.

With acceptance of the Law about “Contract between the Republic of Latvia and Saint Chair” in 2002, also is ratified Contract between the Republic of Latvia and Saint Chair, which was singed in 8th October 2000.

There are norms in the contract and according to them should be realized relations with government and Catholic Church. This contract doesn’t mean that Catholic church hasn’t got any Normative Acts of Latvia Republic, however in the case of collisions it would be made norms of international contract, not national right norms.

In the contract are attitudes of government and church and it makes cooperation, regulating questions accorded to activity of churches department and actions on government institutions. Rules of the contract orders legal status of Catholic church in Republic of Latvia, regulate issues which are linked with the structure of Catholic church, rules of activity in the territory of the state, relational sphere and fields. In the contract are points about the legal status of Catholic Church, teaching faith education in the schools, and legal regulation of catholic schools and high schools, financing of government to save the cultural monument, which belongs to Catholic Church, but only to those which has historical status. In the contract is regulated catholic mental care in prison places and in National Armed Forces.

In the 8th June 2004, Cabinet of Minister signed contracts with six religious unions (churches): Evangelical Lutheran church in Latvia, Orthodoxy church, Union of Latvian Baptist, Seventh day Adventist union, United Methodist church, Latvian old-believer Pomora churches Central Council.

If we need these rules in the contract to work, it was considered to make special laws according to rules of the contract.

In the 2007 Parliament accepted 5 laws:

� Latvian old-believer Pomora church law; � Seventh day Adventist union law; � Union of Latvian Baptist law; � United Methodist church law; � Riga Judaist religious union law.

Law about the Evangelical Lutheran church in Latvia and Orthodoxy

church law are considering in the Parliament now. In the Laws is defined status of these Religious unions (churches) in Latvia,

those rights and functions, spheres of the relations of government and religious unions (churches), kinds of support from government and religious unions (churches). Questions about the religious unions (churches) name protection, autonomy of inner management, registration of marriages, teaching faith lessons in educational institutions, collaboration in the refuge giving process, holidays,

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mental support in National Armed Forces, prison places, medical institutions. There are several rules about the action with religious union (church) properties, legal work relations in religious unions (churches), religious unions (church) cultural monument saving.

3. Education activities of churches and religious organizations

In the Republic of Latvia rights to get faith education individually and with

others in schools are guaranteed. Also there is possibility to get these lessons in government schools. Christian faith lessons have been touched to those persons who wrote that they wanted to acquire it. In the school there must be 10 students who want to acquire Christian faith lessons. If we look to a program of Educational Ministry, then rights to teach these lessons are in known denominations - Lutheran, Catholic, Orthodoxies, Old-believers and Baptists. It is not imposed lesson and students can chose to learn this or to learn ethics.

Ethics and Christian faith lessons are financed from the government budget. In the minority school, if the students want to, in the order made of Ministry of Education can give rights to teach minority faith lessons. So the government lets and supports financially other religious organization activity in the schools.

Religious organizations in their activity statutes can make educational institutions, which has no propose to gain earning: cloister, mission, deaconates institutions etc. Institutions. These religious unions (churches) or dioceses have rights to make mental personal educational institutions, cloisters, missions, or deaconates institutions.

This religious organizations establishments works according to the Law of Religious Organizations and their statutes (Constitution, rules), which are approved by the religious union (church). Legal status of those instances is made by the religious unions (churches) or dioceses.

There are 35 religious organization institutions registered in the Board of Religious affairs, 9 of them are cloisters, 7 mental personal educational departments, 4 missions and 15 establishments.

The biggest establishments of religious organizations education are Academy of Luther, Institute of Theology in Riga, Riga Mental seminary, College of Christian management.

Academy of Luther is educational institution of Lutheran church; it makes priest, musicians and employees for this church. Academy of Luther provide to know education which makes students to calculate nowadays faith. There are four departments: Pastoral, parish employees, Church music and liturgy, Small Luther’s academy (represent to employers and employees to get collateral knowledge in theology).

There are several educational institutions founded by the Roman Catholical church: Institute of Theology in Riga (In the program of bachelor “Theology” are made high qualified theologs and priests), branch of Latheran Pontifical University

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– Institute of Highest Religious Science (philosophy, ethic, and Christian lessons teacher and parish and other groups catechists), Gymnasium of Aglona Catholic, Primary school of Liepāja Catholic, Gymnasium of Rīga Catholic, Primary school of Rēzekne Catholic, Primary school of Kalnezers Catholic.

Religious seminar in Riga is educational institution of Latvia orthodoxies, which teaches priests, servants and teachers for orthodoxy.

College of Christian management represents to study in the program “Organization of social help”. You can get profession of social help organization. It also represents program “Theology” and parish administration program.

4. The most important tax reductions related to religious communities

and donators

According to the Law “About the Immovable property tax” property of the religious organizations (houses, land) which is not used in activity of economy, is exempt of Immovable property tax.

Norm of this law says that for the ritual services given by the religious organizations, as marriage, christening, funerals etc ceremonies, are not in the norm of this Law. Income of those religious organizations are not taxed with VAT (Value added tax).

When we get goods of services for what are paid from the foreign financial accounts, there are rights to religious organizations on VAT preference.

There are rights for Religious organizations in the order of Public benefit organization law to get public benefit organization status. If the religious organization has this status, persons who gifts to this organization are able to get tax preferences. According to the Law about the Corporate Income Tax, for the residents tax are diminished about 85% from the sum which was as a gift to those organizations which has that status. According to this benefactor gets diminution of tax.

These diminutions accords to all religious organizations which are registered in the Republic of Latvia no matter of that if they are autonomic or not.

There is no “church tax” in Republic of Latvia, all taxes which comes are putted into a government budget. In the normative acts also there is no possibility for individuals to give part of the taxes to religious organizations.

5. State financial support for activities of churches and religious

communities

In the Republic of Latvia is practiced giving financial support. Every year from the government budget are money to organizing holiday of Virgin Maria, which are state activity in Aglona.

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According to the first case of 12 Clause of the Contract of Latvia Republic and Saint Chair, Republic of Latvia takes upon itself to help cover expenses from the saint places in Aglona, according to state enterprises. In the year 2007 there were 33,0943 LVL, but in 2008 - 32,943 LVL.

Ministry of Justice every year until 1st March asks to Catholic Church to sign in plan of the activities accorded to Conference of Latvia bishop for the next year, which could be state activities and also calculation of expenses which would be made to make these holidays.

Steering committee of Ministry Cabinet represents the project plan about providing and security of activity, and also coordinates whether everything will be done in the time of the holidays in Aglona.

Taking into account activities of security and providing, Ministry of Justice calculate validity of budget demanding and preconditions about the activities, which are financed by the government budget, and include the into the list of priority activities.

In the 2005 means from government budget was for developing infrastructure of sacral tourism objects. Sacral tourism is based on introducing wide tourism auditory with churches and cult monuments in Latvia and also with history of churches. Main aim of this project competition was to make preconditions in improving sacral tourism project. In this project main thing was to make investment, mostly in developing minimal infrastructure, and also to arrange churches and culture monuments for visitor needs all over the Latvia. There was a chance to all religious organizations to participate. All in all 163 sacral tourism objects got the financing. Traditional unions (churches) were participating: Roman Catholic denomination Parishes got 26,313 LVL, Lutheran – 750,342 LVL, Orthodoxies – 172,367 LVL, old-believers – 131,471 LVL, Baptists – 87,017 LVL, Judaists – 24,481 LVL and Seventh Day Adventists – 3,000 LVL.

In the 2007 and 2008 means of budget were assigned to program “Grant for providing religious organization activities” (2007 –316,082 LVL, 2008 –150,000 LVL). These means were granted to renovation of churches for religious organizations, developing structure and for buying necessary technique. There grants were almost all given to traditional religious organization, with whom government has special relations and whose activity is regulated by the law.

Government gives support to religious organizations to develop and save local and state cultural monuments. In proceeding of Government Protection inspection of Cultural Monuments government gives some means from the budget to explore cultural monuments and for renovation or conservation of them, but from the local budget – means to local monument conservation or renovation if they are not usable for domestic. Government Protection inspection of Cultural Monuments in every case closes contract with the owner of cultural monument about giving means of budget to research and preserve, and also to renovate these cultural monuments, an also this inspection controls use of means.

392


COMMUNITIES: CASE OF LITHUANIA

Donatas GLODENIS Chief Official of the Ministry of Justice

Republic of Lithuania

Lithuania has taken up a model of Church – State relations that is not unlike much of what is found in other countries of Europe, but with certain unique features as well. On the one hand, Lithuania has quite a rigid system of state recognition of religious communities, which is based largely on the historical longevity of religious communities in the country. On the other hand, separation of church and state is established in the Constitution of the country. The state support for religious communities does exist, but is comparatively insignificant. And the administrative apparatus of the state has a very insignificant number of people involved with questions of religious communities.

I. State agencies competent for churches and religious communities; its

competences; number of employees

There are a few institutions that deal with some aspect of religious affairs in Lithuania, and there is no single overarching institution that would be competent in all affairs of religious communities, or one that would be specialized in state-church relations.

Ministry of Justice

The Ministry of Justice is responsible for registration of religious communities and associations as well as acting as an intermediary towards granting legal person rights to the traditional religious communities and associations in Lithuania. The Ministry of Justice also provides the Parliament of Lithuania (called Seimas) with recommendations regarding a possibility to grant status of state-recognized religious association to other (non-traditional) religious communities.

Ministry of Justice is also responsible for general oversight of the activities of religious communities. In case a religious community is found to have violated the law, rights and freedoms of other inhabitants, or became a threat to public safety, the Ministry of Justice is responsible for warning a religious community, and, in case violations are not discontinued – going to court to close down the community.

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On a larger scale, the Ministry of Justice is considered to be responsible for coordination of state-church relations policy in Lithuania as well as providing the public with minimal information on the activities of new religious movements.

Since the Ministry of Justice has been delegated the function of the registration of religious communities in 1996, it has had 1 to 3 employees working in the field of religious affairs at a time, in different divisions. For a brief period – October 2006 to July 2007 – a separate structural division – Service of Religious Affairs – was in place to carry out the functions of the Ministry in the sphere of religious affairs, with three staff members (only two were actually employed). Currently religious affairs are handled by the Section of Religious Affairs and Legal Registration of the Department of Registers; two employees are working in the field of religious affairs. Other institutions, that have functions in spheres of state and church relations, include:

� the Government Office, employing Advisor to the Government Office on religious affairs. This position has been created right after Lithuanian independence from the Soviet Union was declared. The position is there for coordination of activities of different ministries as they relate to the Catholic Church and other traditional religious communities and associations.

� The Ministry of Defence is organizing chaplaincy services to the military personnel;

� The Ministry of Education and Science is responsible for coordinating the religious education in public schools questions, approving the programmes, etc.

Commission of state institutions

In the year 2000 an interministerial commissionv was formed to coordinate the activities of the different ministries, share information and take necessary actions in the sphere of the activities of religious, spiritual and esoteric groups. This commission was formed in the midst of a sect scare to provide a sort of a substitute for a missing all-encompassing religious affairs division at the Ministry of Justice.

This commission has been entrusted with two functions: first, the commission had to facilitate the exchange of information and coordination of the actions of the state institutions as they relate to religious, esoteric and spiritual groups; second, the commission had to propose necessary actions and legislation in case this was needed.

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II. Legislation related to religious freedom and religious communities accepted after 1990 – list of laws on religious freedom and agreements

between state and religious communities.

There are a number of legal documents pertaining to regulation of activities of religious communities in Lithuania. The main legal acts are the Constitution of the Republic of Lithuania, Law on Religious Communities and Associations. There are also three agreements between the Holy See and the Republic of Lithuania regarding the status of the Catholic Church in Lithuania.

The Constitution

The main law regulating religious freedom in Lithuania is the Constitution of the Republic of Lithuaniavi, which came into force on 2 November 1992. Article 26 of the constitution guarantees freedom of religion and belief of the individual, article 43 deals with recognition of religious communities, and article 38 of the Constitution also stipulates, that the state shall recognize church registration of marriages. Law on Religious Communities and Associations

Apart from the Constitution, religious freedom issues and the activities of religious communities and associations are regulated by the Law on Religious Communities and associations of the Republic of Lithuaniavii. The Law proceeds in the typical manner to detail the freedom of religion and belief, establish the categories of religious organizations (the three categories are: state recognized traditional, other state recognized, other) regulates the religious instruction in public schools, religious ceremonies in public schools. Then the Law details the registration procedures of religious organizations: traditional religious communities and associations and other religious communities and associations, followed by provisions regarding the activities of religious communities and associations and ending with provisions regarding the end of religious organizations, both voluntary and forced by the state upon certain conditions.

Quite importantly, the law specifies the religious traditions that are considered to comprise a part of the historical, spiritual and social heritage of Lithuania and therefore are traditional in Lithuania. Those, according to the article 5 of the law, are: Roman Catholic, Greek Catholic, Evangelical Lutheran, Evangelical Reformed, Russian Orthodox, Old Believer, Judaistic, Sunni Muslim and Karaite.

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Agreements with the Holy See

There are three agreements between the State of Lithuania and the Holy See regarding different aspects of the status of the Catholic Church in Lithuania, all signed in 2000:

� Agreement between the Holy See and the Republic of Lithuania concerning juridical aspects of the relations between the Catholic Church and the Stateviii

� Agreement between the Holy See and the Republic of Lithuania on Co-operation in Education and Cultureix

� Agreement between the Holy See and the Republic of Lithuania concerning the pastoral care of Catholics serving in the Armyx

The agreements according to Lithuanian law are above the local legislation, therefore directly applicable. These agreements were followed by other minor agreements between the Catholic Bishops Conference of Lithuania and respective ministries, dealing with issues of Justice, Culture or Army, that further specified implementation of the agreements between Lithuania and the Holy See. There are no agreements with the other religious communities or associations in Lithuania at this time.

Other legal acts pertaining to registration and operation of religious communities

The Second book of the Civil Codexi of the Republic of Lithuania has an article 2.37 specifically on religious organizations, and is, along with the Law on Religious Communities And Associations, the basis for the Regulations of the Legal Entities Register, approved by a decision of the Government, which further specifies the rules of registration of religious communities and inclusion into the register of traditional religious communities. The peculiarity of the latter is, that, according to the article 2.37 of the Civil Code, they are legal persons, which presumes they have this feature independently of State registration (therefore, their inclusion into the register, and not registration). This peculiarity is also part of the source for the problems traditional religious communities have when it comes to decisions by the State about who is the really traditional religious community, and who is only pretending to be such.

The third book of the Civil Code has provisions regarding state recognition of the church marriages – articles 3.24 and 3.25.

The Law on Education of the Republic of Lithuania stipulates the teaching of religion of traditional religious communities and associations in the public schools.

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Annually adopted Law on Approval of the [year number] Republic of Lithuania State Budget and Municipal Budgets Ratesxii assigns a certain part of the State Budget towards the Cultural Heritage preservation and other needs of the traditional religious communities every year.

The Law on the Order of Restoration of Rights of Religious Associations Towards Remaining Real Property of the Republic of Lithuaniaxiii stipulates the order of restoration of the rights to remaining real property of religious associations, that was nationalized at the beginning of the soviet rule in 1940.

There are a number of other laws that deal with some aspect of the activities or status of religious communities. These include:

� Law of the Republic of Lithuania on Health Insurancexiv includes

provisions on the health insurance of the clergy and monks of the state recognized religious communities and associations.

� Law of the Republic of Lithuania on State Social Insurance Pensionsxv includes provisions on the social insurance pensions of the clergy and monks, belonging to the state recognized religious communities and associations.

� Law of the Republic of Lithuania on Immovable Property Taxxvi includes provisions on exemption of religious communities of the immovable property tax.

� Law of the Republic of Lithuania on Immovable Cultural Heritage Protectionxvii includes provisions on the protection of immovable cultural heritage of traditional religious communities and associations.

� Law of the Republic of Lithuania on Public Meetingsxviii sets out differing regulations on public meetings of state recognized and other registered religious communities and associations.

� Law of the Republic of Lithuania on Inhabitants' Income Taxxix sets out differing regulations on the income tax of persons working for the traditional religious communities and other registered religious communities.

� Law of the Republic of Lithuania on Military Servicexx includes a provision that frees from the military service the clergy of the traditional religious communities and associations

� Law of the Republic of Lithuania on the Lithuanian National Radio and Televisionxxi includes provision allowing the traditional religious communities and associations to have free time on national radio and television.

� Law of the Republic of Lithuania on Landxxii includes a provision allowing traditional religious communities and associations to rent state owned land at no cost.

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III. Government's plans for changing legislation in this field (drafts of acts).

There have been two attempts to change legislation on registration and activities

of religious communities and associations by changing the Law on Religious Communities and Associations. The first attempt was made in 2002, the second is an ongoing effort that was started last year and not finished up to this day. Draft of 2002

The government has been working on changing the legislation on religious communities and associations since 2002. The basic reason to change legislation was the newly adopted Civil Code and the need to put the existing legislation in line with the Code and it's newly established system of Legal Entity Register.

The law to be changed was the Law on Religious communities and Associations of the Republic of Lithuania. The Ministry of Justice work group in charge of the preparation of the new draft law also attempted to change some provisions that have proved troublesome to interpret in administrative practice and courts without changing the essence of the law. An attempt was made to pay attention not only to proposals of the traditional churches in preparation of the draft law, but also to the proposals of other religious communities operating in the country.

This effort, however, met with strong opposition from the Catholic Church, which attempted to redefine the law to better suit its needs. The draft went through 7 cycles of corrections before it was approved by the Government to go to Seimas, the Parliament of Lithuania. There, after initial consideration by the committees and a few attempts to improve it in the Seimas' committees, it was rejected in 2007 as in need of further revisions and sent back to the Government to be revised.

The Continuing effort of 2007-8

In 2007 the work of revising the draft law was taken up again, going in about the same direction as the draft of 2002. The revision of the draft law was assigned to the Ministry of Justice again. The initial revision of the draft law reaching the Government met with strong opposition from some traditional churches, most notably, Lithuanian Old Believers' Church. In response the Minister of Justice in November 2007 formed a working group, which was to review all the suggestions regarding the draft law and prepare a new draft law.

The term for preparation of the new draft law was extended over again, currently it is set to the end of October 2008. The main changes in the current, nearly complete version of the draft law, comparing to the law currently in force, are listed below, and they mostly relate to state relationship to traditional religious communities and associations.

� The registration of religious communities and inclusion of traditional religious communities into the register of legal entities is made compatible

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with the system of registration of all legal persons in the Register of Legal Entities.

� Extended the “trial period” for newly established religious communities before they can apply for a special status of recognition by state. Currently it is 25 years of existence in Lithuania, but in the draft law, following a recent decision by the Constitutional Court of Lithuania, it is set to 50 years.

� Reformulated the procedure of how the state recognizes religious communities that claim to be traditional. In the current law the responsibility is delegated to the Ministry of Justice, which has to decide whether a religious community is really traditional according to the canons ans statutes of the said traditional religion (for example, is a certain Jewish community really traditionally Jewish or not). This has frequently led to disputes, including ones in courts, regarding the traditionality of a certain religious organization. So the current draft law formalizes the procedure granting the existing traditional religious communities and associations sort of a vote right to decide, whether a religious community of the same religious tradition is traditional in the sense this word is accorded by Lithuanian legislation, or not.

IV. Educational activities of churches and religious communities

There are a number of high schools and university-level institutions either run

by churches or run in cooperation between state and churches. There are a number of church run private schools in Lithuania. Theology and Catholic catechesis faculties at state universities

There is one Catholic catechesis faculty at state universities, fully within the university structure and supported by the state at Vilnius pedagogical university. It provides most of the catholic religious education teachers for state run high schools.

A faculty of Catholic theology is present at Vytautas Magnus University, state-owned higher education institution in Kaunas. It has a branch – St. Antanas Collegium in Kretinga, mainly preparing Catholic catechesis teachers.

There are three church owned university level schools in Lithuania – all of those are catholic seminaries. There is also a private university level school in Klaipėda – LCC International University, which is founded by a private charity related to non-traditional protestant churches in Lithuania – Lithuania Christian Fund, and supported largely by missionaries from abroad. About 600 students are attending the university, though most are in programs unrelated to religion or christian ministry.

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Teaching of religion in public schools

Religious instruction is given in most public schools of Lithuania. In the year 2007-2008 the total number of children that attended ethics or religious instruction in public schools (these two are mandatory but interchangeable) was 495,370 , of those 53.5% attended religious instruction lessonsxxiii. Of those attending religious instruction lessons 98% attended Roman Catholic religious instruction lessons. Religious instruction is provided by teachers who receive their training in state run universities.

Church run secondary education institutions

There are three private schools providing programmes of pre-university education, established by the Catholic church: two Jesuit gymnasiums in Vilnius (630 students in 2007-8) and Kaunas (700 students in 2007-8) and Kretinga Franciscan Gymnazium. There are 5 other schools cofounded by state (municipality) and the Catholic Church. However, the National Catholic Association of High Schools counts 31 member schools, including mostly municipality founded high schools. All of these schools together have 15613 students and 1504 teachersxxiv. The association is composed of Catholic schools and schools of catholic profile, which means according “high priority to the values of Catholic faith, reflected in the school regulations and implemented by the help of educational programs”. To have so many state-owned but catholic in orientation schools may come as a surprise in a country where all state run initiatives are, according to the Constitution and a decision of the Constitutional Court, to be secular and equally accessible to people of all faiths. There might be a historical reason to being a state-owned school on paper while being catholic in spirit and educational activities. Before the Decision by the Constitutional Court regarding the compatibility of a number of articles of the Law on Education with Constitution of 13 June 2000, which declared interference of religious authorities into the governance of a school co-founded by state and church to be unconstitutional, establishment of schools by municipality that were really run by the catholic church was a common practice.

The schools that have the municipality as founder are supported financially totally by the municipality. This is also true of the schools co-founder by church and state. All private schools, providing state recognized secondary education, are supported by the so-called “student-basket” money through municipalities. The schools established by the Catholic Church are also supported by the state the same way as the municipal schools. This policy is based on the Agreement between the Holy See and the Republic of Lithuania on Co-operation in Education and Culture, article 9.1.

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There are a few other private religious schools, belonging to other registered religious communities. A private high school “Word of Faith” is operated in Vilnius by “Word of Faith” charismatic church. It was started in 1992 and currently has about 105 students and 21 teachers. This school includes students from most protestant congregations in town, but also a few catholics. Another private school “Vaivorykštės takas” is in Klaipėda, operating since 1997. It had about 80 students and about 28 teachers at the end of last school year. The school is attended mostly by children from protestant families, although some students are catholics. The school is founded by private persons, not a church.

Both of the private protestant schools are partially supported by the state through the “student-basket” money, but, in contrast to the Catholic or State schools, they don't receive full support from the state.


According to the Law on Inhabitants Income Tax, persons, working for

religious communities, do not have to pay the Income tax. Only the personnel performing maintenance and construction work is an exception to this rule.

The Catholic church is exempt from all the taxes according to the Agreement between the Holy See and the Republic of Lithuania concerning juridical aspects of the relations between the Catholic Church and the State.

Religious communities can be exempt from the land tax by a decision of the municipality in which they have private land. The Catholic church is exempt from the land tax, as mentioned above.

Traditional religious communities and associations are exempt from the immovable property tax independently of the use of the property, while other religious communities are exempt from this tax in case they use the property for religious purposes.

VI. Experiences with implementing and executing legislation

The Ministry of Justice is the institution that deals most often with religious

communities. This is so mostly because registration of religious communities and associations and inclusion of the data of religious communities into the Register of Legal Entities is carried out by this ministry, so most of the information below will pertain to the activities of this ministry.

List of all confessions that have a religious communities registered

In March 2006 there were 1058 traditional religious communities and associations in the register of Legal Entities along with 168 other religious communities and associations. To count by confession, there were religious

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communities and associations that belong to one of the nine 9 traditional religious confessionsxxv along with other religious communities and associations belonging to 23 other religious confessions.

Religious confession Number of registered organizations

Categories

Christian and christian origin groups:

Roman (latin rite) Catholic Church

856 TRAD

Old Believers 61 TRAD

Evangelical Lutheran Church 54 TRAD

Russian Orthodox Church 51 TRAD

Non-Denominational Christian Churches

38 OTHER

Pentecostal Churches 37 OTHER

Baptist and Free Christian 30 OTHER / RECOGNIZEDxxvi

Evangelical Reformed Church 17 TRAD

Seventh Day Adventist 15 RECOGNIZED

Methodist Church 9 OTHER

Jehovah Witnesses 3 OTHER

Churches of Christ 3 OTHER

Armenian Apostolic Church 2 OTHER

Eastern Rite Catholic Church 2 TRAD

Church or Jesus Christ of Latter Day Saints (Mormon)

2 OTHER

Salvation Army 1 OTHER

New Apostolic Church

1 OTHER

Laymen’s Home Missionary Movement

1 OTHER

Romanian Orthodox Church 1 OTHER

Unification Church

1 OTHER

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Judaic and judaic origin groups:

Mitnagdim Jews 6 TRAD

Chassidic Jews 2 TRAD

Islamic and islamic origin groups:

Sunni Muslim 8 TRAD

Sufi communities 1 OTHER

Hindu and hindu origin groups:

Society for Krishna Conscience (ISKCON)

2 OTHER

Buddhist and buddhist origin groups:

Tibetan Buddhist groups 5 OTHER

Laos Buddhist groups 3 OTHER

Zen Buddhist groups 2 OTHER

Osho meditation groups 1 OTHER

Japanese Buddhist groups 1 OTHER

Other religious confessions:

Neo-Pagan 8 OTHER

Karaite 1 TRAD

Bahai 1 OTHER

The issues related to registration of traditional religious communities There have been a number of problems related to registration of traditional

religious communities. The law on Religious Communities and Associations does not name particular organizations that the state recognizes as traditional, it only names confessions in general. When a religious community applies for inclusion into the Register of Legal Entities with a legal form “traditional religious community or association”, it is up to the ministry of Justice to decide, whether a religious community is really traditional or not. The Ministry of Justice either accepts the claim of the new religious community or rejects it; usually, the older traditional religious association is against the registration of the new traditional religious association.

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This problem has affected the Old Believers Church, the Evangelical Reformed Church and the Jewish communities.

The Old Believers Church has experienced a split in 1995, and afterwards the faction that maintained control over the Supreme Council of the Church refused to recognize the other faction as a valid Old Believers' Church. The Ministry of Justice would refuse to register the faction as well, which resulted in ten years of court proceedings. Although the Old Believers' church basically unified in 2002, a small faction (Vilnius Old Believers Church) continued to exist and to represent its case in courts quite successfully, until the main Church agreed to recognize the faction as an independent Old Believers Church and not object to the registration of this Church as a traditional religious community in late 2007.

The Evangelical Reformed Church of Lithuania has experienced a split in 2001, followed by a formal registration of the split off Church in December 2002 by the name of Unitas Lithuaniae Synod of Lithuanian Evangelical Reformed Church. It was registered as a traditional religious association. The older church tried to challenge the decision of the Ministry of Justice to register the faction, but in 2004 the Supreme Administrative Court of Lithuania ruled that the Ministry of Justice did not violate the law by registering the split off church.

Another decision of the Ministry of Justice regarding registration of a Kaunas region Jewish religious community as a traditional religious community is being challenged in court at present by Kaunas Jewish Religious Community. The administrative district court ruled in favour of the Ministry earlier this year, and, since its ruling was appealed against, the Supreme Administrative Court is to take the case later this year.

As it has been already mentioned, the new draft Law on Religious Communities and Associations is to change the regulation in such a way as to grant the previously registered religious association the power to decide whether the newly created one is to be considered traditional religious community or not.

The issues related to registration of other religious communities

There have been fewer issues surrounding registration of other (non-traditional)

religious communities. The main ones have been centred around registration of less popular religious groups, that have been called “sects” in the public.

Besides the religious groups that became controversial only after the registration and before the Ministry of Justice was delegated with the function of registration (Word of Faith Charismatic Church, Jehovah Witnesses, Unification Church), the Ministry of Justice so far has registered few religious groups that would be controversial in Lithuania.

One of the notable exceptions is Osho Ojas Meditation Centre. This organization has been highly controversial in the media and the Ministry of Justice refused to register it in 1997 and 1998. The Ministry of Justice argued, that the Meditation Center in essence is not a religious community, and that the practices of

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the Centre could violate rights and freedoms of individuals. After the subsequent refusal in 2004 the Center challenged the decision of the Ministry in court. After the appeal the Supreme Administrative Court ruled, that the Ministry of Justice cannot withhold registration from Osho Ojas Meditation Centre. The court argued, that, since the academic community debates, whether Osho movement is religious, and there is no certain position, that it is not religious, the Ministry of Justice has to be neutral and has to accept what the organization says about itself as is. The court also argued, that the possible threat to health and rights of other individuals is not a valid ground for refusal of registration, and that the evidence that the Centre violates public order or threatens rights and freedoms of others has not been produced.

The issues related to state recognition of religious associations

Article 6 of the Law on Religious Communities and Associations details the

procedure of state recognition of a religious association as a part of Lithuanian social, spiritual and cultural heritage after 25 years of the existence of a religious association in the country. The state recognition could be granted to a religious association by Seimas if the the religious associations' religious teaching does not violate public order or good morals and if the religious association in question has public support.

The Ministry of Justice is to provide a conclusion to Seimas regarding the application by the religious association for status of a state recognized religious association. The Ministry of Justice has prepared conclusions regarding five religious associations, all of which have been present in the country for much more than the 25 years required: The Union of Evangelical Baptist Communities of Lithuania, United Methodist Church of Lithuania, Union of Evangelical Faith Christians (Pentecostals) of the Republic of Lithuania, New Apostolic Church of Lithuania and Seventh Day Adventist Church. Four out of these five were generally positive conclusions (doubt was cast regarding the inculturation of the New Apostolic Church). Since the question of state recognition becomes purely political after the conclusion leaves the Ministry of Justice, the process of state recognition of religious associations has suffered from excessive delays and stalls. Only Baptist and Seventh Day Adventist churces have succeeded in pushing their requests to full parliament vote (both successfully) in 2001 and 2008 respectfully.

The issues related to return of immovable property

The return of immovable property, that was confiscated during the soviet era,

has been a sore issue for many religious communities in Lithuania. Although some property was being returned even before the independence was announced in 1991, the Law on the Order of Restoration of Rights of Religious Associations Towards Remaining Real Property was adopted in 1995 to regulate the process. The law

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gave one year term for religious communities to present requests regarding confiscated property, and this term was missed by a lot of religious communities. Furthermore, there are hundreds of cases when religious community is using its former property for years, but formally it belongs to the state. The use is formally illegal, and there is no legal way for the state to hand over the property to a religious community, if the community has missed the term of the law of 1995.

Currently there is an attempt to change the legislation so as to allow the restoration of the rights towards remaining extensive Jewish communal and religious property to the handful of local Jewish organizations, - which, again, is causing unrest among religious communities and the population in general.

VII. State financial support for activities of churches and religious communities

The statistics for state support of religious communities and associations in

Lithuania is not readily available, so only some numbers can be specified. Only some support is given as direct donation to particular purposes. Much more support is given to different activities of religious communities based on specific grant models (religious communities can apply for support alongside other non-profit organizations) or through financing certain sphere where church is related to the state in some way.

The support that falls in the latter category (support for certain spheres) includes:

� salaries for teachers of religion in public schools � support for the military Ordinariat of the Catholic Church � support as social and health insurance for the clergy/monks of traditional

religious communities � support of municipalities for reconstruction of church buildings, etc. � support in the form of special programmes of the government (for

example, currently the government is running a programme to commemorate the visit of Pope John Paul II to Lithuania; the program is financed from the state budget and includes renovation of buildings, marketing of the sacred sites visited by the Pope, improvements in tourism/pilgrimage infrastructure and the like).

The direct support of the government to religious communities is set annually in Law on Approval of the [year number] Republic of Lithuania State Budget and Municipal Budgets Rates.

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Table 1: State donations to traditional religious communities and associations (recalculated into thousand €). 2008 2007 2006 2005 2004 2003

Latin Rite Catholic

869,5 863,82 863,82 755,82 755,82 755,82

Russian Orthodox

47,56 47,27 47,27 41,71 41,71 41,71

Old Believers 11,58 11,35 11,35 10,31 10,31 10,31

Lutherans 9,07 9,04 9,04 8,28 8,28 8,28

Reformed 5,13 5,1 5,1 4,84 4,84 4,84

Sunni Muslim 3,79 3,79 3,79 3,68 3,68 3,68

Jews 3,27 3,3 3,3 3,24 3,24 3,24

Eastern Rite Catholic

3,01 3,01 3,01 2,98 2,98 2,98

Caraite 0,98 2,98 2,98 2,95 2,95 2,95

VII. Eventual church tax and its total amount in 2003, 2004, 2005, 2006

Since most of the statistics for state support to religious communities is not available, it is only possible to present statistics for the direct state support towards traditional religious communities, which is presented above.

VIII. Possibility to direct a percentage of income tax towards religious

communities and associations

Lithuanian inhabitants have a right to direct 2% of their income tax to any non-profit organization, that has a status of support recipient. Unfortunately the information about the amount contributed to religious communities and associations was not available at the time of writing this paper. v Full title: Commission To Coordinate State Institutions That Deal With Questions Related to the Activieis of Religious, Esoteric and Spiritual Groups ; full Lithuanian title: Komisija valstybės institucijų, pagal savo kompetenciją sprendžiančių su religinių, ezoterinių ir dvasinių grupių veikla susijusius klausimus, veiklai koordinuoti.

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vi Constitution of the Republic of Lithuania, available online in English at: http://www.lrkt.lt/Documents2_e.html (visited 2008-08-17). vii Available online in English at: http://legislationline.org/legislation.php?tid=2&lid=1067&less=false (original version without subsequent updates, visited 2008-08-17). Full Lithuanian version available at: http://www.tm.lt/getfile.aspx?dokid=af8a4d1c-f54d-401c-bdba-1413f9ad4fe6 (visited 2008-08-17). viii Available in English and Lithuanian at: http://www.lcn.lt/b_dokumentai/kiti_dokumentai/AS-LR-sutartis-teise.html (visited on 2008-08-17). ix Available in English and Lithuanian at: http://www.lcn.lt/b_dokumentai/kiti_dokumentai/AS-LR-sutartis-svietimas.html (visited on 2008-08-17). x Available in English and Lithuanian at: http://www.lcn.lt/b_dokumentai/kiti_dokumentai/AS-LR-sutartis-kariai.html (visited on 2008-08-17). xi The first three books (out of 6) of the Civil Code of the Republic of Lithuania are available in English at http://www.tm.lt/default.aspx?item=aktual&id=4536 (without the updates, which so far have not changed regulation on religious communities; visited on 2008-08-17). xii One of the newest ones: Lietuvos Respublikos 2007 metų valstybės biudžeto ir savivaldybių biudžetų finansinių rodiklių patvirtinimo įstatymas (Valstybės žinios, 2006, Nr. 138-5267). xiii Lietuvos Respublikos religinių bendrijų teisės į išlikusį nekilnojamąjį turtą atkūrimo tvarkos įstatymas. Valstybės žinios, 1995, Nr. 27-600). xiv Lietuvos Respublikos sveikatos draudimo įstatymas (Valstybės žinios, 1996, Nr. 55-1287; 1996, Nr. 99; 2002, Nr. 123-5512, latest change: Valstybės žinios, 2007, Nr. 81-3326) xv Lietuvos Respublikos valstybinių socialinio draudimo pensijų įstatymas (Valstybės žinios, 1994, Nr. 59-1153; 2005, Nr. 71-2555; latest change: 2007, Nr. 59-2277) xvi Lietuvos Respublikos nekilnojamojo turto mokesčio įstatymas (Valstybės žinios, 2005, Nr. 76-2741, latest change: Valstybės žinios, 2006, Nr. 119-4549) xvii Lietuvos Respublikos nekilnojamojo kultūros paveldo apsaugos įstatymas (Valstybės žinios, 1995, Nr. 3-37; 2004, Nr. 153-5571; naujausias keitimas: 2007, Nr. 81-3325) xviii Lietuvos Respublikos susirinkimų įstatymas (Valstybės žinios, 1993, Nr. 69-1291; latest change: 2003, Nr. 38-1697) xix Lietuvos Respublikos gyventojų pajamų mokesčio įstatymas (Valstybės žinios, 2002, Nr. 73-3085; latest change: 2006, Nr. 127-4821). xx Lietuvos Respublikos karo prievolės įstatymas (Valstybės žinios, 1996, Nr. 106-2427; latest change: 2006, Nr. 113-4298) xxi Lietuvos Respublikos Lietuvos nacionalinio radijo ir televizijos įstatymas (Valstybės žinios, 1996, Nr.: 102-2319; latest change: 2006, Nr. 132-4985) xxii Lietuvos Respublikos žemės įstatymas (Valstybės žinios, 1994, Nr. 34-620; latest changes: 2006, Nr. 87-3399 ) xxiii Data provided by the Ministry or Education and Science in 2008.

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xxiv Website of national Association of Catholic Schools, http://nkma.lcn.lt/index.php?id=5 (visited 2008-08-17). xxv Or 10, if, like in the list below, Jews are differentiated into chasidic and mitnaged groups. xxvi Only one baptist association is state recognized. This association unites less than half of all Baptist religious communities.

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COMMUNITIES.

Mariusz RADAJEWSKI Department of Denominations and National and Ethnic Minorities,

Ministry of Interior and Administration

I. Information about state agency or ministry in your country competent for churches and religious communities; its competences;

number of employees; annual budget.

The main body of the governmental administration i.e. the division of the administration dealing with the governmental administration called "religious denominations” is the Ministry of Interior and Administration.

It is the Department of Denominations and National and Ethnic Minorities (28 employees) operating under the Ministry of Interior and Administration, which performs the tasks of the Minister in the area of religious denominations.

Pursuant to Article 1 of the Regulations of the Department of Denominations and National and Ethnic Minorities, the said Department is composed of: Division for Churches and Religious Organizations, Division for the Church Fund, Division for National and Ethnic Minorities, the Group for Culture of National and Ethnic Minorities, Office Servicing Team and the Independent Position. However, strictly religious matters constitute the scope of activity of only the first two divisions.

The scope of activity of the Division for Churches and Religious Organizations includes the handling of cases related to analysis of regulations and other questions concerning relationship between the state and the Catholic Church in the Republic of Poland and other churches and religious organizations, in particular:

1) Preparing draft regulations on religious problems and relationship between the state and the Catholic Church in the Republic of Poland and other churches and religious organizations and expressing opinions on them;

2) Keeping a register of churches and other religious organizations including preparation of draft decisions of the Minister of Interior and Administration on the entry in the register as well as preparation of certificates and copies from the register;

3) Preparing draft ordinances of the Minister of Interior and Administration on granting legal status to organizational units of the Catholic Church in the Republic of Poland and other churches and religious organizations;

4) Maintaining relations with the representatives of the Catholic Church in the Republic of Poland and other churches and religious organizations;

5) Preparing information and analyses of current religious problems;

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6) Conducting administrative proceedings in property cases concerning legal persons of the Church.

The scope of activity of the Division for the Church Fund, on the other hand, includes regulating matters related to the Church Fund and cooperating with the Social Insurance Institution on matters concerning the insurance of clergymen, in particular:

Preparing draft decisions of the minister competent for religious denominations on granting subsidies for:

Reconstruction, restoration and renovation of sacred buildings of historic value, Charitable work of the Church; Supporting educational activity of the Church; Preparing draft agreements on granting subsidies on the basis of the decisions

referred to in paragraph 1; Analysis and assessment of formal and content-related aspects of reports and

settlements of subsidies granted; Keeping a register of applications for subsidies from the Church Fund; Keeping a register of settlements of subsidies granted; Cooperating with the representatives of the Catholic Church of the Republic of

Poland and other churches and religious organizations with respect to the objectives of the Church Fund;

Preparing a preliminary budget estimate in cooperation with, among others, the Social Insurance Institution.

II. Legislation related to religious freedom and religious communities accepted after 1990- list of laws on religious freedom and agreements

between state and religious communities.

The most important provisions on the religious law have been grouped into two extensive articles of the Constitution (Article 25 and 53). The first one includes norms concerning the legal situation of religious organizations and their relationship with the state. It is placed in Chapter I ("The Republic") among the norms of particular significance to the character of the state. The other, on the other hand, applies mainly to the freedom of conscience and religion in individual dimension and it is placed in Chapter II ("The Freedoms, Rights And Obligations Of Persons And Citizens”) among other personal freedoms and rights.

Particular significance in the Polish religious law is attached to the Concordat between the Vatican and the Republic of Poland of 28 July 1993, which was signed on 28 July 1993 and ratified on 23 February 1998. The provisions of this international agreement apply to the legal situation of the Catholic Church and Catholics and ensure them a possibility of executing the freedom of religion at individual and community level. Due to the principle of equal rights of churches and other religious organizations (Article 25 (1) of the Constitution) these

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provisions are not, however, deprived of significance also for other religious communities whose legal situation is regulated.

Similarly to the entire system of Polish law, the basis of regulation in the religious law is the act. The Act of 17 May 1989 on Guarantees of the Freedom of Conscience and Faith is of special importance to the religious legislation. It is a general act as it refers to believers of all religions and to religious organizations as a whole. This prescriptive act includes also separate provisions on the registration of churches and other religious organizations as well as regulations on property-related matters concerning religious organizations, in respect of which this question has not been fully regulated in a separate act.

One of the specific features of the legislation related to religious freedom in the Republic of Poland is the presence of acts regulating individually the legal situation of particular religious organizations (the so-called individual acts). Their aim is to take into consideration the specificity resulting from different rules (e.g. doctrinal, liturgical) adopted by a specific religious group with respect, however, for the principle of equal rights of churches and other religious organizations.

If the legal situation of a specific religious association has been defined in an individual act, some provisions of the Act on Guarantees of the Freedom of Conscience and Faith will not apply.

The process of passing acts on the legal situation of particular religious organizations was resumed after a few decades of stagnation (in the period of People’s Republic of Poland) with the adoption of the Act of 17 May 1989 on the Relation of the State to the Catholic Church in the Republic of Poland. Applying the form of separate acts, still under the provisions of the Constitution of 22 July 1952 remaining in force, the relation of the state to another 11 churches and other religious organizations was defined. The religious legislation in Poland has thus been complemented with the following prescriptive acts:

1) Act of 4 July 1991 on the Relation of the State to the Polish Autocephalic Orthodox Church,

2) Act of 13 May 1994 on the Relation of the State to the Evangelic-Augsburg Church in the Republic of Poland,

3) Act of 13 May 1994 on the Relation of the State to the Evangelic-Reformed Church in the Republic of Poland,

4) Act of 30 June 1995 on the Relation of the State to the Evangelic-Methodist Church in the Republic of Poland,

5) Act of 30 June 1995 on the Relation of the State to the Baptist Church the Republic of Poland,

6) Act of 30 June 1995 on the Relation of the State to the Church of Seventh Day Adventists the Republic of Poland,

7) Act of 30 June 1995 on the Relation of the State to the Polish Catholic Church in the Republic of Poland,

8) Act of 20 February 1997 on the Relation of the State to the Jewish Religious Communities in the Republic of Poland,

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9) Act of 20 February 1997 on the Relation of the State to the Mariavits Catholic Church in the Republic of Poland,

10) Act of 20 February 1997 on the Relation of the State to the Mariavits Old Catholic Church in the Republic of Poland,

11) Act of 20 February 1997 on the Relation of the State to the Pentecostal Church in the Republic of Poland.

This list should be complemented with three other statutory acts, which date back to the period of the Second Polish Republic but are still binding. These include:

1) Ordinance of the President of the Republic of Poland of 22 March 1928 the Relation of the State to the Eastern Old Rite Church without any Religious Hierarchy,

2) Act of 21 April 1936 on the Relation of the State to the Muslim Religious association in the Republic of Poland,

3) Act of 21 April 1936 on the Relation of the State to the Karaite Religious association in the Republic of Poland.

Moreover, the religious legislation in Poland also includes acts which regulate only specific issues related to the activity of religious groups as well as certain rights and duties of particular persons connected with the practice of faith. What these acts have in common is that matters related to religious freedom are regulated so to speak on the margin of the entire regulation on a specific field of human activity. The most important acts of this group include among others:

1) Act of 20 March 1950 on taking over by the State of mortmain, providing guarantee to parish priests in respect of possessing farms and establishing the Church Fund, which regulates among others basic issues related to the operation of the Church Fund;

2) Act of 31 January 1959 on cemeteries and burying the dead, which regulates among others issues related to religious cemeteries.

III. Government's plans for changing legislation in this field (drafts of

acts).

The Constitution in force has reinforced the practice of regulating the legal situation of specific religious organizations by way of individual acts. However, a specific legislative procedure related to such prescriptive acts was defined in compliance with Article 25 (5) of the Constitution. It was agreed that such acts would be passed pursuant to agreements concluded by the Council of Ministers with appropriate representatives of religious organizations.

Article 25 (5) of the Constitution in force applies directly to acts determining the relations between the Republic of Poland and non-Catholic religious organizations. This provision of Article 25 (5) of the Constitution was adopted in order to provide non-Catholic religious organizations with a possibility of taking

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part in decision-making in respect of norms defining their legal situation similar to the Catholic Church, whose status is based on the provisions of the Concordat. Such agreements, contrary to the Concordat, cannot however be considered as self-contained sources of effective law. They only constitute a necessary element of the act preparation procedure.

At present, talks are held on the subject of signing such agreements with several religious organizations such as the Muslim Religious Union in Poland.

IV. Educational activities of churches and religious communities: number of schools and universities established by churches and religious communities, the number of students attending their

programmes. The right to establish and operate schools in Poland is guaranteed by the

Constitution (Article 70 (3)). Pursuant to the general principle provided for in the fundamental statute, ordinary acts such as the Act on the System of Education and the Act – Higher Education Law also ensure the possibility of establishing and operating schools to natural and legal persons. Neither the Constitution nor the school legislation mentions any names of churches or other religious organizations among the entities authorized to operate schools. Nevertheless, the statement that all natural and legal persons are eligible entities allows to include also churches and other religious organizations.

The relevant guarantees for churches and other religious organizations within the scope of educational and academic activity have been provided for in the Concordat, in the acts which regulate individually the legal status of particular churches and religious organizations as well as in the Act on Guarantees of the Freedom of Conscience. Churches and religious organizations perform academic and educational tasks in the field of state education and by operating religious schools. Organizational units of churches and other religious organizations may operate both schools typical of the educational system (primary schools, lower-secondary schools, upper-secondary schools etc.) as well as untypical schools referred to as the interchurch schools (e.g. seminaries). The educational and academic activity under the state education is conducted by the Catholic Church and the churches belonging to the Polish Ecumenical Council.

The rights of churches and religious organizations as regards establishing and operating schools typical of the educational system, including primary schools, lower-secondary schools and upper-secondary schools, result from general rules and are not different from the rights of other natural and legal persons.

At present, there are about 460 religion-oriented schools typical of the educational system, including 122 primary schools (0.83% of all schools of this type in Poland), 160 lower-secondary schools (2.24% of all schools of this type in Poland) and 145 upper-secondary schools (4.25% of all schools of this type in

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Poland). 456 of them are Catholic schools and the remaining four are evangelical schools. The bodies operating these schools are usually dioceses, parishes, religious congregations and associations.

Not all religion-oriented schools can be rated among religious schools. In practice, there may be religion-oriented schools which do not belong to religious schools and vice versa - religious schools which are not religion-oriented (e.g. schools of foreign languages operated by the Methodist Church).

The Catholic Church in Poland operates several pontifical universities offering education on the Church's teachings (theology, Christian philosophy, history of the Church, Canon Law etc.). These include: the Pontifical Academy of Theology in Cracow, the Pontifical Faculty of Theology in Wrocław and the Pontifical Faculty of Theology in Warsaw consisting of two independent sections: St. John the Baptist and St. Andrew Bobola „Bobolanum”. The legal status of these schools is regulated by the Concordat and the Agreement between the Government of the Republic of Poland and the Polish Episcopate of 1 July 1999 on the legal status of higher education institutions established and operated by the Catholic Church, including universities, separate faculties and upper seminaries and the recognition by the state of degrees and titles granted by these institutions. This Agreement is an executive act to Article 15 (2) of the Concordat.

The master's degree conferred by the said institutions is recognized under the above-mentioned agreements as an equivalent of the degree conferred by state higher education institutions. The pontifical institutions, which employed the number of teaching staff provided for in the national regulations, have also been granted the right to confer academic degrees equivalent to the degrees conferred by state universities. The periodic assessment of the academic level of PhD dissertations and post-doctoral theses is made by the Central Qualifying Commission in cooperation with the Scientific Council of the Polish Episcopate.

The Jesuit University of Philosophy and Education “Ignatianum” in Krakow, established on the basis of the former Philosophical Faculty of the Jesuit Association, has the analogous status to the above-mentioned pontifical universities. It is a religious university with two faculties (philosophy and pedagogy).

Churches and other religious organizations have also the right to establish higher education institutions, the curriculum of which is outside the scope of the Church's teachings. Proposals in this respect are put forward by the superior bodies of churches and other religious organizations while new higher education institutions are established by way of an act. The Catholic University of Lublin is such a school. It performs its activity on the basis of the Act of 27 July 2005 - Higher Education Law. The financial situation of the Catholic University of Lublin has been regulated by the Act of 14 June 1991 on the Act of financing the Catholic University of Lublin from the state budget. On the basis of these provisions, the University receives subsidies from the state budget under the rules specified in respect of public schools excluding the financing of the costs related to the

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execution of fixed assets under construction serving the educational process which are financed from own means. Moreover, subsidies for the Catholic University of Lublin are provided for in the Concordat.

Several state universities also have faculties of Catholic theology. These include: University of Szczecin, Nicolaus Copernicus University in Toruń, University of Opole, University of Warmia and Mazury in Olsztyn, University of Silesia in Katowice and University of Cardinal Stefan Wyszyński in Warsaw. Moreover, the University of Cardinal Stefan Wyszyński has the Faculty of Christian Philosophy and the Faculty of Canon Law. Before the said University was established in 1999, the Church-related faculties had operated within the Academy of Catholic Theology. The faculties in Opole and Olsztyn were established together with the universities. The Faculty of Theology at Adam Mickiewicz University was established as a result of the transformation of the Papal Faculty of Theology, which had operated in Poznań since 1969. The remaining faculties were established by way of resolutions passed by the university senates after the approval of the Holly See. Their educational and academic activity is regulated by the regulations on higher education and by regulations of the Church. Their status is defined in the agreements concluded between the Polish Episcopal Conference and the Government of the Republic of Poland as well as in statutes and regulations.

The faculties are supervised by diocesan bishops competent for the location. The supervision applies mainly to the selection of academic teachers and the compliance of the Catholic theology curriculum with the provisions of the Church law. First of all, the faculties can only employ teaching staff who perform the canonic mission.

The Christian Theological Academy in Warsaw is a state theological university with one faculty. The following institutions have statutory guarantees to operate theological studies at the said Academy: Church of Seventh-Day Adventists, Polish Autocephalic Orthodox Church, Evangelic-Augsburg Church, Evangelic-Methodist Church, Baptist Church, Polish Catholic Church, Mariavits Catholic Church and Pentecostal Church.

The educational and academic activity at the University of Bialystok is performed by: the Department of Orthodox Theology and the Department of Catholic Theology. These are interdepartmental units subject directly to vice-chancellor.

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V. The most important tax reductions related to religious communities and donators; legislation which determines taxation of religious

communities and donations. The aim of the activity of churches and other religious organizations is

generally meeting people’s religious needs, i.e. spiritual needs. The execution of this task requires, however, a certain minimum number of tangible fixed assets (such as churches) and funds (necessary for the purposes of e.g. education with the use of contemporary mass media). The Act of 17 May 1989 on Guarantees of the Freedom of Conscience and Faith and individual acts clearly acknowledged the right of religious organizations to purchase, own, sell as well as manage movables and immovables. The provisions of these acts also provide for the right to collect contributions and receive donations, inheritances and other benefits from natural and legal persons.

The most important way of financing the activity of church institutions in Poland is the dedication of the faithful. The regulations in force facilitate churches and other religious organizations to raise funds from their members. The collections organised for the purposes closely connected with the activity of religious communities are excluded from the scope of the Act of 15 March 1933 on public collections. Tax acts, on the other hand, provide for the possibility of decreasing the taxation base by taxpayers making donations for the activity of religious entities. Particularly favourable law applies to donations made by natural persons for church charity according to the provisions of the acts regulating the legal situation of certain Churches. A relatively new solution is the possibility of transferring a part of the income tax in the amount not exceeding 1% of the tax for public benefit organizations operating in accordance with the Act of 24 April 2003 on public benefit and volunteer work. This possibility applies to taxpayers who pay personal income tax under general rules (according to the Act on personal income tax) and lump-sum tax on registered income.

A substantial role in the financing of the activity of church institutions in Poland is also performed by the Church Fund. The Church Fund was established on the basis of the Act of 20 March 1950 on taking over by the State of mortmain, providing guarantee to parish priests in respect of possessing farms and establishing the Church Fund. The initial array of purposes for which the means from the Church Fund could be allocated was defined in Article 9 of the Act. After 40 years, in connection with democratic transformations, the array was extended according to the Ordinance of the Council of Ministers of 23 August 1990 on extending the array of purposes of the Church Fund. Then, due to the change of the model of financing clergymen insurance, the array of purposes for which the means from the Church Fund could be allocated, specified in the Act on taking over by the State of mortmain was again modified pursuant to the Act of 13 October 1998 on the system of social insurance. When defining the current purposes for which

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means from the Church Fund can be allocated, one should consider the Act of 27 August 2004 on health care benefits financed from public funds (Dz.U. No. 210, item 2135, as amended), which clearly stipulates the share of the Fund in the financing of contributions to health insurance of clergymen.

The regulations in force allow, as an exception, for the possibility of using other state subsidies by religious organizations. Pursuant to the Act of 17 May 1989 on Guarantees of the Freedom of Conscience and Faith, subsidies and subventions for religious entities may only be granted by the state on the basis of relevant acts or related regulations. On the basis of such regulations, the activity of religious organizations which is not strictly religious and which shows the characteristics of social utility is also subsidized at times. It should be emphasized at the same time that according to the regulations in force, the activity of churches and other religious organizations which serves humanitarian, charitable, academic and educational purposes, is by law equivalent to the activity pursuing similar objectives and taken by state institutions.

Under the rules specified in respect of state universities, except for the financing of costs related to the execution of fixed assets under construction serving the educational process, the activity of e.g. the Catholic University of Lublin and the Pontifical Academy of Theology in Cracow is financed. In 2006, the acts providing for the financing of the Pontifical Faculty of Theology in Warsaw and Wrocław (except for financing the costs of the implementation of construction investments) were also passed. Religious entities can also receive subsidies generally intended for entities carrying out a specific activity. For example, schools operated by church institutions receive subsidies under the general rules applying to schools operated by non-public entities pursuant to the Act of 7 September 1991 on the System of Education. It needs to be stated, however, that these subsidies are not, as a matter of fact, state subsidies for churches because they are targeted at charges and students.

In order to receive funds necessary to accomplish religious purposes, church organizational units may also conduct a business activity. Thus, they are subject to all the regulations on the exercise of such an activity. They can only be exempt from income tax on the basis of tax acts if the income from the business activity are allocated for religious, humanitarian or educational purposes.

Pursuant to the Act of 17 May 1989 on Guarantees of the Freedom of Conscience and Faith, citizens (as well as aliens and stateless persons equal to citizens within this scope) have the right to freely make donations for religious communities. The equivalent of this right of particular persons is the right of churches and other religious organizations to collect contributions and receive subsidies, inheritances and other benefits. The guarantees of the right of specific religious organizations to collect contributions for religious purposes, humanitarian activity carried out by church institutions and supporting clergymen and monks are also provided for in the acts (passed since 1989) regulating individually the relation of the state to specific religious groups.

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In order to really guarantee the right of churches and other religious organizations to receive funds due to the dedication of believers, the collection of contributions for the purposes closely connected with the activity of religious institutions was excluded from the Act on public collections. Article 13 (a) of the said Act stipulates that its provisions do not apply either to the collection of contributions for religious purposes, to charitable, academic and educational activities taken by the Church or to the support of clergymen and monks. This means that the public collection of contributions for these purposes does not require authorizations provided for in Article 1 of the Act. The provisions of the Act do not apply, however, only to such public collections which are held within church premises, in chapels, places and under circumstances commonly recognized in a specific neighbourhood and organized in a traditionally fixed way.

Tax solutions concerning the income from non-business statutory activity (such as means from contributions donated by believers for religious purposes) are also of great significance to churches and other religious organizations. Such income are not subject to corporate income tax and moreover, bookkeeping obligations imposed by general tax regulations do not apply to them.

Making donations for the purposes related to the activity of religious entities has also important tax consequences for donors. According to the regulations on income tax (both personal and corporate income tax), the tax base can be decreased by, among others, donations made for the purposes of the religious worship and the activity of public benefit organizations, which includes in particular the activity conducted by legal persons and organizational units of churches and other religious organizations in the area of public tasks. The scope of public tasks includes for example tasks performed in the area of social assistance, charity, science and education as well as aid for victims of natural disasters, armed conflicts and wars.

The amount of tax deductions made on account of donations has been reduced by law. The upper limit of these deductions in respect of personal income tax is 10% of the income. The Act on corporate income tax stipulates, on the other hand, that total deductions made on account of donations cannot exceed 6%.

Special law applies to donations made by natural persons for church charity. In this case, the legal basis includes the provisions of the acts on the relation of the state to certain churches, which are of special nature in relation to the provisions of tax acts. Pursuant to the above-mentioned provisions, “donations for church charity are excluded from the tax base for the income tax applying to donors and the compensation tax if a legal person from the church presents a donor with the delivery receipt and the report on allocation of the donation for its activity within the period of two years from the day when the donation was made”. (...)".

The regulations on donations for church charity included in the acts regulating the legal situation of specific churches stipulate that in respect of such donations the limits of permissible deductions do not apply. If individual acts contain the relevant provisions, donations for this kind of an activity can be excluded from the tax base for the income tax irrespective of the amounts of donations.

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Since recently there has also been a possibility of transferring 1% of personal income tax for public benefit organizations The status of public benefit organizations can be granted also to legal persons and organizational units of churches and other religious organizations unless their statutory aims include the exercise of a public benefit activity.

Legal persons and organizational units of churches and other religious organizations gain the status of public benefit organizations when they are entered into the National Court Register pursuant to the provisions of the Act of 20 August 1997 on the National Court Register and they lose it when they are deleted from this Register. The conditions for obtaining the status of a public benefit organization are provided for in Article 20 and 21 of the Act of 24 April 2003 on public benefit and volunteer work.

Subventions and subsidies from the Church Fund.

The Church Fund is the business assets, which according to the principles of the Act of 20 March 1950 on taking over by the State of mortmain were to be established from the income from real property taken over at that time by the state from churches and other religious organization and from state subsidies defined by the Council of Ministers. The income from the property which became the state possession and which had earlier belonged to churches and other religious organizations were to be allocated only for church and charity purposes. Such property was not, however, entered into the register. The income from such property were not estimated in spite of a clear obligation stipulated in the Act. As a consequence, the only source of financing the Church Fund is subsidies from the state budget. The amount of the contribution to the Church Fund is defined every year in the Budget Act.

The Budget Act of 25 January 2007 defined the budget subsidy for the Church Fund for the year 2007 in the amount of PLN 96,684,000.

The purposes for which the resources from the Church Fund may be allocated can be sorted in three groups. The first one includes the obligation to pay part of contributions to social and health insurance of clergymen. The amount of money allocated for this purpose from the Fund is fixed by the provisions of relevant acts. When defining the purposes of the Fund, Article 86 (4) of the Act of 27 August 2004 on health care benefits financed from public funds should be taken into consideration. It clearly stipulates that the means from the Church Fund will also be allocated for the contributions to health insurance of seminarists, postulants, novices, juniorists and clergymen who are not income tax payers.

The significant majority of the Church Fund is allocated for the financing of contributions to the insurance of clergymen. Following the changes introduced in the system of financing the insurance of clergymen, which became effective on 1 January 1999, over 80% of means from the Church Fund were allocated for this purpose until 2002 (91.9% - in 2001). Before that, the contribution of the Church Fund to the purposes related to the insurance of clergymen in relation to total

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amount of the Fund had been smaller (in the years 1990-1994 it did not exceed 50%).

The second group of purposes for which means from the Church Fund can be allocated includes various humanitarian activities carried out by churches and other religious organizations. The regulations in force clearly allow for the charity, educational and care activities as well as initiatives aimed at combating social pathologies. Upon the request of legal persons of churches and religious organizations, subsidies from the Church Fund can be allocated for specific investments related to the pursue of above-mentioned purposes. The number and amount of subsidies depends on the amount of means of the Church Fund.

The reports on the activity of the Fund in the years 1992-2002 indicate that usually 41-47% of the funds intended for subsidies (i.e. remaining after the settlement of liabilities to the Social Insurance Institution) are allocated for the church humanitarian activity. The subsidies are granted mainly for renovation, modernization and expansion of such institutions as: social welfare centres, rehabilitation and health care centres, hostels for the homeless, old people’s homes, specialist homes for people with severe handicaps, health care centres, special care centres, single mother homes, eating places, boarding houses, schools, kindergartens, orphanages and children’s homes. Applications for subsidies to the humanitarian activity are submitted mainly by the institutions of the Catholic Church, which thus receive the vast majority of funds allocated for this purpose (according to the reports, they are granted over 90% of all means of the Fund expended on the humanitarian activity).

Moreover, the Church Fund allocates the means for the protection and salvage of sacred buildings. Pursuant to the regulations in force, the means of the Church Fund may be used in particular for the reconstruction, restoration and renovation of sacred buildings of historical value. The mode of granting subsidies is analogous to the one applying to the subsidies for the humanitarian activity.

According to the reports on the activity of the Church Fund (for the years 1992-2002), usually 53%-59% of the means of the Fund allocated for the subsidies is expended on the protection and salvage of sacred building of historical value. The majority of these means (normally a little over 80%) are used by legal persons of the Catholic Church. A significant part of the subsidies is also granted to organizational units of the Polish Autocephalic Orthodox Church (e.g. 10.3% - in 2000, 10.6% - in 2001 and 15.3% - in 2002). Other religious organizations also receive noticeable amounts of subsidies for the purposes related to the protection and salvage of sacred buildings of historic value (e.g. 5.4% - in 2000, 2.8% - in 2001 and 5.3% - in 2002).

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Tax and duty exemptions for legal persons of the Church One of the ways of supporting the activity of churches and other religious

organizations by the state is tax and duty exemptions. The exemptions are justified by the activity for the society which is typical of religious groups and which is usually carried out next to the strictly religious activity as a consequence of the doctrine adopted. Different kinds of religious entities conduct charitable and educational activities and contribute to combating social pathologies and thus, they perform tasks which otherwise would have to been executed by state institutions.

When reconstructing the current legal situation of organizational units of churches and other religious organizations as the entities obliged to pay public levies, two kinds of regulations should be taken into consideration. It is not only the acts regulating the specific fields of the financial law but also prescriptive acts determining the legal situation of religious unions that apply within this scope.

The acts regulating the legal situation of religious unions include a range of special provisions amending general provisions of tax and customs law. However, if there are no special provisions, “the property and the income of churches and other religious organizations are subject to general tax regulations in force” and to relevant provisions of the acts which regulate individually the legal status of particular religious organizations.

Rules on the taxation of income of legal persons of churches and other religious organizations are mainly dependent on the character of the activity which generated the income. The income from a non-business statutory activity is treated differently than the income earned from the other activities.

Particularly favourable law applies to the income earned by church legal persons from non-business statutory activity. Such income is tax-free and moreover, the bookkeeping obligation imposed by the provisions of the Act of 29 August 1997 – Tax Ordinance does not apply to them.

The absolute tax exemption does not apply to the income earned from a different activity. It is only part of the income allocated for the purposes specified in the Act and connected with the statutory activity of religious entities that is tax-free. Thus, the Act mentions the purposes related to the religious worship, education, science, culture, charity, restoration of monuments, operation of religious educations centres and church investments in the area of: construction, extension and renovation of churches and chapels, adaptation of other buildings to sacred purposes as well as other investments designed for religious education and charity centres. In respect of the income from non-business statutory activities, the exemption from the bookkeeping obligation imposed by the Tax Ordinance does not apply.

Companies whose sole shareholders are church legal persons have been treated in the same way as church legal persons conducting a business activity. Their income is tax-free where it is allocated for the above-mentioned purposes.

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Property tax. When defining tax relief and exemption for organizational units of

churches and other religious organizations in respect of property tax, one should refer to the acts regulating the legal situation of religious unions.

Church non-dwelling property, except for the premises occupied for the exercise of a business activity, has been treated in a special way. Pursuant to the regulations which apply to all religious unions, such property is tax-free provided that it belongs to church legal persons or is used by them under a different legal title.

Additional exemptions are provided for in the acts passed since 1989, which determine individually the legal status of churches and other religious organizations. According to these provisions, tax exemption applies also to some dwelling property. This refers, in particular, to the property entered into the register of monuments. Moreover, the property used as boarding houses by clerical schools and seminars is exempt from taxation, too. Tax-free objects provided for in specific acts also include monasteries or homes of contemplative orders as well as houses of formation of religious institutes and priests and nuns’ retirement homes (and in the case of churches whose doctrine does not oblige the clergymen to remain in celibacy, their widows are exempt from tax as well). Exemption from the property tax applies also to the premises of central administration of specific religious unions in Poland and to the buildings where the management boards of dioceses (districts, gminas) which form the structures of these unions are seated.

Inheritance and gift tax.

The Act of 28 July 1983 on inheritance and gift tax does not include any provisions which would apply exclusively to churches and other religious organizations. The mere structure of the inheritance and gift tax shows, however, that it is of little significance to religious entities. According to the general rule, the acquisition of property or property rights by natural persons as defined in the Act is subject to this tax.

However, the Act on the Relation of the State to the Catholic Church in the Republic of Poland (Article 55 (6)) and the Act on the Relation of the State to the Polish Autocephalic Orthodox Church (Article 40 (6)) contain provisions establishing the exemption from inheritance and gift tax. They stipulate that “the acquisition and disposal of property and property rights by church legal persons by way of legal acts as well as inheritance, legacy and prescription is exempt from inheritance and gift tax (...) if the objects are: 1) things and rights not intended for a business activity, 2) printing machines, equipment and materials as well as paper brought from abroad.”

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Tax on civil law transactions. The Act of 9 September 2000 on tax on civil law transactions provides for an

array of entities which, acting as parties to civil law transactions, are exempt from the tax specified in this prescriptive act. They include public benefit organizations and therefore church legal persons. They are exempt from tax if they make civil law transactions only with relation to the free activity of a public benefit organization.

Customs duties.

Regulations concerning reliefs from customs duties of good imported for legal persons of the Church were amended due to Poland’s accession to the European Union. Poland was obliged to apply Community law on customs matters from 1 May 2004.

Pursuant to the Act of 1 March 2004, Provisions implementing the Act – Customs Law amended the provisions of acts regulating the legal situation of churches and other religious organizations, introducing identical regulations relieving from import duties goods intended for charity and welfare and educational and training purposes as well as cultural goods for worship purposes, imported for legal persons of the Church within and on the conditions specified in Regulation No 918/83/EEC of 28 March 1983 setting up a Community system of reliefs from customs duty.

Pursuant to the provisions in force, legal persons of the Church may solely use import reliefs (thus covering objects imported to the EU customs territory from the third countries). The condition to be relieved is meeting the conditions specified in Council Regulation No 918/83, in particular restrictions and prohibitions on giving goods to other entities. It should also be borne in mind that, pursuant to EU law, customs reliefs are applied on the request of the declarant and not ex officio.

Regulation No 918/83 mentions the relief of goods imported for religious reasons only twice. Pursuant to its provisions, firstly, good used for religious reasons or for reasons of worship may be subject to relief. Secondly, relief may relate to leaflets, brochures, guidebooks and other documents for promotion, the main aim of which is to encourage trips abroad, in particular participation in religious meetings or events. However, their advertising cannot cover more than 25 % of the surface, unless advertising is for Community undertakings. In addition, their promotional nature must be obvious.

Pursuant to the Council Regulation in question, discussed in the context of provisions of religious acts, it is obvious that legal persons of the Church may benefit from reliefs for goods imported for religious reasons, but also from other reliefs provided for in the regulating laws, if they meet the conditions specified therein. In particular they may therefore benefit from reliefs for objects of training, scientific or cultural nature and goods intended for charity and philanthropic organisations.

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VI. Experiences with implementing and executing legislation (list of registered religious communities, state financial support for activities of

churches and religious communities) The Act on Guarantees of the Freedom of Conscience and Faith provides for the

procedure of registration of religious organizations. Registration is performed on the request of the interested parties and the very registration procedure is implemented by a registering body, i.e. Minister of Interior and Administration. Subjecting oneself to registration procedure is not obligatory in the current applicable legislation. Obtaining entry in the register of churches and other religious organizations results in inclusion of a given church or other religious organization in the group of religious organizations of unregulated legal situation with all the resulting consequences.

Right of entry in the register of churches and other religious organizations is exercised by a group of at least 100 Polish citizens with full capacity to perform legal acts. The request for entry in the register shall include:

(1) list containing notarized signatures of applicants with their personal data, (2) information about forms of religious life and methods of activity of the

religious organization to date within the territory of the Republic of Poland, (3) information about basic doctrinal objectives, sources and rules, religious

ceremonies, (4) address of the organization's registered offices and data of persons making-

up the managerial implementing bodies. The application shall be accompanied by declaration of establishment of church

or other religious organization, status and other documents. The status should contain, in particular:

(1) name of the religious organization differing from names of other organizations,

(2) area of activity and registered office of authorities, (3) objectives of activity and forms and rules of their implementation, (4) bodies, manner of their appointment and dismissal, scope of competences

and mode of decision-making, (5) sources of financing, (6) mode of statute modification, (7) manner of external representation and undertaking proprietary obligations,

manner of gaining and loosing membership and members’ rights and obligations, (8) manner of appointment, dismissal and competences of clergymen, if the

religious organization provides for establishment of such positions, (9) manner of dissolving a religious organization and property destination. Application for entry in the register is examined by a registering body, i.e.

Minister of Interior and Administration. In the course of procedure of religious organization registration, the registering body may request the applicant to provide

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explanations of the content of application. Should the registering body determine deficiencies or negligence in the content of the application in the course of the procedure, it shall set a two-month period to provide complements. The registering body takes decisions on entry in the register or refusal to enter in the register. Documents submitted to the registration files provide basis for the decision to enter in the register. The registering body may, however, address competent state bodies to verify authenticity of data and information provided in the application.

Once the entry to the register is made, the church or other religious organization (as well as organisational units, in the case of which the statute provides for such a possibility) obtain legal personality, using all the rights following from the acts and being subject to all the resulting obligations.

The decision to refuse entry may be made, when: applicants failed to remove, by the determined period, the deficiencies and negligence in the content of the application, the application contains provisions in contradiction to the provisions of acts protecting public security, order, health or public morals, custody or fundamental rights and liberties of other persons and when the organization is not in fact religious community, but only passes itself off as such.

Pursuant to Article 2 (1) of the Act of 17 May 1989 on Guarantees of the Freedom of Conscience and Faith, churches and other religious organizations are established to believe in and popularise religious faith. The Act also specifies positively, that psychological research and experiments shall not be recognised as carrying out the religious functions. On account of the above mentioned provisions, there is basis to refuse registration of organization, which in fact is not a religious community. Registration procedure is of one-instance nature. In relation to refusal to make entry in the register by the registering body, one may put forward a motion to rehear the case, to which the provisions on appeal relate. Entity shall have the right to lodge a complaint to an administrative court against the decision of the registering body.

Register of churches and other religious organizations shall be divided into two sections: Section “A” in which churches and other religious organizations are entered, and Section “B” in which interchurch organisations are entered. Separate register books are kept for the both Sections.

Deletion from the register shall be due to a decision of the registering body, when:

(1) legal status of the religious organization is regulated in a separate act, (2) competent body of the religious organization has notified the registering

body of cessation of activity, (3) religious organization has lost features determining obtaining entry in the

register, (4) it has not replied, within 3 years, to the request of the registering body and

failed to update data on the registered office of the organization and the persons making-up the managerial implementing bodies,

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(5) it is established by final judgment that activity of the religious organization grossly infringes the law or provisions of the statute; request is made to the court for this type of judgment by the registering body or a public prosecutor. In respect of infringement of law or statute, the District Court shall adjudicate as court of first instance.

Currently, there are 149 churches and other religious organizations in Section “A”, and 5 interchurch organisations in Section “B”.


There is no church tax institution in Poland; however, the solution is taken

into account with possible changes of churches’ and other religious organizations’ financing system in Poland.

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PORTUGAL TOWARDS RELIGIOUS FREEDOM

Eduardo André FOLQUE da Costa Ferreira Commision of Religious Freedom

Legally God exists and however He does not exist. Believers exist, their

conscience, their desire of own salvation as well as other’s salvation, their feelings, their faith, their worship.

Therefore, God is under und above the world of law inasmuch as each man and each woman put on Him his faith as Lord, a supreme being above space and time. And even without a classical God, like Buddhism, their faith, the trust they put on anything transcendental.

Nor states neither other political communities could grant God’s existence despite of references to God in some constitutions. However, they are accomplished in assuring that individual relation with transcendent is treated as a main sign of his own dignity. States don’t worship gods but should worship every man - citizen or foreigner - his conscience and the faith that guides him in this life and in the other life he believes to achieve after death.

Not leaving believers faith and feelings at mercy of free will decisions from Civil Service, Courts or even Parliaments is the starting point for religious freedom taken seriously.

Although a starting point, it claims more - to acknowledge other right – freedom of conscience to believe and to don’t, to stop believing or simply to change individual faith and to profess another religion.

Incidentally, Portuguese Constitution (1976) distinguishes freedom of consciousness and religious freedom (art. 41).

Freedom and not just tolerance, in the sense, that Government would show some kind of indulgence, shut his eyes, towards worship, churches and the birth of new ones.

For any political activist that fights for human rights, the meaning of religious freedom is not a complex issue. But that goes in a different way for lawyers. Religion concept and its boundaries – as well as art - don’t fit with traditional law categories. And this point is so much important as religious freedom requires from political powers to settle down some minimum conditions and the displacement of social, cultural and even economical impediments in order to allow each believer to develop his own person on transcendental and untouchable standards. Courts, the Ombudsman and other independent agencies must remember that man was not made in order to sabath.

To describe dogmatically what a religion is, as well as to define what art is and what is not, is, in my opinion, a devil’s temptation on lawyers. It can suffocate religious freedom.

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Portuguese Commission on Religious Freedom, created five years ago, has faced this problem a lot of times and I think this is a key issue – what reasonably is sacred and what is profane. How to separate philosophical thinking or even cosmological acknowledgments from strictly religious area?

There isn’t and we shouldn’t have any single criteria. This kind of juridical task rolls out in removing wheat from what we can regard as chaft. Sometimes, the word sect seems to be a key concept for everything. When you mistrust any new movement or church, you are tempted to use it. Many religions have in their past some sectarial features.

What, by chance, must legally raise to be looked after in matter of sectarism is to save individual freedom within churches, mainly when individuals want leaving. In this sense, sect can mean any religious society which sacrifice freedom of his own members, threatening their awareness, their proprieties and their moral or physical integrity.

This is an important issue which claims from juridical sciences a growing interest when it comes to conciliate individual freedom and collective or institutional rights.

In portuguese contemporary history, the main issue was not so much religious freedom but discrimination of religious minorities. First republic (1910-26) put an end to the ancestral alliance between Crown and Catholic Church but as a matter of fact governments fought against catholic people, bishops and priests. Monasteries were closed and a big part of Church lands and buildings was simply confiscated. This laicism was sowing the next period, an authoritative regime (1926-74) with an informal confessionalism given to Catholic Church in exchange for some regalism. For instance, bishops depend on Government for their nomination and Salazar could forbid Oporto’s Bishop, D. Antonio Ferreira Gomes, of returning home.

After Carnation Revolution, Catholic Church kept the main profits without government interference and stayed but alone. Other churches were regulated by the 1971 Act about religion.

In this way, implementation of religious freedom has been, on last 30 years, in putting other churches at the same step or next to it. More then decreasing Catholic rights and freedoms, the main task was to spread them to Protestants, Muslims, Jews and members of other confessions, e.g. Hinduisms, most of them returned from portuguese african and asian colonies. Those rights are, for instance, religious assistance at hospitals, jails and in Army, religious education inside public schools (as a choice made by parents until 16 years old) and a similar treatment on tax benefits.

Nowadays, we can recognize in some opinion makers – and even in some political parties - another view for relations between churches and public powers. Some people risks to misunderstand religious freedom. They mix it with conscience liberties. On that way, everyone chooses to or to be not religious and all – believers, agnostics and atheists – must be treated on the same floor. So, religion in public spaces can disturb people who don’t believe.

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At this moment, this is a real problem and religion can not be regarded on this way – like an option of taste. States should be neutral. However, to be neutral is not to ignore or dismiss religion. Separation is a good achievement inasmuch as it stands cooperation. Free speech and artistic freedom, as freedom on scientific searching and the rights of public universities are really important to understand religious freedom and churches rights.

An atheist doesn’t have the right of expurgate religion from public life as well as the one who hates music can not claim for silence, holding the orchestra that plays on a square or at public parks.

Portuguese new Act for Religious Freedom, approved by Parliament on 2001, is a good framework, but in many subjects it needs developments. Many of those norms are not self-executing.

One of last developments – and an important one – was published just one year ago. It concerns marriage, allowing some non-catholic churches to celebrate valid civil marriages. Civil marriages – as ruled by common law - but on religious form.

We can find five different classes of religious communities: a) First, the Roman Catholic Church as an international institution, granted by

international law as something like a state, that concluded a new Concordat with Portuguese Government on 2004. Concordat assures catholic people specific rights. At first sight, Concordat may suggest discrimination against religious minorities. I don’t think so. On one hand, because many of the rules contained have a cultural significance that goes beyond catholic relevance, e.g. public holidays, like Easter and Christmas. On the other hand, Concordat suits catholic needs in particular and takes care of them. For instance, the role of priests is essential providing sacraments. Last, but not least, churches recognized as settled down obtain a very similar statute to the one of Concordat, so that they can negotiate internal agreements with Government.

b) Those are the second rank, established churches - radicadas (which means with roots). Those that Government, advised by Commission for Religious Freedom, considers to fulfil some important role, even on regional or strictly local levels. On this step, churches benefit rights that concern tax issues, marriage and representation in the Commission. That is the case of Islamic and Jew communities, as well as many protestant churches.

c) The third rank is that of registered churches. They have all the general rights on religious freedom.

d) Then, we have to consider foreign churches and their portuguese communities on national territory. They can preserve their foreign nature (e.g. Church of England), instead of making a portuguese corporation.

e) Last, simple religious societies. This is the lowest standard, much more based on association freedom than on religious rights.

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In all these categories, the core issue is to know, to perceive genuine religious purposes. If law can’t provide for an absolute answer – that belongs to philosophical and sociological studies – it is possible to identify some marks. Some signs of what is really religious as the mainstream of an institution.

We don’t judge beliefs. We don’t judge believers. We don’t make Theology. Nevertheless, the Commission make advices about cohesion of ideals and worships, about relevance of transcendental elements and, as much as possible, conveying a conception of other similar phenomena. Indeed, religious freedom can’t be a huge umbrella for every kind of spiritual societies, for non scientifically health cares, for profitable magical activities or sorceries of any kind.

As we have seen, the major risk is the one of formulate closed concepts. That is the reason why Portuguese Commission has remarkable pluralistic features. President is nominated by Government at his most plural form (Ministers General Council). Two members are appointed by the Catholic Church. Three others are chosen on settled churches and the other five are designated by Justice Minister as experts.

As an open concept, freedom of religion needs a continuous and hard work for lawyers, even in Europe where we could think that a good level was achieved.

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COMMUNITIES

Dr. Ján JURAN Director of Department of Church Affairs, Ministry of Culture of the Slovak Republic

Churchies and religious societies in the Slovak Republic

The Ministry of Culture of the Slovak Republic ensures, in compliance with

the jurisdictional act, performance of the state administration in the sector of churches and religious societies. It respects them as legal entities “sui generis“, recognises their irreplaceable place in the society and co-operates with them on a partner co-operation basis, whereby it does not intervene with their internal affairs.

In the subject matter field, the Department of Church Affairs of the Ministry of Culture has the following powers and competences:

- to elaborate proposals to generally binding legal regulations governing the position and activity of churches and religious societies,

- to ensure preparation of a draft budget and completion of proposals of churches and religious societies for the state budget,

- to specify financial resources of the state budget, specifically designed for the churches, religious societies, charity and oversee that they are effectively and economically used,

- to ensure procedures for churches and religious societies at clearing of financial relationships with the state budget,

- to elaborate analytical, conceptual and information materials and expert opinions,

- to support geodetic works relating to the fulfilment of the act on reconciliation of some property injustice caused to the churches and religious societies,

- to execute registration of the churches and religious societies and keep records of legal entities deriving their legal entity from the registered churches,

- to create conditions for settlement of the rights of property between the State and the churches and religious societies,

- to co-operate with central bodies of the state administration and partner organisations abroad.

The Department of Church Affairs represents the Director and other 3 employees in the Civil Service. The Department disposes of annual budget cca. 33 mil. € of state grants for remuneration of the clergy and administration of headquarters of registrated churches, religious societies and theirs centrals of charity and diaconies.

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The Ministry of Culture of the Slovak Republic established on January 1,1997 Institute for State-Church Relations, UVSC, deals with interdisciplinary research of relations between the State and churches. By its informational and documentarist, analytic and consulting activities in the field of both traditional and non-traditional religiosity, by its systematic charting the spiritual scene, by its counseling and editorial activities, the Institute intends to contribute to a non-confrontational dialogue and co-operation of the State with churches and religious societies. This Institute consists of 5 employees – academics with annual budget 132 000 €.

In 1990 the legislative body approved several acts and other legal regulations that meant fundamental move in relations between the state and the churches; mainly the churches was excluded from control and supervision of the state. Autonomy of the churches was secured in their internal and external activities. Churches were partially given back their property nationalised after 1945 and religious freedom secured to citizens. On the other hand the system of secured material needs of the churches by the state continued. This moment limited full implementation of the separation of churches from the state. At the ideological level the separation was implemented through non-interference by the state in internal relations of the churches and the state declared independent from ideology or religion.

The Slovak Republic guarantees the freedom of religion by the Article 24 of the Constitution of the Slovak Republic (constitutional Law 460/1992), by the constitutional Law 23/1991 introducing the List of Human Rights and Freedoms, by the Law 308/1991 about the freedom of religious faith and about the status of churches and religious societies. These legal norms regulate the freedom of conscience and of religious faith and guarantee the respecting of these human rights and freedoms. At the same time they are also an expression of the obligatory acceptance of for international commitments and the respect for them. In accordance with the said principles they set fundamental conditions of the state-church relation.

Act No. 308/1991 Coll. on freedom of religious faith and on the position of churches and religious societies as amended defines that the state acknowledges only the churches and religious societies that are registered according to this Act. As of 1 July 2008 in Slovakia there are 18 registered churches and religious societies registered with the Ministry of Culture of the Slovak Republic. The important moment for registration is mainly acquired status of legal identity as well as the right to ask the state for financial benefits for their activities. The church may spend these state financial benefits for remuneration of the clergy, administration of headquarters and apply for for instance subsidy for activities of a church school They are allowed to publicly act under their name; they may acquire and own movable and real property, other property and intangible rights. They administer their affairs independently from state authorities. They are free to define their religious doctrines and ceremonies. They publish without state approval their

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internal regulations; however, these must not be contrary to generally binding regulations. They are entitled to teach and educate their cleric and lay workers in their own schools and other facilities and theological universities. They have full power to establish mainly their bodies, clerical workers and teachers in religion as well as to publish their internal regulations, to establish their own schools, editing and publishing houses, printing houses, purpose aimed facilities, facilities for health and social care services. With no limitation they open and keep contacts with churches, organisations and communities abroad.

Churches and religious societies that in course of the communist era were active under a state approval are considered registered. In Slovakia there were fifteen churches like this. All other new religious movements that are interested in acquiring the status of a registered church must along with administrative requirements prove that at least 20 000 adult persons with permanent residence in the Slovak Republic report to them. The number defined by the Act was fulfilled by the religious society Jehova´s Witnesses registered in 1993, the Church of Jesus Christ of Latter-day Saints in 2006 and the Bahai Community in 2007. Because there were efforts to misuse position and advantages of the registration the Act was reviewed from 1 May 2007. This was the initiative of the parliament members to the unsuccessful effort of the Atheist Church of Non-Believiers that applied for registration. The Act therefore defines that 20 000 members of the church must report to the church and not only sympathising persons as it was before 1 May 2007.

We have to stress that according to legal opinion of the competent state authorities the fundamental human rights and freedoms are equally guaranteed to members of registered and also of non-registered churches and religious societies. The churches and religious societies may freely act with no regard to their registration or non-registration and the state limits their action only by observed legal rules. Because in relatively conservative Slovakia it is significantly complicated to fulfil the requirement of 20 000 members some of these new religious societies were registered with the Ministry of Interior of the Slovak Republic as a civic associations under the Act on Association even if this Act does not refer to association of citizens in the churches. Then these religious societies trying to establish themselves take efforts to become publicly known through generally acknowledged public activities (such as education, culture, peace and other environmental activities) often under a name that is complicated for defining relation of a religious society to a foreign headquarters.

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Churchies and religious societies in the Slovak Republic Membership % 1. Roman Catholic Church in the Slovak Republic 3 708 120 68,931 2. Evangelical Church of the Augsburg Confession in Slovakia 372 858 6,931 3. Greek Catholic Church in the Slovak Republic (Byzantine) 219 831 4,086 4. Reformed Christian Church in Slovakia 109 735 2,04 5. Orthodox Church in Slovakia 50 363 0,936 6. Religious Society of Jehovah's Witnesses in the Slovak Republic 20 630 0,383 7. United Methodist Church, Slovak district 7 347 0,137 8. Christian Corps in Slovakia 6 519 0,121 9. Apostolic Church in Slovakia 3 905 0,073 10. Baptist Union in the Slovak Republic 3 562 0,066 11. Church of the Seventh-day Adventists, Slovak Association 3 428 0,064 12. Brethren Church in the Slovak Republic 3 217 0,06 13. Central Union of Jewish Religious Communities in the Slovak Republic 2 310 0,043 14. Old Catholic Church in Slovakia 1 733 0,032 15. Czechoslovak Hussite Church in Slovakia 1 696 0,032 16. New Apostolic Church in the Slovak Republic * * 17. Church of Jesus Christ of Latter-day Saints in the Slovak Republic * * 18. Bahai Community in the Slovak Republic * * Others (not registered) 6 294 0,117 others and inaccurate assigned catholic churches 2 030 0,0377 Budhism 1 663 0,0309 Islam 1 212 0,0225

others non catholic churches and religious societies 812 0,0151

Hinduism 193 0,0036 Czechoslovak Evangelical Religion 169 0,0031 Unification Church 73 0,0014

The Church of Jesus Christ of Latter-day Saints (The Mormons) 58 0,0011

Religious Society of Czechoslovak Unitarians 43 0,0008 New Apostolic religion 22 0,0004 Scientology 15 0,0003 Unity Brotherians 4 0,0001

Persons with confession 4 521 549 84,052 No confession 697 308 12,962 Unidentified 160 598 2,985

Total

Number of inhabitants of the Slovak Republic 5 379 455 100

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Amended Act No. 308/1991 Coll. (Act no. 394/2000 Coll.) declares equality of churches and grants them the right to conclude agreements with the State. The Basic Treaty between the Slovak Republic and the Holy See (no. 326/2001), which relates to the Roman and Greek Catholic churches, was ratified in December 2001, while the Agreement between the Slovak Republic and Registered Churches and Religious Societies (no. 250/2002), which regulates the status of eleven non-Catholic churches, was approved in April 2002. These agreements suppose other partial agreements to be concluded, e.g. on spiritual service in the army, on religious instruction and education, on asserting the claim of conscience, and on financial support of churches and religious societies. In these days we can see functioning cooperation between churchies and affording facilities from the part of the state on spiritual service in the army (The Treaty between the Slovak Republic and the Holy See on Spiritual Service in the Slovak Armed Forces and Armed Corps (no. 648/2002) and The Agreement between the Slovak Republic and Registered Churches and Religious Societies on Pastoral Service to their Believers in the Slovak Armed Forces and Armed Corps (no. 270/2005) ) and on religious instruction and education in the schools (The Treaty between the Slovak Republic and the Holy See on Catholic education (no. 394/2004) and The Agreement between the Slovak Republic and Registered Churches and Religious Societies regarding Religious Education (no. 395/2004) ).

These agreements were positively accepted also because they clearly declare the mutual position of the state and these churches and also areas of possible cooperation and support.

The issues of financial relations between the State and the churches in our country is still treated by the Law 218/1949 about the economic providing of churches and religious societies by the State in the wording of the Law 16/1990, the Law 522/1992 and the Law 467/2005. The clergymen’s salaries are fully covered by the State in accordance with the Government Decree of the Czech and Slovak Federative Republic 578/1990 in the wording of the Government Decree of the Slovak Republic 299/2007 (the last amendment no. 610/2007) about the regulation of the personal perquisites granted to the clergymen of the churches and religious societies, including the levies to respective funds of employment, of the social, health and retirement benefits remitted to the Churches on the basis of their budgets in a form of regular monthly subsidies according to the limit set by the Exchequer of the Slovak Republic. The financial guarantee of these perquisites by the State is but intended only for registered churches and religious societies upon the condition they ask for it. However, this duty is not required from the churches where the clergymen’s personal perquisites were provided by the State in accordance with the effective legal regulations by December 31, 1989. From the whole number of the 18 churches and religious societies registered by the State four subjects do not use their facultative claim to the subsidies from the national budget: the Christian Corps, the Jehovah’s Witnesses, The Church of the Seventh

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Day’s Adventists, the New Apostolic Church, Church of Jesus Christ of Latter-day Saints and Bahai Community.

All these means are rendered for this sake directly from the expense part of the national budget. The expenses of the operation of the Episcopal offices and the centers of the churches and religious societies are partially covered from the national budget resources. Through the budgetary chapter of the Ministry of Culture of the Slovak Republic financial means of the national budget are also granted for the Slovak Catholic Charity and are used for covering the deficit of the operation of its charity homes. This institution finances the remainder expenses connected with the providing of such an activity from its own resources, mainly from the collections of believers. Subsidies and grants on projects of social and charitable activities are granted from the resources of the Ministry of Labour, Social Affairs and Family of the Slovak Republic, too. In well-founded extraordinary cases the Government of the Slovak Republic also renders ad hoc purpose-built subsidies to churches from its financial reserves through public budget. The legal order of the Slovak Republic does not include any provision that would restrict parents‘ will as to the religious and moral raising of their children according to parents‘ or guardian’s own conviction. Religious education and ethical education are a part of the education provided by primary schools. The running of 245 church schools, the salaries of religion teachers at state schools are financially covered from the public budget resources to full extent, while the theological faculties of the churches are parts of the state universities financed from the budget chapter of the Ministry of Education of the Slovak Republic.

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2003 2004 2005 2006 2007

MAIN CHURCH

2 088 2 149 2 191 2 209 2 242 Priests

TOTAL 4 782 4 894 4 969 5 075 5 039

MAIN CHURCH

9 933 911

10 332 072

14 073 558

14 623 846

15 648 875 contribution to salaries and social insurance of priests (€) TOTAL 15 076

346 15 713

935 21 727

478 22 621

623 24 324 039

MAIN CHURCH

2 741 353

2 684 160

2 774 016

2 465 246

2 614 486 contribution to administration of main offices of churches (€) TOTAL 5 011

153 4 899

721 5 033

426 4 921

463 4 965 843

MAIN CHURCH

2 004 083

2 004 083

2 103 665

2 103 665

2 116 942 contribution to main offices of charity and diaconies (€) TOTAL 2 189

571 2 186

483 2 288

156 2 288

322 2 316 172

MAIN CHURCH

160 185 190 197 191 church schools

TOTAL 201 234 241 247 245

MAIN CHURCH

3 192 3 411 3 153 3 178 2 916 teachers in church schools

TOTAL 3 648 3 922 3 680 3 847 3 614

MAIN CHURCH

2 122 2 092 2 091 2 076 1 974 teachers of religion in public schools (Catechizers) TOTAL 2 520 2 503 2 552 2 470 2 404

MAIN CHURCH

1 204 1 026 984 767 700 students of theology

TOTAL 2 118 2 107 2 108 2 046 1 948

MAIN CHURCH

3 354 3 367 3 494 3 575 3 580 Sacral objects

TOTAL 5 658 5 691 5 724 5 743 5 787

MAIN CHURCH

1 219

511 913 729 868 419 1 406 460 grants for

protection and reconstruction of the sacral monuments (€)

TOTAL 143 564 2 111

664 1 396

136 1 326

661 2 005 743

(MAIN CHURCH = Roman Catholic Church in the Slovak Republic)

438


COMMUNITIES

Drago ČEPAR, PhD Director of the Office of the Government of the Republic of Slovenia for Religious Communities

I. Information about state agency or ministry in your country

competent for churches and religious communities; its competences; number of employees; annual budget.

General information Office of the Government of the Republic of Slovenia for Religious

Communities (the Office) was established as a government office by the Government of the Republic of Slovenia with the Decision Establishing the Government Office of the Republic of Slovenia for Religious Communities1. The Office, on the basis of the Decision amending the Decision Establishing the Government Office of the Republic of Slovenia for Religious Communities2 primarily performs tasks imposed on the empowered state authority by the Religious Freedom Act3 (ZVS), in particular Articles 304 and 32.5 The Office helps

1Official Gazette of the RS, No. 72/93. In quoting the Constitution and acts, the number of the Official Gazette is provided in which the document was published for the first time. 2 Official Gazette of the RS, No. 22/07. 3 Official Gazette of the RS, No. 14/07. 4 Article 30: “(Tasks of the Competent Authority) (1) The Competent Authority shall perform the following tasks:

1. monitor the position of registered churches and other religious communities;

2. provide professional assistance and inform registered churches and other religious communities on regulations, other acts and measures affecting their activities;

3. conduct the procedure for registration and keep the Register of Churches and Other Religious Communities in compliance with Articles 13 to 20 hereof;

4. issue extracts from the Register and data on the state of Register; 5. issue certificates on the legal personality of registered churches and other

religious communities; 6. issue certificates on the legal personality of the Component Parts of

registered churches and other religious communities based on the preliminary certificate of the church or other religious community;

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with its activities to provide high standards of respect for the freedom to profess a religion in private and public life in the Republic of Slovenia. Its contribution to non-discrimination in the area of religion should be especially mentioned.6

Number of employees: 6 (director included).

Annual budget: 2,497,679 EUR (2007)

7. perform payments and the necessary budget planning activities for the

payment of targeted state financial support as determined in Articles 27 and 28 hereof, and conduct the procedure of decision-making as determined in the third paragraph of Article 28 hereof;

8. provide assistance and budget funds in compliance with the previous Article hereof;

9. monitor the implementation of regulations and other acts and measures affecting the activities of churches and other religious communities;

10. participate in drafting of regulations, other acts and measures in the area of activities of churches and other religious communities drafted by the ministries or other national authorities;

11. draft materials and proposals of decisions for decision-making procedure of the Government of the Republic of Slovenia on issues referring to area of activities of churches and other religious communities;

12. organize discussions and meetings with the representatives of registered churches and other religious communities;

13. co-operate with the ministries, other national and local authorities and organizations in solving the open issues of churches and other religious communities;

14. monitor international conferences and meetings in the field of religion and attend them;

15. co-operate with the competent services in other countries; 16. particularly strive to exercise the principle of equal treatment within its

area of work; 17. create the terms and conditions for equal treatment of persons within its

competences regardless of religious belief by raising awareness and monitoring the situation in this field and by regulatory and political measures;

18. perform other tasks determined by laws or implementing regulations. (2) The Competent Authority shall perform the tasks autonomously and in co-operation with the ministries, government offices and expert and scientific institutions or experts in particular fields.” 5 Article 32: “(Authority Monitoring Offences) The Competent Authority shall be competent to monitor the implementation of this Act as a authority monitoring offences as defined in the previous Article hereof.” 6 See items 16 and 17 of paragraph 1 of Article 30 of ZVS.

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II. Legislation related to religious freedom and religious communities accepted after 1990 - list of laws on religious freedom and agreements

between state and religious communities. Constitution and decisions of the Constitutional Court.

The right of an individual to religious freedom and the relationship between the state and religious communities is regulated by the Constitution and law. These are the articles of the Constitution of the Republic of Slovenia7 which explicitly refer to religion and religious communities.

Article 7

The state and religious communities shall be separate. Religious communities shall enjoy equal rights; they shall pursue their activities

freely.

Article 14 (Equality before the Law)

In Slovenia everyone shall be guaranteed equal human rights and fundamental

freedoms irrespective of national origin, race, sex, language, religion, political, or other conviction, material standing, birth, education, social status, disability, or any other personal circumstance.

All are equal before the law.

Article 16 (Temporary Suspension and Restriction of Rights)

Human rights and fundamental freedoms provided by this Constitution may

exceptionally be temporarily suspended or restricted during a war and state of emergency. Human rights and fundamental freedoms may be suspended or restricted only for the duration of the war or state of emergency, but only to the extent required by such circumstances and inasmuch as the measures adopted do not create inequality based solely on race, national origin, sex, language, religion, political, or other conviction, material standing, birth, education, social status, or any other personal circumstance.

The provision of the preceding paragraph does not allow any temporary suspension or restriction of the rights provided by Articles 17, 18, 21, 27, 28, 29 and 41.

7 Official Gazette of the RS, No. 33/91.

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Article 41 (Freedom of Conscience)

Religious and other beliefs may be freely professed in private and public life. No one shall be obliged to declare his religious or other beliefs. Parents have the right to provide their children with a religious and moral

upbringing in accordance with their beliefs. The religious and moral guidance given to children must be appropriate to their age and maturity, and be consistent with their free conscience and religious and other beliefs or convictions.

Article 46

(Right to Conscientious Objection)

Conscientious objection shall be permissible in cases provided by law where this does not limit the rights and freedoms of others.

Article 63

(Prohibition of Incitement to Discrimination and Intolerance and Prohibition of Incitement to Violence and War)

Any incitement to national, racial, religious, or other discrimination, and the

inflaming of national, racial, religious, or other hatred and intolerance are unconstitutional.

Any incitement to violence and war is unconstitutional.

Article 123 (Duty to Participate in the National Defence)

Participation in the national defence is compulsory for citizens within the limits

and in the manner provided by law. Citizens who for their religious, philosophical, or humanitarian convictions are

not willing to perform military duties, must be given the opportunity to participate in the national defence in some other manner.

Decisions of the Constitutional Court of the Republic of Slovenia, which deal

with constitutional rights and freedoms related to religious freedom, are presented in the contribution written by constitutional judge Miroslav Mozetič and Blaž Ivanc. 8

8 They also are reviewed in the article “Freedom of Religion and the Legal Status of Churches and Other Religious Communities in the Slovenian Constitution and the Decisions of the Constitutional Court of the Republic of Slovenia” (Verska svoboda in

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International agreement

On 14 December 2001, the government signed with the Holy See the Agreement between the Republic of Slovenia and the Holy See on Legal Issues, while the National Assembly on 28 January 2004 passed the Act ratifying the Agreement between the Republic of Slovenia and the Holy See on legal issues9. The constitutionality of the agreement was determined by the Constitutional Court between its signing and ratification. Laws

The Religious Freedom Act is the fundamental law regulating the manner of provision and implementation of religious freedom, the legal status of churches and other religious communities, their register, their rights, and conditions and procedures for their registration.

The National Assembly of the Republic of Slovenia passed the act on 2 February 2007. With this act, the government and the parliament fulfilled the requirement of the Constitutional Act Implementing the Constitution of the Republic of Slovenia (1991),10 which stipulates in Article 1 that regulations which are not in compliance with the Constitution should be made compliant with the Constitution (by the end of 1993). ZVS entered into force on 3 March 2007, and has begun to apply in its entirety on 3 June 2007.

The act repeals the previous Legal Status of Religious Communities in the Republic of Slovenia Act11 (hereinafter referred to as: ZPPVS), except for Article 20, which remains applicable. ZPPVS was adopted in 1976 in different social and political circumstances and is now obsolete and deficient, because it does not regulate certain fundamental areas: the register of religious communities; procedures, criteria and conditions for registration and financing.

In the period between 1994 and 2007, three bills aimed at more modern regulation of this area were submitted to the National Assembly by opposition parties. One was not read in the parliament, and two were rejected. In June 1994, the government tasked the Office, at the beginning of its operations, with the drafting of such an act, and in 1998 submitted to the National Assembly a draft of the new Religious Communities Act, which was not read in the National

pravni položaj cerkva in drugih verskih skupnosti v slovenski ustavi in odločbah Ustavnega sodišča Republike Slovenije) by Miha Movrin in the book: Država in vera v Sloveniji (The State and Religion in Slovenia), Urad Vlade Republike Slovenije za verske skupnosti, Drago Čepar, urednik (editor), Ljubljana, 2008 (hereinafter referred to as: “the book”). 9 Official Gazette of the RS, No. 4/04. 10 Official Gazette of the RS, No. 33/91. 11 Official Gazette of the SRS, No. 15/76.

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Assembly.12 A comprehensive study,13 which also contained a new draft bill, was prepared in 2004. The Commission of the Government of the Republic of Slovenia for Solving Open Issues of Religious Communities (the Commission) discussed the bill and confirmed it as an adequate basis for further work in March and September 2004. A general election was held in October, and the Commission appointed by the new government confirmed the supplemented draft in March and June 2005. The government procedure was concluded on 16 February 2006, when the government adopted ZVS.

The solutions provided by ZVS stem from the efforts of a number of consecutive governments and are the result of dialogue with religious communities. The Office has organised three consultation panels on the act and a number of consultation panels indirectly related to it. This is why the act enjoyed great support among religious communities during the entire procedure.14 The public debate on the act was, however, very heated both in parliament and in the media, as indicated by the request of the National Council for a constitutional review of ZVS accepted on 21 March 2007.

In the legal order of the Republic of Slovenia, the legal status of churches and other religious communities and different aspects of religious freedom are also directly regulated by other acts which expressly mention religious communities or protect a certain aspect of freedom of religious belief. Those acts which address generically legal persons, or legal person governed by civil law, should also be mentioned. The project of the Institute for Human Rights Law in 2004 mentions 43

12 More about this topic: Drago Čepar, Administrative regulation of registration and functioning of religious communities, master's degree paper, Ljubljana University, Faculty of Social Sciences, Ljubljana 2005. 13 Šturm, Lovro (et al.) (2004), Project Establishment of expert bases for normative regulation of the area of religious communities in the Republic of Slovenia, 230 pages, headed and edited by Lovro Šturm, Institute for Human Rights Law, Ljubljana, document UVS No. 080/04 – 253, http://www.uvs.gov.si/si/zakonodaja_in_dokumenti/drugi_dokumenti/. The project consists of four documents: 1. A review and legal analysis of the legislation of the Republic of Slovenia in force in the area of legislative regulation of religious communities, authors: Urška Prepeluh, Lovro Šturm, Miha Movrin; 2. Comparative analysis of constitutional provisions and legislation of European countries, authors: Simona Drenik, Lovro Šturm; 3. Relationship between the Church and the state from the aspect of the law of the European Union, author: Simona Drenik; 4. Draft religious freedom and religious communities act with introduction and explanation, authors: Lovro Šturm, Blaž Ivanc, Urška Prepeluh. Consulting experts: Tone Jerovšek, Verica Trstenjak. 14Three out of the 42 religious communities were against the government's proposal at a certain level of public debate, but some of them later changed their opinion. Some 99.6% of those who opted to declare their religious affiliation in the 2002 census declared themselves affiliated to those religious communities which expressed support to the government's proposal, and less than 0.1% to those which were against it.

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such acts;15 the book “The Sacred and the Secular” (Sveto in svetno)16 mentions the 52 most important acts. The list of 74 acts which were in force as of 1 March 2008 and which regulate an aspect of religious freedom or religious community, and acts which address generically legal persons or legal persons governed by civil law, is given here. Not all acts which address generically legal person (labelled by **) are mentioned, but only those included by Prepeluh and Šturm,17 and those which have replaced those acts if they have expired. Acts governing religious freedom and religious communities18 Act about victims of war violence, Official Gazette of the RS, No. 63/1995 Act on International Co-operation in Criminal Matters between the Member States

of the European Union, Official Gazette of the RS, No. 102/2007 Act on patients rights, Official Gazette of the RS, No. 15/2008 Act on Service in the Slovene Army, Official Gazette of the RS, No. 68/2007 Act ratifying the Agreement between the Republic of Slovenia and the Holy Seat

on legal issues, Official Gazette of the RS-MP, No. 4/2004 Act Regulating Cemetery and Burial Services and the Maintenance of Cemeteries,

Official Gazette of the SRS, No. 34/1984 Act Regulating the 2001 Census of Population, Households and Housings in the

Republic of Slovenia, Official Gazette of the RS, No. 66/2000 Act Regulating the Recognition of Marriages Entered into prior to 9 May 1946

whose Validity was Contested according to Former Regulations, Official Gazette of the LRS, No. 16/1949

Act Regulating the Settlement of Liabilities of the Republic of Slovenia with Regard to Pension and Disability Insurance Institute, Official Gazette of the RS, No. 81/2000

Act Regulating the Temporary Ban on Tree Felling in Socially Owned Forests and Temporary Ban on Trade with Socially Owned Real Estate, Official Gazette of the RS, No. 26/1990

Agricultural Reform and Colonisation in the People’s Republic of Slovenia Act, Official Gazette of the SNOS and NVS, No. 62/1945

Aliens Act, RS, No. 61/1999 Animal Protection Act, Official Gazette of the RS, No. 98/1999 15 See Urška Prepeluh, Lovro Šturm, Miha Movrin, A review and legal analysis of the existing legislation of the Republic of Slovenia in the area of legislative regulation of religious communities, Ljubljana 2004, http://www.uvs.gov.si/fileadmin/uvs.gov.si/pageuploads/Zakonodaja/verska_svoboda1.doc. 16 Urška Prepeluh, Lovro Šturm, A review of the existing Slovenian legislative regulation, Lovro Šturm, Simona Drenik, Urška Prepeluh, The Sacred and the Secular, Legal aspects of religious freedom, Mohorjeva družba, Celje 2004, stran 123. 17 Ibidem 18 List is prepared by Davor Lekić and is also published in »the book«.

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Cave Protection Act, Official Gazette of the RS, No. 2/2004 Civil Procedure Act, Official Gazette of the RS, No. 26/1999 Constitution of the Republic of Slovenia, Official Gazette of the RS, No.33I/1991-I Construction Act, Official Gazette of the RS, No. 110/2002 Construction Land Act, Official Gazette of the RS, No. 44/1997 Cooperatives Act, Official Gazette of the RS, No. 13/1992 Copyright and Related Rights Act, Official Gazette of the RS, No. 21/1995 Corporate Income Tax Act, Official Gazette of the RS, No. 117/2006 Criminal Procedure Act, Official Gazette of the RS, No. 63/1994 (70/1994) Cultural Heritage Protection Act, Official Gazette of the RS, No. 16/2008 Defence Act, Official Gazette of the RS, No. 82/1994 Denationalization Act, Official Gazette of the RS, No. 27I/1991-I Elections and Referendum Campaign Act, Official Gazette of the RS, No. 41/2007 Electronic Commerce Market Act, Official Gazette of the RS, No. 61/2006 Elementary School Act, Official Gazette of the RS, No. 12/1996 Employment and Work of Aliens Act, Official Gazette of the RS, No. 66/2000 Employment Relationship Act, Official Gazette of the RS, No. 42/2002 Energy Act, Official Gazette of the RS, No. 79/1999 (8/2000 popr.) Foundations Act, Official Gazette of the RS, No. 60/1995 General Administrative Procedure Act, Official Gazette of the RS, No. 80/1999 **Health Care and Health Insurance Act, Official Gazette of the RS, No. 9/1992 **Health Services Act, Official Gazette of the RS, No. 9/1992 (26/1992) **Holidays and Days off in the Republic of Slovenia Act, Official Gazette of the

RS, No. 26/1991-I Humanitarian Agencies Act, Official Gazette of the RS, No. 98/2003 Implementation of the Principle of Equal Treatment Act, Official Gazette of the

RS, No. 50/2004 Inheritance and Gift Taxation Act, Official Gazette of the RS, No. 117/2006 Inspection Act, Official Gazette of the RS, No. 56/2002 International Development Co-operation of the Republic of Slovenia Act, Official

Gazette of the RS, No. 70/2006 International Protection Act, Official Gazette of the RS, No. 111/2007 **Kindergarten Act, Official Gazette of the RS, No. 12/1996 Legal Status of Religious Communities in the Socialist Republic of Slovenia Act,

Official Gazette of the SRS, No. 15/1976 Military Service Act, Official Gazette of the RS, No. 18/1991 Organization and Financing of Education Act, Official Gazette of the RS, No.

12/1996 (23/1996 popr.) Parental Protection and Family Benefit Act, Official Gazette of the RS, No.

97/2001 Penal Code of the Republic of Slovenia, Official Gazette of the RS, No. 63/1994

(70/1994) Pension and Disability Insurance Act, Official Gazette of the RS, No. 106/1999

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Personal Data Protection Act, Official Gazette of the RS, No. 86/2004 Personal Income Tax Act, Official Gazette of the RS, No. 117/2006 Political Parties Act, Official Gazette of the RS, No. 62/1994 Prevention of Money Laundering and Terrorist Financing Act, Official Gazette of

the RS, No. 60/2007 Protection of Competition Act, Official Gazette of the RS, No. 18/1993 Protection of Documents and Archives and Archival Institutions Act, Official

Gazette of the RS, No. 30/2006 Public Gatherings Act, Official Gazette of the RS, No. 59/2002 Public Media Act, Official Gazette of the RS, No. 35/2001 Radiotelevizija Slovenija Act, Official Gazette of the RS, No. 96/2005 Red Cross of Slovenia Act Official Gazette of the RS, No. 7/1993 Redressing of Injustices Act, Official Gazette of the RS, No. 59/1996 Register of Deaths, Births and Marriages Act, Official Gazette of the RS, No.

37/2003 Relations between the Republic of Slovenia and Slovenians abroad Act, Official

Gazette of the RS, No. 43/2006 Religious Freedom Act, Official Gazette of the RS, No. 14/2007 Return of Unlawfully Removed Cultural Heritage Objects Act, Official Gazette of

the RS, No. 126/2003 Secondment of Personnel to International Civilian Missions and International

Organizations Act, Official Gazette of the RS, No. 20/2006 Social Security Act, Official Gazette of the RS, No. 54/1992 (56/1992) Social Security Contributions Act, Official Gazette of the RS, No. 5/1996 Tax Procedure Act, Official Gazette of the RS, No. 117/2006 Temporary Protection of Displaced Persons Act, Official Gazette of the RS, No.

65/2005 The Promotion of Tourism Development Act, Official Gazette of the RS, No.

2/2004 The Protection of Public Order Act, Official Gazette of the RS, No. 70/2006 The Societies Act, Official Gazette of the RS, No. 61/2006 Value Added Tax Act, Official Gazette of the RS, No. 117/2006 War Grave Sites Act, Official Gazette of the RS, No. 65/2003

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Government Agreements

A number of agreements with churches and other religious communities were signed in the period between the adoption of the Constitution in 1991 and August 2008.

On 25 January 2000, the Government of the Republic of Slovenia and the Evangelical Church in the Republic of Slovenia19 signed the Agreement on the Legal Status of the Evangelical Church in the Republic of Slovenia; on 21 September 2000 with the Slovenian Bishops' Conference, the Agreement between the Slovenian Bishops' Conference and the Government of the Republic of Slovenia on Spiritual Care for Military Persons in the Slovenian Army; and on 20 October 2000 with the Evangelical Church in the Republic of Slovenia, the Agreement between the Evangelical Church in the Republic of Slovenia and the Government of the Republic of Slovenia on Spiritual Care for Military Persons in the Slovenian Army.

On 17 March 2004, the government signed with the Pentecostal Church in the Republic of Slovenia the Agreement on Legal Status of the Pentecostal Church in the Republic of Slovenia; on 9 July 2004 with the Serbian Orthodox Church Metropolitanate of Zagreb and Ljubljana the Agreement on Legal Status of the Serbian Orthodox Church; on 9 July 2007, with the Islamic Community in the Republic of Slovenia the Agreement on the Legal Status of the Islamic Community in the Republic of Slovenia; and on 4 July 2008 with the Buddhist Congregation Dharmaling the Agreement on the Legal Status of the Buddhist Congregation Dharmaling.

The Agreement with the Islamic Community in the Republic of Slovenia, according to the Personal Representative of the Chairman-in-Office of the OSCE on Combating Intolerance and Discrimination against Muslims, can serve in Europe as an example of good practice, because Slovenia is among the first EU members to sign such an agreement. III. Government's plans for changing legislation in this field (drafts of

acts).

A draft of the International Agreement between the Republic of Slovenia and the Holy See on Religious Spiritual Care in the Armed Forces, Police and Prisons has been prepared at the ministerial level, however, the government has not yet formally discussed it.

The Ministry of Health is preparing the Rules on the Organisation and Provision of Religious Spiritual Care in Hospitals and Other Healthcare Providers.

19 Names of churches and other religious communities used at the moment of the signing of the agreements.

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programmes.

There is no religious education in public schools in Slovenia. Religious communities can establish education institutions, residence halls for

pupils and students and other similar institutions, and in them freely perform educational activities in line with their own statutes in accordance with the constitutional and legal order of the Republic of Slovenia. The state co-finances the activities of such (private) kindergartens and schools generally by covering 85% of salaries and material costs of the programme in a comparable public institute, if the mentioned institutes of religious communities have been established in accordance with the law and perform a publicly verified programme. However, the state covers 100% of salaries and material costs for certain schools which were established early enough.

The only higher education institution established by a religious community in the Republic of Slovenia is the Faculty of Theology, which is also a member of the University of Ljubljana and has a branch in Maribor. As a part of the national university, it was established with the establishment of the University of Ljubljana in 1919, and was in 1949 eliminated from the university with an act, but was still recognised. In 1952, the faculty lost this recognition. It regained it in 1991 after democratic changes and once again became a member of the University of Ljubljana in 1992. In the 2007/08 academic year, there were 835 (728 in the year before) students, which is 0.8% of the total number of students (99,021) enrolled in all higher education institutions. Pedagogical work and material costs are financed 100% from public finances from the budget of the University of Ljubljana.

Four grammar schools in Slovenia have been established by a religious community, the Catholic Church, and had 1,748 students in the 2007/08 academic year, which is 1.9% of the total number of students enrolled in secondary schools in Slovenia (91,554). The state finances 100% of salaries and material costs for three of these four schools. In public secondary schools, these two items amount to approximately 87% of the total costs.

Secondary school students acquire their knowledge of religions primarily through subjects such as history, geography, sociology, philosophy, psychology and Slovenian language. In the textbooks for the mentioned subjects, religions and their sacred texts are introduced. The subject Religion and Culture has been taught in the four Catholic grammar schools for a number of years. A special textbook with a special title has been written for each grade. The textbooks present the history of world religions, major existing religions and their sacred texts.

In 2007, the Catholic Church established the first Catholic primary school, the Alojzij Šuštar primary school in the St. Stanislav Institute, in which classes will

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begin in September 2008; 85% of salaries and material costs will be financed by the state. Its particularity is that religious education is a mandatory subject. In the first two trienniums the subject is called Comprehension of Religion, and in the last triennium it is called Religion and Culture. The subject is mandatory throughout all nine grades. As part of the expanded programme, pupils have the opportunity to attend catechesis which usually takes place within Catholic parishes. In such catechesis, the school will use the same textbooks and guidelines as the parishes do.

In public elementary schools, the majority of content related to religious education is included in the subject Religions and Ethics, which is a mandatory optional subject (which means that every school is obliged to offer it as an optional subject, while its realisation depends on the number of applications). If there are enough students who apply for the subject, it is taught in the 7th, 8th and 9th grade, once a week. In the 2006/07 school year, the optional subject Religions and Ethics was taught in 65 out of 447 primary schools and was attended by 1,774 pupils. Forty primary schools taught the subject Religions and Ethics in one of the three classes of the last triennium, 18 primary schools in two of the three classes, and in 7 primary schools in all three classes. Religious content is also learnt in mandatory subjects, such as Slovenian language, history, civic education and ethics, geography, fine arts and foreign languages.

At the end of 2007 there were 336 nursery schools in Slovenia, of which 20 were private, the majority of the latter being Catholic.20


and donators; legislation which determines taxation of religious communities and donations.

Registered churches and other religious communities, as well as their

component parts which are legal persons, have to be entered in the register of taxpayers.21 The Corporate Income Tax Act22 stipulates that a religious community is also a person liable to corporate income tax, but taxable persons such as, for example, an association, religious community, or a chamber, do not pay the tax if it is established in accordance with a special act for pursuing a non-profit activity, and if it actually operates in accordance with the purpose of its establishment and operation.23

20 The list is available on the website: https://sava.mss.edus.si/webregistri/SeznamVrtci.aspx. 21 See Article 42 Tax Administration Act (Official Gazette of the RS, No. 1/07). 22 Official Gazette of the RS, No. 117/06. 23 Irrespective of the aforementioned, even such taxable persons are obliged to pay the tax on income from a profitable activity. Churches and other religious communities, as well as

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The taxation of religious employees is carried out under a special system in accordance with a governmental decree.24

Religious communities are exempt from paying compensation for the use of land sites for buildings which religious communities use to pursue their activities.25

VI. Experiences with implementing and executing legislation (list of

registered religious communities, state financial support for activities of churches and religious communities).

The following table represents a list of all 43 churches and other religious

communities from the Register of churches and other religious communities with their year of registration - there were 15 churches and other religious communities by 1990, then an additional 16 by 2000, and 12 more after 2000. They are legal persons governed by private law. Their component parts also are entitled to acquire their own legal personality, but a comprehensive list of them is not available. Churches and other religious communities registered in the Republic of Slovenia.26 No. NAME

ADRESS OF THE SEAT Year of entry

in the list of religious communities

1 The Catholic Church Ljubljana, Ciril Metodov trg 4

1976

2 Evangelical Church in the Republic of Slovenia

Murska Sobota, Slovenska ulica 15

1976

3 Jewish Community of Slovenia - Jewish Community of Ljubljana

Ljubljana, Tržaška cesta 2 1976

4 Union of Baptist Churches in the Republic of Slovenia

Celje, Janševa ulica 1 1976

5 Serbian Orthodox Church Metropolitanate of Zagreb and Ljubljana

Ljubljana, Gruberjevo nabrežje 20

1976

6 Islamic Community in the Republic of Slovenia

Ljubljana, Proletarska cesta 4

1976

7 The Pentecostal Church in the Novo mesto, Trdinova ulica 1976

their component parts which are legal persons, are obliged just as every other legal person to annually submit a tax account on the corporate income tax. 24 Income of religious employees is determined in accordance with the Decree determining revenues of the clergy from their relationship with the religious community (Official Gazette of the RS, No. 136/06) 25 Article 59 of the Construction Land Act (Official Gazette of the SRS, No. 18/84). 26 List is prepared by Emilija Snoj and also is published in »the book«.

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Republic of Slovenia 27 8

Seventh-day Adventist Church Ljubljana, Njegoševa cesta 15

1976

9 Jehovah's Witnesses – Christian Religious Community

Kamnik, Groharjeva ulica 22

1976

10 Christian Brethren Assembly Mali vrh 1a 1981 11

The New Apostolic Church in Slovenia

Maribor, Glavni trg 3 1982

12

The Free Church in the Republic of Slovenia

Zasip, Stagne 18 1983

13

Society for Krishna Consciousness Ljubljana, Žibertova ulica 27

1983

14

Liberal Catholic Church Ljubljana, Linhartova cesta 64

1984

15

LECTORIUM ROSICRUCIANUM The International School of the Golden Rosycross

Ljubljana, Celovška cesta 280

1987

16

The Church of Jesus Christ of Latter-day Saints

Ljubljana, Celovška cesta 43

1991

17 Universal Life Ljubljana, Celovška cesta 87

1991

18

Unification Church Škofljica, Dolenjska cesta 419

1991

19 Baha'i Community of Slovenia Ljubljana, Bohinjčeva ulica 8

1992

20 The Ordo Templi Orientis Ljubljana, Kotnikova ulica 21

1992

21

Reformation Christian Church of Slovenia

Motvarjevci 1993

22

The Shri Radhakunda-Community for Shri Gauranga Consciousness

Labor 46 1994

23

Macedonian Orthodox Community in the Republic of Slovenia "Saint Clement of Ohrid"

Ljubljana, Hruševska 43d 1994

24 BUDDHA DHARMA - Union of the Buddhists in the Republic of Slovenia

Ptuj, Hajdoše 68 1995

25

Church of Scientology Koper, Ulica za gradom 21 1995

26 The Church of Jezus Christ "Living Water"

Portorož, Pot k izviru 23 1995

27 New Generation Christian Center Ljubljana, Ulica Franca Mlakarja 3

1995

28

The Evangelical Baptist Community Celje, Pohorska ulica 6 1997

29 International Christian Fellowship Log pri Brezovici, Cesta v 1997

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452

Lipovce 20 30 The White Gnostic Church Poljšica pri Podnartu 8

1999

31

Sacrament of Transition Maribor, Ulica bratov Greifov 14

1999

32 Christian Church Kalvarija Celje, Hribarjeva 8 2003 33 Buddhist Congregation Dharmaling Ljubljana, Melikova ulica 1 2003 34 Hindu Religious Community in

Slovenia Ljubljana, Derčeva ulica 41 2003

35 Christian Outreach Center Ljubljana Ljubljana, Ob železnici 18

2003

36

The Universal Religious Community of the Rising Sun

Hočko Pohorje 64 2003

37

Raelian Religion in Slovenia Ljubljana, Dunajska cesta 106

2004

38 »Church of New Covenant« - Slovenia

Verd, Cesta na Barju 7 2004

39

The Holy Church Annasann Celje, Novi trg 16 2004

40

The Reformed Evangelical Church Ljubljana, Polje cesta VI 10 2004

41 The Muslim Community of Slovenia Ljubljana, Pražakova ulica 14

2006

42 New Life Church Murska Sobota, Industrijska ulica 2

2006

43

Orisha Spiritual Community - Energies of the Nature

Podčetrtek, Trška cesta 91 2007

Statistical Data on Religions and Religious Affiliation.27

The Constitution of the Republic of Slovenia in Article 41 stipulates that no one shall be obliged to declare their religious or other beliefs, so there is no precise insight into the religious structure of citizens or residents of the Republic of Slovenia. However, there exists data from population censuses and the results of social surveys. In population censuses which covered all residents, an answer to this question was not mandatory, but the majority of residents answered the question. The tables below provide data on regular population censuses from 1991 and 2002, which covered all residents, and the results of social surveys on smaller statistical samples, which can be generalised for the whole Slovenia with a certain amount of reliability.

27 Prepared by Drago Čepar with the help of the Statistical Office of the Republic of Slovenia and the Public Opinion and Mass Communication Research Centre and also published in »the book«.

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Prebivalstvo po veroizpovedi, Slovenija, popisa 1991 in 2002 Population by religion, Slovenia, Census 1991 and 200228 Skupaj Total Veroizpoved Religion 19911) 2002 SKUPAJ 1,913,355 1,964,036 TOTAL Katoliška 1,369,873 1,135,626 Catholic Evangeličanska 14,101 14,736 Evangelical

Druge protestantske 1,890 1,399 Other

Protestant Pravoslavna 46,320 45,908 Orthodox Druge kršćanske 2,410 1,877 Other Christian Islamska 29,361 47,488 Islam Judovska 199 99 Jewish Orientalske 478 1,026 Oriental Druge veroizpovedi 269 558 Other religion Agnostiki … 271 Agnostic Je vernik, vendar ne pripada 3,929 68,714

Believer but belongs

nobeni veroizpovedi to no religion

Ni vernik, ateist 84,656 199,264 Unbeliever,

atheist

Ni želel odgovoriti 81,302 307,973 Did not want to

reply Neznano 278,567 139,097 Unknown Strukturni deleži (%) / Proportions (%) SKUPAJ 100 100 TOTAL Katoliška 71.6 57.8 Catholic Evangeličanska 0.7 0.8 Evangelical Druge protestantske 0.1 0.1 Other

28 In order to preserve the original form, the table is published in Slovenian and English language.

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Protestant Pravoslavna 2.4 2.3 Orthodox Druge kršćanske 0.1 0.1 Other Christian Islamska 1.5 2.4 Islam Judovska 0.0 0.0 Jewish Orientalske 0.0 0.1 Oriental Druge veroizpovedi 0.0 0.0 Other religion Agnostiki … 0.0 Agnostic Je vernik, vendar ne pripada 0.2 3.5

Believer but belongs

nobeni veroizpovedi to no religion

Ni vernik, ateist 4.4 10.1 Unbeliever,

atheist

Ni želel odgovoriti 4.2 15.7 Did not want to

reply Neznano 14.6 7.1 Unknown 1) Podatki preračunani po metodologiji Popisa 2002. / Data recalculated according to the 2002 Census methodology. Source: Statistical data, no. 92/2003, Statistical Office of the Republic of Slovenia. Source: Rapid Reports, No 92/2003, Statistical Office of the Republic of Slovenia.

Since 1968, the Public Opinion and Mass Communication Research Centre at

the Ljubljana Faculty of Social Sciences has been systematically carrying out the project "Slovenian Public Opinion"29 the widest longitudinal empirical social survey in Slovenia, based on representative samples of adult citizens of Slovenia. The following table, which is a part of SJM 2007/2 survey,30 summarises the results between 1992 and 2007.31

29 The project is labelled for individual years with the abbreviation SJM and the year of implementation, for example SJM2007 or SJM07. A number of surveys have been carried out every year. Indexes indicated by the year of survey present the serial number of the survey in that year. Merged results of the third and fourth survey are displayed for 2003. 30 See SJM 2007/2, Slovenian Public Opinion, Review and comparison of year-on-year measurements, University of Ljubljana, Faculty of Social Sciences – Institute for Social Sciences, Public Opinion and Mass Communication Research Centre, Ljubljana, December 2007. 31 More data on the survey and researchers is available on the website: www.cjm.si.

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Which religious community do you belong to? SJM033+4 SJM052 SJM062 SJM072

1 - Roman Catholic 68.9 70.3 64.5 66.3 2 - Evangelical 1.0 1.9 2.0 1.8 3 - Orthodox 2.4 1.8 2.2 1.7 4 - Islamic 1.5 1.4 1.2 1.9 5 - other Christian religious

community 0.4 0.8 0.8

0.3 6 - other non-Christian

religious community 0.1 0.2 0.1

0.1 7 - no religious community 23.4 20.2 22.3 18.3 9 - do not know/not able to

answer 2.3 3.5 6.9

9.6 Previous measurements:

SJM

922

SJM

931

SJM

941

SJM

951

SJM

961

SJM 971

SJM 981

SJM 994

SJM

001

SJM 012

SJM 021

SJM 031

1 - 75.0

74.0

79.0

75.1

70.2 69.3 70.8 72.4 72.1 68.7 64.1 67.3

2 - 1.5 1.9 0.7 1.2 1.1 1.3 1.4 0.7 1.1 0.8 2.1 0.7 3 - 3.1 1.2 2.7 1.6 1.7 1.1 1.4 1.7 2.7 1.6 2.0 2.2 4 - 2.0 1.6 1.6 1.3 0.5 1.7 0.7 1.1 2.1 0.5 1.1 1.2 5 - 0.5 1.4 0.4 0.6 0.9 1.1 0.7 1.3 1.4 1.5 0.4 0.9 6 - 0.2 0.0 0.1 0.1 0.1 0.1 0.2 0.3 0.0 0.0 0.0 0.4 7 -

15.4 15.

6 14.

1 17.

7 19.

7 20.2 23.5 16.7 17.7 23.9 26.0 22.9 9 - 2.2 4.2 1.5 2.5 5.9 5.1 1.3 5.8 3.0 3.0 4.2 4.4 State financial support for activities of churches and religious communities.

Registered churches and other religious communities are mostly financed by donations and other contributions made by natural and legal persons and from their other property, as well as by the contributions of international religious organisations whose members they are. The state may provide material support to registered churches and other religious communities because of their general benefit.32

Below we consider the funds, which the state transfers to churches and other religious communities. It does not include funds allocated by the state to legal persons established by religious communities (e.g. schools), or funds received by members of churches and other religious communities as personal income, if employed as public servants in state institutions.

Registered churches and other religious communities may, under the conditions provided by ZVS, apply on the behalf of their religious employees (priests, monks

32 ZVS, Article 29.

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and certain lay persons) to obtain the right to the targeted state financial support from the national budget to cover social security contributions. State support stands at 21.86% of the basis, which amounts to 60% of the average salary. In order to acquire health and pension insurance, religious employees must cover a certain amount themselves, which is somewhat lower than the amount contributed by the state. It should be mentioned that pension insurance for religious employees is mandatory under the law.33 The process of providing the right to paid contributions takes into account a reasonable proportion between the number of religious employees and the number of members of the registered church or other religious community. This requirement is fulfilled if the proportion of at least 1,000 members of registered church or religious community per one religious employee is established.

The total amount of support in 2007 stood at EUR 2,240,344 (in 2006 at EUR 1,413,831). In February 2008, it was paid to 1,143 Adventist, Catholic, Evangelical, Muslim, Orthodox and Pentecostal religious employees.34

In this way, this targeted support has been paid in accordance with ZVS since 2007, but this is not a new form of support in terms of content. The state has been paying support for the coverage of contributions for social security of priests and monks in varying amounts not only since Slovenia's independence in 1991, but also for a few decades under the former Yugoslavia.

Paragraph 1 of Article 20 of ZPPVS stipulates that that the state may provide financial support to religious communities. The Office earmarks symbolic funds for this purpose. In 2007, the Office disbursed a total of EUR 37,600 (and EUR 27,750 in 2006) in such support.

Religious communities as legal persons governed by private law also compete for other funds from the national budget for the implementation of specific programmes, in particular in the social area, and programmes and projects on the protection of mobile and immobile cultural heritage. The Ministry of Culture has so far co-financed the activities of churches through tenders for monument-protection. In 2007 the amount of 1,970,528 EUR was allocated to all churches and other religious communities and other owners of sacral cultural heritage. Under an agreement signed by the minister of culture and the president of the Slovenian Bishops' Conference, the activity of archdiocesan archives in Ljubljana and Maribor and the diocesan archive in Koper is co-financed at a 70% rate.35 In 2007 the amount of 143,752 EUR was disbursed under this item. 33 Pension and Disability Insurance Act (Official Gazette of the RS, No. 106/99) stipulates in Article 15 that persons whose occupation of a religious employee is their only or main profession in the Republic of Slovenia should be mandatory insured. 34 A definition of religious official is provided in Article 7 of ZVS. 35 Protection of Documents and Archives and Archival Institutions Act (Official Gazette of the RS, No. 30/06) stipulates in Article 52 that: (1) Archive material of the Roman Catholic Church is selected from the church’s documented material in accordance with its regulations and has characteristics of archive material under this Act. (2) The ministry

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Certain religious communities have charity organisations, which in obtaining their funds are equal to other humanitarian organisations.


There is no church tax in Slovenia.


to churches (if available). The Personal Income Tax Act36 offers taxpayers the right to allocate up to 0.5%

of their personal income tax to financing general public benefits, political parties, representative trade unions and also churches and other religious communities. The list of approximately 3,700 parties entitled to donations under this act issued on 17 July 200837 included 51 churches and other religious communities and their component parts. According to preliminary statistics published by the Statistical Office of the Republic of Slovenia on 26 May 2008, a total of 210,840 (20.8%) taxpayers made use of this donation possibility. Of the total 246,755 donations, 18,887 (7.66%) were made to churches and other religious communities and their component parts. This number does not include Slovenska Karitas, which is actually part of the Catholic Church, but is listed as a charity organisation. Slovenska Karitas held first place both in the number of donations and the total amount. If one adds the 9,448 (3.83%) donations earmarked to Karitas, then the total number of donations to all churches, religious communities and their component parts comes to 28,335 (11.49%). The total value of donations in 2007 was EUR 2,664,964. Churches and other religious communities and their component parts received EUR 153,174 (5.7% of the total value of donations) in 2007, excluding Slovenska Karitas, which received EUR 103,673 (3.9%). The total figure for donations to religious communities when Slovenska Karitas is included is EUR 256,847 (9.6%). The 2007 budget revision stated that personal income tax collection would total EUR 891,626,369, with total donations representing 0.3% of total personal income tax collected.

responsible for archives, in agreement with the Slovenian Bishops’ Conference, determines individual conditions for the pursuit of archiving activity and agreed funds for the pursuit of archiving activity of the Roman Catholic Church. 36 Official Gazette of the RS, No. 117/2006. 37 Official Gazette of the RS, No. 77/2008.

458

STATE-RELIGION RELATIONS IN SPAIN: LEGAL AND CONSTITUTIONAL FRAMEWORK

By Juan FERREIRO,

Deputy Director of Religious Affairs at the Ministry of Justice and Professor of Law in the University of A Coruña

1. Introduction 2. Constitutional Model of Relations between the State and Religious Faiths A) The Principle of Secularism or Non-denominationalism of the State: I) The Separation of Faith and State. II) The Neutrality of the State B) The principle of Cooperation 3. Mandate of Cooperation in the LOLR (Basicc Law on Religious Freedom)

1. Introduction

In order to understand the legal situation of religious faiths in Spain, it is

necessary, first of all, to start with the principles, which according to the Spanish Constitution (Constitución Española, referred to as CE) of 1978, must preside over the relationship between public powers and the religious phenomenon: the principle of secularism or non-denominationalism and the principle of cooperation, both of which are found in article 16.3 of the Magna Carta.

This basic framework, grounded in the Constitution, was only developed a year after the introduction of the Basic Law on Religious Freedom (Ley Orgánica de Libertad Religiosa – which, from here on, will be referred to as the LOLR, its abbreviated form in Spanish)1. This regulation was the first basic law born out of democracy, which developed a fundamental right. This law marked out, among other things, the path that the mandate of cooperation imposed on to public powers by the Constitution was going to take: the signing of Agreements of Cooperation with those registered faiths, which by the very nature of their contexts and their number of followers would have reached well-established support in Spain.

Even though the Agreements with the Catholic Church had been signed more

than a year before the introduction of the LOLR (and 5 days after the Magna Carta came into effect), twelve years passed before it was possible to uphold what it established and the State could sign the Agreements with the three non-Catholic denominations which had a well-established support in Spain: Judaism, Evangelism and Islam.

1Law 7/1980 of 5th July of Religious Freedom (BOE number 177, 24th July)

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These agreements, as established by the LOLR, were validated by the corresponding ordinary laws approved by the General Courts in 1992, as we will see further on.

Since then, the different issues quoted in its articles have been developed by diverse regulations at different levels. Rules that, despite having been approved by Legislative or Executive Powers in the area of their normative competency, were developed on the basis of mutual understanding with the different denominations (of a so-called “pacting nature”) or at least took into account their opinions.

One of the Government’s objectives in its recently finalised term in office has been the development of Cooperation Agreements with the three non-catholic religions with a well-established support, so that the proclaimed rights may be real and effective and, following that same line of action, the obstacles, which opposed the complete realisation of religious freedom and equality, may be removed, as proclaimed and protected by the Magna Carta.

In the next section we will, therefore, refer to the constitutional framework within which it is deemed necessary to develop relations between the State (in its three realms: executive, legislative and judicial) and religious groups, that is the framework which must inspire the performance of legislators, civil servants and judges before that which is sacred.

2. Constitutional Model of Relations between the State and Religious

Denominations

The Magna Carta establishes a concrete model of relationship between the State and religious denominations. After recognizing that the ownership of the fundamental right to religious freedom corresponds to individuals and faiths2 and after prohibiting forced declarations of personal beliefs3, article 16 establishes that the actions of public powers in this area must be guided by two principles, which have a natural tendency to contradict themselves, but, due to the constitutional imperative, are forced into cohabitation: the principle of Secularism or Non-denominationalism of the State and the principle of cooperation.

2 Art. 16.1 CE: 1. “The freedom of ideology, religion and worship of individuals and communities will be guaranteed. The only limits to its manifestations are those necessary for the maintanence of public order which is protected by the law”. “These rights [religious freedom and equality], originally conceived as the individual rights of citizens, also reach, by derivation, those communities and denominations in which they are integrated as the communal performance of its religious aims, without the need for previous authorisation, nor its registration in a public register.” (Presentation of Motives in the Spanish State’s Agreement of Cooperation with the Islamic Commission in Spain) 3 Art. 16.2. CE: “No one can be forced to declare his/ her ideology, religion or beliefs”.

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2.A) The Principle of Secularism or Non-Confessional State

The following is contained in the first paragraph of article 16.3: “No religion shall have a State character”.

The formula established in the Constitutional draft was more convincing: “The State is non-confessional”. However, that expression did not prosper. Perhaps because it was too reminiscent of what had been coined in the Second Republic’s Constitution of 1932, affirming in article 3: “The State has no official religion”. 4

The formula adopted in the Constitution of 1978 can be interpreted as a declaration of non-denominationalism or secularism, in a certainly shy manner for two reasons. Firstly, because the aforementioned declaration is not included in the Preliminary Title, where it would serve a better function as it is the part of the Magna Carta where, in principle, the ontological facets of a State have to be expressed. Secondly, because the sentence avoids any specific reference to the State. As such, the word “State”, whose way of being in the face of the religious is being described, not only does not stand in the corresponding place relative to the subject – as it should presumably do so –, but it disappears from the sentence.

Perhaps that shyness is only the result of the Constituent Power’s attempt to find a middle ground between the opinions of those who struggled to maintain, in an underhand manner, the denominational character of the State and those who fighting for a strict secularism wanted all mention to the Catholic Church to disappear from the Constitutional text.

Taking into account that some principles are difficult to reconcile (it is known that the absolute triumph of freedom can distort equality), the Constituent had perhaps decided to adapt the essence of secularism to the demands of cooperation, in order to avoid traumatic breaks and preserve social peace (the memory of the end of the Second Republic seemed to recommend it).

However, cooperation, which at that point played the role of toning down secularism, would reveal itself in the future with what was then an unexpected virtuality: the policies developed by cooperation in religious affairs have turned out to be an effective instrument to contribute to securing the integration of immigrants in Spanish society. Evidently, when the Constitution was approved, nobody had envisaged the avalanche of immigration which was about to flow into our country, mainly after 2000.

Nonetheless, in spite of its shyness or temperance, the constitutional expression (“No religion shall have a State character”) perfectly reflects the secularism or non-confessionalism of the State. A concept sustained by two pillars: the separation between both institutions and the neutrality of public powers in religious affairs. In the next section we will see the essential features of:

4 FERREIRO GALGUERA, J.: Relaciones Iglesia-Estado en la II República Española Ed. Atelier, Barcelona 2005, pages 62 y ss.

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I. The Separation of Faith from the State

The basic idea encapsulated in this principle is that the religious denominations

forming part of society and public powers (in its three-dimensional state: central, autonomous and municipal) are independent and autonomous entities.

A first consequence derives from this: the principle of no interference in both directions. That is, of the State in the realm of faith and of religious denominations in the realm of the State.

In relation to the first aspect, the Constitution prohibits State intervention in the realm of religious faith. In other words, public powers cannot interfere in the internal orbit of Churches, who organise themselves freely.

As the Constitutional Court has reiterated, public powers must avoid any type of confusion between state and religious functions.

This distortion would come about, for example, if the State intervened in the internal organisation of the Catholic Church or of Islam or even Spanish Protestantism.

However, it is certainly true, that public powers, in virtue of the principle of cooperation (as we will explain further on), will be able to advise denominations at their request and regarding issues they deem convenient. However, it would be necessary to avoid, at any rate, the temptation of falling into paternalist attitudes, least of, interventionist attitudes5.

The inverse consequence of the principle of no intervention is that denominations (or their worship ministers) cannot interfere in the realm of the State in virtue of its denominational character. It is true that a worship minister has the same rights as any other citizen to participate in public affairs, however, that participation may never take place in the person’s capacity as a worship minister, only as an ordinary citizen6.

Obviously, seats are no longer reserved in Parliament for the high representatives of any religion, which had been the case during Franco’s regime regarding bishops. This would otherwise go against the separation of the Church and the State and would therefore destroy the principle of non-confessionalism and secularism. 5 That does not imply that the State diminishes in its function to watch over current legislation. In this way, if the Federation of a denomination undertakes a summons of an ordinary assembly or the drawing up of statutes and one of those acts is undertaken in clear violation of the current legislation, the State, be it through Executive Powers or as a last resort, through the tribunals, must invigilate the performance of the legal order. 6 In the same way as an imam, a priest or a rabbi may become a civil servant, like any citizen, if they pass the relevant public examinations, inspired by the constitutional principles of equality, merit and capacity.

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II. The Neutrality of the States faced with the Religious factor

The State is neutral in the face of the religious phenomenon. That implies that

the Right, not only to profess, but simply to value different religious creeds, corresponds to individuals and communities, not to public powers.

The State is therefore, following the spirit of the the Constitutional Court, radically incompetent in front of an act of faith, and therefore not able to value its legitimacy7.

For this reason, the term “sect”, with its negative connotations, is not a legal term but rather, a sociological one. The State cannot differentiate between the religious heterodoxy and orthodoxy of a specific group. Religious communities are, for the authorities, those which consider themselves as such and who register themselves with the Ministry of Justice’s Register of Religious Entities (referred to hereafter as the RER, its abbreviated form in Spanish), once verified by means of stating8 and not of rating, that they adhere to the requisites imposed by the current legislation9.

When a religious group is registered in the RER, the legislation currently in force offers a double filter, constitutional and legislative, which must not be applied in a preventive way.

Regarding the Constitution, article 22.2 proclaims that those associations (of any nature, including religious ones) pursuing results or using means typified as criminal will be deemed illegal, and will therefore, not only be prevented from registering, but may also be prosecuted.

On its part the LOLR establishes in article 3.1 there are two limits to the practice of religious freedom:

- the fundamental rights of others - public order expressed in its triple dimension: security, health and public

morality.

7 “The articulation of a Register (…) does not habiliate the State to undertake an acitivity of control to determine the legitimacy of religious beliefs (…) but only to verify, deriving to that end a mere act of stating and not rating, that the applicant group is not one of those entities excluded by article 3.2 of the LOLR, and that the actitivities and behaviours developed for its practice do not threaten the rights of others in the exercise of their fundamental freedoms and rights, nor do they threaten the security, health and morality of the public, as elements that enshrine the public order protected by the law in a democratic society, which are referred to in article 16.1 CE” (STC 46/2001 FJ 8º) 8 Note of the Translator: the Spanish concept of “constatación” has been translated, in this context, by “stating”; and the Spanish concept of “calificación” by “rating”. 9 Royal Decree 142/1981, 9th January, on the organisation and function of the Register of Religious Entibies [Registro de Entidades Religiosas, RER] (BOE number 27, 31st January).

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The controversial section 2 in article 3 establishes that activities, aims and

entities related to the study and the experimentation of psychic or parapsychological phenomena or to the transmission of humananistic or spiritual values or analogue ends not in accord with the religious will not fall under the protection of the LOLR and will therefore not be admitted to register with the RER.

An emblematic ruling of the Constitutional Court (STC 46/2001) conceives that the State, through the RER, is equipped to verify two issues:

a) The religious group requesting registration cannot be one of the excluded ones by section 3.2. of the LOLR b) The activities of the group cannot go against the fundamental rights of others or against the public order.

Regarding the first issue, we believe the paragraph is not aptly worded because

it excludes from the area of application of the Law on Religious Freedom those entities characterised by certain features (“the diffusion of humanistic values”, “the experimentation of psychic or parapsychological phenomena”), which, in essence, are pertinent to religions. As such, for example, it is inescapable that prayers or miracles, practiced by so many religions, may be classified as “psychic or parapsychological phenomena”, or that the diffusion of “humanistic values” may be predicated by all religious groups.

In other words, the law uses in that article 3.2. innate elements of the included groups as criteria for exclusion. That paragraph has never been the object of either a recourse or question of unconstitutionality. However, we understand that, whichever way you look at it, this is simply contradictory.

Regarding acts against fundamental rights or public order, that same ruling recognises that control must be undertaken on the basis of stating (and not rating), in other words, that the injury of fundamental rights or public order supposedly undertaken by religious entities should not be interpreted in a preventive manner facing eventual risks. Using the clause on Public Order as a limit to exercising religious freedom has to be done, not by virtue of mere presumptions, but as the result of stating produced when these activities have been condemned by a firm ruling.

As the Constitutional Court puts it: “only when the existence of a certain danger against the public security, health and morality as they should be recognised in a democratic society has been accredited before the court, it is pertinent to invoke public order as a boundary to the exercise of the right to religious freedom and freedom of worship” (FJ11).

Now, in the case that the RER, in the absence of evidence, detects indications suggesting the applicant group is undertaking activities against public order, it would be legitimate for the person in charge of the Register to suspend the

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processing of that application and return the file to the Public Prosecutor in order to initiate the pertinent procedures10.

Neutrality has certain consequences for the State. Firstly, the authorities may not profess any faith (it would otherwise be a denominational State). Secondly, the State may not proclaim itself as atheist (this would be the case of a religion persecutory State). Lastly, the State would neither be able to maintain a secularized11 attitude.

In this sense, it would be convenient not to mix up, which is regrettably often the case, the terms Secularization and Secularism. A secularized State is a State prejudiced against religion or religious groups. Those prejudices may manifest themselves in its administrative performance, as much as in its legislative and judicial work. Here are two examples:

A secularized attitude (Secularization or Secularism are obviously attitudes of the State not of society) would be to treat religious groups worse than groups of other nature (sport, cultural or culinary). The principle of equality obviously allows the authoirty to establish differences between people or groups of people. However, these differences should be proportional to the sought-out end and reasonable. On the contrary, if these differences are not reasonable or they are based on reasons related to birth, gender, race or religion, we would be looking at discriminatory differences.

Another example of a secularized attitude could be the confinement of religious manifestations to the private sphere, understood as the intimacy of the home.

From the constitutional point of view, when one says that religion has to be kept away from the public sphere, we mean as such the authorities, not the streets. That is, public civil servants, as representatives of the Administration, may not defend or back a specific religion against others, nor atheism against a religious approach. Notwithstanding, religious groups, like any other group, can obviously express themselves in the public sphere, that is, in the street, as long as they observe the rules applying to the right of demonstration and the appropriate laws.

To relegate religious expressions to the private realm, such as the home, would be a secularized attitude, because it would veto the fundamental right of demonstration. And our state is not secularized, it is secular, that is, neutral in the face of the religious dilemma.

10 The Basic Law 1/2002 regulating the Right to Association fixes this for associations (articles 30. 3 and 4). Vid. PELAYO, D.: Las comunidades ideológicas y religiosas, la personalidad jurídica y la actividad registral Madrid 2007 pg. 313. 11 Note of the Translator: the Spanish concepts of “laico” and “laicismo” have been translated in the text as “secular” and “secularism” –equivalent to non-confessional-, as opposed to the concepts that are introduced now of “laicista” and “laicidad”, which are translated as “secularized” and “secularization”.

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In summary, the main consequence of secularism is that the State can’t assume religious values (as such) as parameters to measure the legitimacy or illegitimacy of its performance12.

2.B.) The principle of Cooperation This principle is implicitly reflected in article 9.2 of the Spanish Constitution 13

and in a more convincing way in article 16.314, where in relation to the shy declaration of non-denominationalism, the Constitution adds two mandates directed to the authorities:

- Take into account the religious beliefs of the Spanish population - Maintain the resulting relations of cooperation with the Catholic Church and

all other denominations. From this double mandate, it is possible to extract certain consequences. In the first place, cooperation refers to religious faiths, this is the “faith option”.

Although the State can obviously cooperate with non-religious ideological groups, article 16.2 refers to the cooperation of the authorities with the Catholic Church, whose religious character is reflected in the Magna Carta, and with other religious denominations.

Secondly, relations of cooperation imply the existente of two different subjects: the authorities (in all its contexts) and the religious group. Two entities which are independent and autonomous, as we have already stated. In other words, cooperation further strengthens the principle of separation.

Thirdly, the order of the Constituent Power to cooperate implies a positive valorisation of the religious phenomenon. If the Constitution orders the authorities to cooperate with denominations, that means they are at least valued as something potentially positive, otherwise and out of pure coherence, they would spare themselves that imperative order to cooperate.

12 Undoubtedly, it can share values with religions (human dignity, solidarity). However, the State adopts these values as political and social values, not because of their religious label. 13 « It is the responsibility of the authorities to promote the conditions for the freedom and equality of individuals and the groups they conform to be real and effective; to remove the obstacles which impede and complicate their plenitude; and facilitate the participation of all citizens in the political, economic, cultural and social life ». 14 Article 16.3. of CE: “No denomination will have state nature. The authorities will take into account the religious beliefs of Spanish society and will maintain the resulting relations of cooperation with the Catholic Church and the other denominations”.

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The Magna Carta does not state how relations of cooperation should be developed. However, in line with the principle of freedom, cooperation should only take place at the request of the denomination, that is to say, if the denomination requests it, because some denominations, by virtue of their autonomy, may want to hold back from seeking institutional help.

The direct mention of the Catholic Church has not been a peaceful issue. For some, it signalled a type of underhand denomination. For others, a mere recognition of the historically well-established following the Catholic Church enjoyed in Spain. In the Constituents Assembly those who had declared to be against such a mention argued it was contradictory with the proclaimed non-denominationalism stated in the previous sentence. However, at the end it prevailed.

Some of its supporters argued that even though the mention to the Catholic Church in the Magna Carta was legally a questionable issue, it was reasonable from a political point of view, because the intention at that moment in time (the period of Spanish political transition) was the to go from a denominational State (the previous Regime) to a non-denominational or secular State without abruptness and in a non-traumatic manner.

In that sense, the attitude of the Communist Party’s representative, Santiago Carrillo, in the Constituents Assembly seems eloquent. He had fought for the specific mention of the Catholic Church, even if it were only to avoid that those who after the Second Republic had sided with “The Crusades”, aligned themselves now with the reactionary forces which opposed democracy at the time15.

3. Mandate of Cooperation in the LOLR (Basic Law on Religious

Freedom)

If the Magna Carta had presented the obligation for cooperation in terms of future action (“the authorities will take into account ….”), the LOLR assumes the mandate using a gerund, reflecting that the State by promulgating this law is integrating this mandate. Article 7.1 of the LOLR assures that the State, “taking into account the existing religious beliefs in Spanish society” may be able to establish a concrete mechanism for cooperation (Agreements or Pacts) “with the Churches, Denominations and Religious Communities registered in the Register which by the very nature of their contexts and number of followers have reached a well-established following in Spain …”.

Thus, the legislator opted for the establishment of a specific means of cooperation: the Agreements or Pacts of Cooperation offered to the denominations which had applied for it and adhered to the following three requisites:

15 Diary of the Members of Parliament’s Congress Sessions. Year 1978, Nº 106. Plenary Session. pg. 3994

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1. To be registered in the RER located in the Ministry of Justice (Department for Religious Affairs).

The Royal Decree 142/1981 indicates that four groups are susceptible of being

registered: - “Churches, denominations and religious communities” - the Federations that they form - the “orders, congregations and religious institutes”, which will logically belong to one of the denominations (evidently, they had the Catholic Church in mind) and - the religious associations which have been constituted as such according to the code of the denomination they belong to. For these, in order to authorise their religious ends, in conjunction with their declaration, they are obliged to attach a certificate from the Superior Organ of their church in Spain in order for it to act as a guarantor16.

2. To have obtained the recognition of a well-established following in Spain

This was a new legal concept. The law only offers two terminological supports

to determine a well-established following: the context (of the denomination) and the number of believers.

The Administration was therefore able to develop the concept of “a well-established following” by means of a regulatory norm in order to objectify it and cut down the temptations of discretionality. However, it failed to do so17. It only proposed that, given the ambiguity of the term, its reach would have to measured on a case to case basis. Nevertheless, it did pinpoint interpretative and orientative

16 By virtue of the Royal Decree 589/1984 of 8th February (BOE no. 85, 28th March) it is also possible to register foundations belonging to the Catholic Church. (For the time being, a Royal Decree allowing the registration of foundations belonging to other denominations with Agreements of Cooperation, has not been developed, which would be recommendable in order to reinforce equality). 17 The convenience of defining those requisites of objectivity in an administrative regulation was discussed at the Advice Commission, which took place on the 23rd June 1982, and it was rejected. On the one hand, some believed that this function had to be carried out through a law . On the other hand, some thought that with the approval of such a regulation the Administration, and specifically the Advice Commission of Religious Freedom, would lose the margin of discretionary powers it enjoyed.

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criteria (without the pretension of exhaustiveness) related to the legal terms “context” and “number of believers”.18

In this way, the concept of “context” not only referred to the followers of the denomination being sufficiently and significantly extended throughout all or part of the Spanish territory, but also to aspects such as the historical following of that denomination in our country, the importance of their social, charitable and cultural activities, the number of places of worship, or the number of ministers of worship in proportion to its members.

Even though there is no specific legal prescription as such, the administrative organ which ‘de facto’ grants the status of a well-established following is the Advice Commission for Religious Freedom (Comisión Asesora de Libertad Religiosa, to be referred to as the CALR from here on), a consultative body appointed by the Ministry of Justice, whose task and mission, according to the LOLR, are to undertake studies, reports and proposals of all those issues applicable to the Basic Law, and particularly, with perceptive character, in the preparation and reporting of those Resolutions or Agreements of Cooperation19.

Framed within the Ministry of Justice, the CALR is composed in equal numbers and with a stable character by representatives of the State’s Administration, churches, denominations, religious communities or federations, within which will certainly be those with a well-established following in Spain, and by people recognised as competent in the field whose advice is considered to be of interest and relevance to the material related to the present law. 19 3. The aforementioned Cooperation Agreements must be approved by the Parliament

The State signed Cooperation Agreements with three entities who represent the

respective denominations and are today the three interlocutors of the State: On the part of Islam: the Islamic Commission of Spain (Comisión Islámica de

España -CIE-) is integrated by two federations: the Union of Islamic Communities in Spain (Unión de Comunidades Islámicas de España -UCIDE-) and the Spanish Federation of Religious Islamic Entities (Federación Española de Entidades Religiosas Islámicas -FEERI-).

18 FERNANDEZ-CORONADO, A.: Estado y confesiones religiosas: un nuevo modelo de relación (los pactos con las confesiones: leyes 24, 25 y 26 de 1992) Civitas. Madrid 1995, pages 45 – 47. 19 Art. 8.2 LOLR 20In the heart of the CALR there is a Permanent Commission which will also have a balanced composition.

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On the part of the Evangelists, the representative body of Spanish Protestantism is the Federation of Evangelical Religious Entities of Spain (Federación de Entidades Religiosas Evangélicas de España -FEREDE-).

Thirdly, the Federation of Jewish Communities in Spain (Federación de Comunidades Judías de España -FCJE-), which represents Spanish Jews.

To conclude, the Spanish Parliament, as established in article 7 of the LOLR, approved the Agreements in the Laws 24, 25 and 26 of 10th November 1992 20, dealing with issues such as the legal protection of places of worship, the statute of ministers of worship, their inclusion in the General Regime of Social Security, the civil effects of marriages celebrated according to Jewish, Evangelical and Muslim rites, religious chaplaincy in centres or public establishments, religious education in teaching centres and fiscal benefits applied to specific goods and activities belonging to the FEREDE, the CIE or the FCJE as signatories of the Agreement.

21 Laws 24, 25 and 26 of 10th November 1992 approving Cooperation Agreements subscribed between the State and the Federación de Entidades Religiosas Evangélicas de España (FEREDE), the Federación de Comunidades Israelitas de España (FCIE) and the Comisión Islámica de España (CIE) (BOE no. 272, 12th November)

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Prof. dr. Lars FRIEDNER Swenska Kyrkan

Under the Riksdag (Swedish Parliament) and the Government, the Ministry of

Culture is responsible for the legal and financial matters regarding the religious communities.1 The task of the Ministry is to provide the Government with drafts on legislation and budget. The Ministry deals, however, also with several other questions. The Ministry has 85 employees and has an annual budget of nearly 800 million Euro.2

Under the Government there is the Swedish Commission for Government Support to the Religious Communities.3 The task of the Commission is, according to provisions laid down in the Act on support to religious communities and the Ordinance on Government grants to religious communities,4 to decide on these state subsidies.

The Swedish system for state support to the religious communities is based on the fact that the Church of Sweden, the former state church, as a result of the new state-church relations from the year 2000, was granted the right to use the state’s tax system for collecting its membership fees.5 Also other religious communities could apply for the right to use the tax system.6 The other religious communities than the Church of Sweden can, as mentioned, choose whether they want to use the tax system or if they prefer direct economical support.7 A religious community which chooses the use of the tax system will get its subsidies reduced, according to the state’s cost for the use of the tax system.

Not every religious community is entitled to receive support from the state. Support is only given to religious communities that “… contribute to the maintenance and strengthening of the basic values on which the society rests and is

1 Ordinance (1996:1515) with Instruction for the Government’s Office (Sw. Instruktion för regeringskansliet), appendix 2 www.regeringen.se 3 Sw. Nämnden för statligt stöd till trossamfund; Ordinance (2007:1192) with Instructions for the Swedish Commission for Government Support to the Religious Communities ( Sw. Förordning med instruktion för nämnden för statligt stöd till trossamfund) 4 Sw. Förordningen (1999:974) om statsbidrag till trossamfund 5 Religious Communities Act, Section 16 6 ibid. 7 Act on Support to Religious Communities, Section 4

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stable and has its own living-spirit.”8 ’Maintenance and strengthening of the basic values’ means that the religious community is supposed to work against all forms of racism and other forms of discrimination, as well as violence and brutality. The religious community is also supposed to work for the development of the conditions for equality between women and men as well as that their members and others who are served are guided by principles that are consistent with the basic values of our society. However, this does not involve any demand that, for instance, the doctrine or the way of thinking of the community must be formed through democratic process. Neither is it demanded that the decision-making process in the community for appointing, for instance, priests is democratically based. Instead, it is of essential importance that the religious community acts to promote the participation of its members and others in the life of the society and that the community clearly disassociates itself with any possible anti-democratic mood in society. A religious community is regarded as ‘stable’ if it has been operating in Sweden since at least five years. It is also provided that the community must have a firm organisational structure and a stable economy, mainly based on those who are members or in other ways served by the community. The community must also have premises for its activities. ’Living-spirit’ means that a religious community is normally expected to have at least 3,000 members (or serves as many) and to have activities on several different places within the country.9 The Government decides which religious communities are entitled to state subsidies, and they are enumerated in the Ordinance on Government Grants to Religious Communities.10

The Swedish Commission for Government Support to Religious Communities has an annual budget of a good five million euro (included in the budget of the Ministry of Culture ) and has six employees.

As already mentioned, the Church of Sweden does not receive any direct economic state support. However, there is system for church antiquarian remuneration.11 This remuneration is based on the fact that the Church of Sweden’s church buildings, erected before the year 1940, are protected by the Heritage Conservation Act and can not legally be altered, re-built or pulled down without the consent of the authorities.12 The Government pays the church antiquarian remuneration every year to the Church of Sweden; for the year 2008, the amount is a good 40 million euro,13 included in the above-mentioned budget for the Ministry of Culture. 8 Religious Communities Act Section 16; Act on Support to Religious Communities, Section 3 9 Government Bill 1998/99:124 p. 100, 103 10 Section 3 11 Heritage Conservation Act, etc. 4:16 12 ibid. 4:2, 3; if decided by the Swedish National Heritage Board, also newer church buildings are protected, 4:4 13 Government Bill 1998/99:38 p. 140

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Under the Government, the Legal, Financial, and Administrative Services Agency14 also carries out activities in the field of the religious communities. It is a duty for the agency to register the religious communities who apply for registration.15 The Agency also decides on the matter of right for the religious communities to officiate marriages.16 In addition, the Agency has a lot of other activities. The number of employees is 184, and the annual budget a good five million euro.17

The new state-church relations in Sweden from the year 2000 have led to quite a lot of new legislation; mention has already been made of the Church of Sweden Act, the Act on Introduction of the Church of Sweden Act, the Religious Communities Act, the Act on Support to Religious Communities, and the Ordinance on Government Grants to Religious Communities. The new relations involved amendments to, for instance, the Heritage Conservation Act and the Burial Act. Other Acts mentioned included the 1993 Act on Right for Officiating Marriages within other Religious Communities than the Church of Sweden as well as the 1994 Act on the European Convention Regarding Protection of Human Rights and Fundamental Freedoms. Other new legislation includes the Act on Fees to Registered Religious Communities,18 Ordinance on Fees to Registered Religious Communities,19 Ordinance on Registration of Religious Communities,20 Act on Entrusting Public Documents to the Church of Sweden or any of its Organisational Parts on Deposit, etc.,21 Ordinance on Entrusting Public Documents to the Church of Sweden or any of its Organisational Parts on Deposit,22 Act on the Church of Sweden’s Personnel at the Changing of Relations between the State and the Church of Sweden on January 1, 2000,23 Act on Exemption from Taxes for Priest Livelihood Resources at the Yearly Taxations 2001-2010,24 Act on the Legal Confirmation in Some Cases for the Church of Sweden’s Acquisition to Property

14 Sw. Kammarkollegiet 15 Religious Communities Act, Section 7, Ordinance (1999:731) on Registration of Religious Communities (Sw. Förordningen om registrering av trossamfund), Section 2 16 Act on the Right for Officiating Marriages within other Religious Communities than the Church of Sweden, Sections 1 and 2 17 www.kammarkollegiet.se 18 Sw. Lag (1999.291) om avgift till registrerat trossamfund 19 Sw. Förordning (1999:728) om avgift till registrerat trossamfund 20 Sw. Förordning (1999:731) om registrering av trossamfund 21 Sw. Lag (1999:288) om överlämnande av allmänna handlingar till Svenska kyrkan eller någon av dess organisatoriska delar för förvaring, m.m. 22 Sw. Förordning (1999:976) om överlämnande av allmänna handlingar till Svenska kyrkan eller någon av dess organisatoriska delar för förvaring 23 Sw. Lag (1999:289) om Svenska kyrkans personal vid relationsändringen mellan staten och Svenska kyrkan den 1 januari 2000 24 Sw. Lag (1999:290) om skattefrihet för prästlönetillgångar vid 2001-2010 års taxeringar

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etc.,25 Act on Dissolution of Foundations in Some Cases,26 and Ordinance on Fees for Applications on Dissolution of Foundations.27

There are at the moment two publicly known drafts for amendments in the legislation concerning the religious communities. Proposals in the matter of marriage and partnership for same-sex couples will have impact on the Church of Sweden, which until now has had the right that every priest within the Church could officiate at marriages; the amendments will result in it being necessary for the registration of each priest by the authorities.28 There is also a draft aimed at making the registration of religious communities easier.29 None of these drafts have, so far, led to any decision by the Government or Riksdag.

There are about 800 private schools, of which 65 are run by religious communities (2005). The number of pupils in private schools is about 110,000.30 There are no statistics on the number of pupils who attend schools run by religious communities. Sweden has 61 universities, university colleges, and independent programme providers with state permits to set examinations for the award of a state-recognised degree. Four of these are run by religious communities,31 and the number of students at these university colleges in 2004 was 1,500. The total number of students in Sweden at the basic level was 340,000.32

Religious communities in Sweden are exempted from income tax provided they do not carry out business activities. If they operate a business on a limited scale, that part of the communities’ activities will be subject to tax.33 The donors to a religious community do not receive any general tax reductions because of their donations, although the matter has been often discussed.34

There is no church tax in Sweden. But, as mentioned, the Church of Sweden and eight other religious communities have been granted the right to use the tax system for collecting their membership fees.35 The total amount of church fees collected through the tax system is for 2008 estimated to be almost 1,500 million Euro.36 Beside these church fees, it is not possible for Swedish inhabitants to direct parts of their taxes to selected religious communities.

State financial support for activities of churches and other religious communities, see appendix.

25 Sw. Lag (2002:385) om lagfart i vissa fall för Svenska kyrkan m.m. 26 Sw. Lag (2001:845) om upplösning av stiftelser i vissa fall 27 Sw. Förordning (2001:1049) om avgifter för ansökningar om upplösning av stiftelser 28 Official Government Report - SOU 2007:17 29 Ministry Publications Series - Ds 2008:51 30 www.skolverket.se 31 www.hsv.se 32 ibid. 33 Income Tax Act (1999:1229; Sw. Inkomstskattelagen) 7:7-14 34 i.e. Bet 2007/08:SkU18 35 Religious Communities Act Section 16 36 www.skatteverket.se

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Appendix

STATE FINANCIAL SUPPORT FOR ACTIVITIES OF CHURCHES AND OTHER RELIGIOUS COMMUNITIES

AMOUNT OF ALLOCATION FOR THE YEAR 2007

<<< AIM

MAIN CHURCH OR RELIGIOUS COMMUNITY

OTHER CHURCHES AND RELIGIOUS COMMUNITIES

salaries for teachers of religion in public schools

None None

Ordinance (1999:974) on Government Grants to Religious Communities, Section 11

salaries for chaplains in prisons, hospitals and armed forces

None (Armed forces: *)

Prisons: No complete statistics exist, but at least 300,000 EUR Hospitals: 550,000 EUR (Armed forces:*)

social work None None social insurance and

salaries of priests None None

Cultural Heritage etc. Act (1988:950) 4:16

protection and reconstruction of the sacral monuments

40,000,000 EUR None

cultural activities None None Ordinance (2007:1371) with Instruction for Swedish International Development Cooperation Agency, Section 3

charitable activities (only for international development)

8,000,000 EUR **

health activities None None Ordinance (1999:974) on Government Grants to Religious Communities, Sections 4 and 10; Ordinance (2007:1293) with Instruction for Swedish National Agency for Higher Education, Section 1

educational activities

*** 500,000 EUR

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religious objects None None Ordinance (1999:974) on Government Grants to Religious Communities, Section 3

other None 4,500,000 EUR

* Peacetime chaplains in the armed forces are paid by the religious communities. Wartime chaplains (incl. chaplains in battle groups for international duties) are paid by the state. ** Other churches and religious communities also receive financial support from the state for international development, but this support is channelled through other organisations, i.e. foundations. *** The Church of Sweden, the main church, also receives indirectly some financial support from the state for the university colleges run by organisations connected to the Church NOTE: The schedule above does not contain any information about support from local municipalities.

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Dr. Amanda van Eck Duymaer van TWIST Inform’s Information and Research Officer,

London School of Economics

I Information about state agency or ministry in your country competent for churches and religious communities; its competences;

number of employees; annual budget. a) There is no central register of religions in Britain, nor is there any official

body which could recognize a group or individual as a 'religion.' The British government does not distinguish between religious and non-religious organizations and requires both to follow any relevant laws of the country.

b) Her Majesty Queen Elizabeth II is the ‘Supreme Governor’ of the Church of England; she officially appoints archbishops, bishops and deans of cathedrals on the advice of the Prime Minister. The two archbishops and 24 senior bishops sit in the House of Lords and contribute to Parliament's work. The General Synod (est. 1970) is the national assembly of the Church of England. It meets to decide doctrinal and organizational matters within the CoE but also can consider matters of religious or public interest. This is significant because it has the special legal status of being able to pass ‘Measures’ which, if approved by resolution of each House of Parliament, receive Royal Assent and thereby become part of the law of England (i.e. it can propose legislation on religious matters subject to Parliamentary approval).

In 2005, the Church of England had 11,477 local clergy and would have employed a number of other auxiliary staff. The Church of England raises its own income and is not directly funded with tax money. It spends just over £100 million a year on staff salaries, building upkeep, working expenses, pensions and charitable projects. Most of this income is raised annually from parishioners and from the £4.5 billion of assets of the church but some income is obtained through lottery grants and local council budgets (see section c below). (http://www.cofe.anglican.org/info/funding/index.html#how).

c) The Department of Communities and Local Government (DCLG) is responsible for national policy on local government in England. Within this department, since 2006, religions come under the remit of The Race, Cohesion and Faiths Directorate, which works with other government departments to reduce race and faith inequalities in education, health, housing and the Criminal Justice System, as well as the labour market. Its directive is to create ‘more

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cohesive communities, tackling racism, extremism and hate and promoting inter-faith activity and a shared sense of belonging’. (http://www.communities.gov.uk/communities/racecohesionfaith/)

The Race, Cohesion and Faiths Directorate offers grants to organizations that support its policy aims. This includes significant funding to religious organizations promoting community projects and inter-faith work. Between 2006 and 2009, this department is offering £18 million in grants which encourage race equality and community cohesion. Charities, including many religious organizations and other charities are the main bidders for this money

(http://www.communities.gov.uk/communities/racecohesionfaith/grantsandfunding/). This government body is also the major funding source for both the Inter-Faith Network and Inform.

d) Registering as a charity provides significant tax benefits which many religions find attractive. The UK Charity Commission does not recognize religions as such, but allows for the 'advancement of religion' as a charitable purpose. The Charity Commission has recently established a Faith and Social Cohesion Unit which will initially work with Muslim charities and communities to (among other goals) ‘promote well run and effectively regulated faith-based charities’ (http://www.charity-commission.gov.uk/tcc/faithsc.asp). The general principle of the Charity Commission is that legally, charities are for the benefit of the public, or a significant section of the public, and not for select individual. (See http://www.charitycommission.gov.uk/registration/exobj2.asp and http://www.charitycommission.gov.uk/publications/cc21.asp).The Charity Commission is primarily concerned that charities are financially accountable and that the money they raise is used towards their declared aims. The Commission will investigate if it is informed that accountable and charitable financial procedures are not followed, and occasionally removes charitable status if it finds serious breaches of charity law.

The Charity Commission is funded by Government and in the year 2006-07 spent a total of £31.83 million on operating activity and capital investment. The Charity Commission maintains a staff of 450 individuals with offices in London, Liverpool, Newport and Taunton. (Annual Report 2006-2007 http://www.companieshouse.gov.uk/about/pdf/annrep2006_7.pdf).

e) Religions may also choose to register aspects of their organization as a business with Companies House ( http://www.companieshouse.gov.uk/) which provides legal protection for those who invested in any part of the religious organization that behaved like a business, (e.g. taking money for services, employing workers, publishing books, producing education materials, and so forth). An important advantage of registering as a company would be the limiting of individual liability in the case of financial problems, e.g. bankruptcy protection. It is possible to register simultaneously as a charity and a company and this is common practice to limit the personal financial liability of the trustees of registered charities.

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Companies House was established through the introduction of “public dividend capital” and three 15-year loans from the Department of Trade and Industry which were fully repaid during 2006-2007. For 2006-2007, Companies House had an annual income of about £72,000,000. Most of this income, which excludes value added tax, represents fees and charges in exchange for services provided. Included in this income is an amount recovered from the Department of Trade and Industry for running costs incurred by Companies House in respect to the charging, administration and collection of penalties raised on companies as the result of the late filing of accounts. Miscellaneous income, for example rent receivable, is accounted for as ‘other operating income.’ Companies House maintains approximately 1,247 Employees in London, Cardiff and Edinburgh (Annual Report 2006-2007 http://www.companieshouse.gov.uk/about/pdf/annrep2006_7.pdf).

f) Local government authorities (counties or London boroughs) maintain registers of 'places of worship.’ There are two reasons for a religion registering a building as such:

a. It is technically illegal for over 20 people to worship in a building other than a private residence unless that building is registered as a 'Place of Worship' (Places of Religious Worship 1812s.2 (UK)). This 1812 law is rarely – if ever – invoked. However, registration as a ‘Place of Worship’ provides practical benefits for a religion with more liberal planning restrictions, for use of property and possible structural changes to the property – (See legal section below for more examples) (Liberty of Religious Worship Act 1955s.1). The local authority has to be satisfied that the proposed building is being used as a place of worship and can refuse this designation if not satisfied. See section VI for an example concerning the Church of Scientology.

b. Local government authorities (counties or London boroughs) maintain registers of 'places of worship' for religious marriage ceremonies. However, religious marriage ceremonies with the exception of those within the Church of England must also be registered directly with the state and complete 'civil' ceremony paperwork (http://www.gro.gov.uk/gro/content/marriages/where-can-i-marry/index.asp). However, community centres and schools are commonly rented for religious

worship on a part-time basis and there is no reason why groups renting such a space would necessarily be registered with any government body. In London, this is a particularly common practice amongst small churches with a high population of immigrant members.

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II Legislation related to religious freedom and religious communities accepted after 1990 – list of laws on religious freedom and agreements

between state and religious communities. General Religious Freedom Issues Racial and Religious Hatred Act 2006 (http://www.opsi.gov.uk/acts/acts2006/ukpga_20060001_en_1) An Act created with the purpose to make provisions about offences involving

stirring up hatred against persons on racial or religious grounds. The Equality Act 2006 (www.opsi.gov.uk/acts/acts2006/pdf/ukpga_20060003_en.pdf) Explicitly

prohibits and defines religious discrimination. Human Rights Act 1998 c. 42 (http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1) An Act to give further effect to rights and freedoms guaranteed under the

European Convention on Human Rights. Notable for the purpose of this conference is, among other points:

13 Freedom of thought, conscience and religion (1) If a court’s determination of any question arising under this Act might affect

the exercise by a religious organization (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.

Employment Equality (Religion or Belief) Regulations 2003

(http://www.opsi.gov.uk/si/em2004/uksiem_20042520_en.pdf) Terrorism Terrorism Act 2006 (http://www.opsi.gov.uk/acts/acts2006/ukpga_20060011_en_4#pt2-pb1-l1g21)

Interesting here is 21, Grounds for Proscription, which has been expanded from the Terrorism Act 2000 to include ‘unlawful glorification of the commission or preparation (whether in the past, in the future or generally) of acts of terrorism’ or encouraging the emulation of such acts of terrorism. The addition of the clause led to the inclusion of Al-Gubaara and the Saved Sect as ‘Proscribed Groups’ in the UK

(http://www.opsi.gov.uk/si/em2006/uksiem_20062016_en.pdf). For the complete list of proscribed groups (currently numbering 46) see:

http://www.homeoffice.gov.uk/security/terrorism-and-the-law/terrorism-act/proscribed-groups.

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Sunday Trading Sunday Trading Act 1994 (http://www.opsi.gov.uk/acts/acts1994/ukpga_19940020_en_1) An Act to reform the law of England and Wales relating to Sunday trading; to

make provision as to the rights of shop workers under the law of England and Wales in relation to Sunday working; and for connected purposes.

Charities Charities Act 2006 (http://www.opsi.gov.uk/acts/acts2006/ukpga_20060050_en_1.htm) The Commission sought to change the meaning of “charitable purpose”: (1) For the purposes of the law of England and Wales, a charitable purpose is a

purpose which— (a) falls within subsection (2) e.g. the advancement of religion, and (b) is for the public benefit (described in section 3 of the act). In subsection (2)— (a) in paragraph (c) “religion” includes— (i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god.

Charities and Trustee Investment (Scotland) Act 2005 (asp 10)

(http://www.opsi.gov.uk/legislation/scotland/acts2005/en/aspen_20050010_en.pdf ) The Office of the Scottish Charity Regulator (OSCR) may designate as a religious charity an organisation which satisfies their ‘charity test’. The test consists of two parts: the purposes of the body must be exclusively charitable and it must provide public benefit, either in Scotland or elsewhere.

Census Census (Amendment) Act 2000 (http://www.opsi.gov.uk/acts/acts2000/ukpga_20000024_en_1) An Act to amend the [1920 c. 41.] Census Act 1920 to enable particulars to be

required in respect of religion. Places of Worship Issues Human Tissue Act 2004 (http://www.opsi.gov.uk/acts/acts2004/en/04en30-a.htm) Section 40: Religious relics Of particular interest is point 55. This section

excludes the public display of religious relics and storage of such relics for the purpose of public display, from the remit of the HTA, from the requirement for a licence and from the remit of the Inspectorate of Anatomy & Pathology. It applies to relics displayed in places of public religious worship or associated places.

Licensing Act 2003 (http://www.opsi.gov.uk/acts/acts2003/ukpga_20030017_en_1)

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This is an Act to make provisions about the regulation of the sale and supply of alcohol, the provision of entertainment and the provision of late night refreshment, about offences relating to alcohol and for connected purposes.

There is an exception for places of religious worship (Schedule 1 – Part 2). Care of Places of Worship Measure 1999 (http://www.opsi.gov.uk/uk-church-measures/1999/ukcm_19990002_en_1) A Measure passed by the General Synod of the Church of England to make

provisions in relation to the care of certain buildings used for or in connection with worship; and for purposes connected therewith. (Previously, the Charities Act 1993 (Chapter 10)

(http://www.opsi.gov.uk/acts/acts1993/ukpga_19930010_en_1) had made an amendment to the Places of Worship Registration Act 1855 (c. 81)).

Local Government Finance Act 1992 (c. 14) – Schedule 10 (http://www.opsi.gov.uk/acts/acts1992/Ukpga_19920014_en_17.htm) An Act to provide for certain local authorities to levy and collect a new tax, to

be called council tax; to abolish community charges; to make further provisions with respect to local government finance (including provisions with respect to certain grants by local authorities); and for connected purposes.

It allows for ‘Place of Worship’ rights to be extended to areas used for ‘office work’ for places of worship.

Marriages and Family Law Divorce (Religious Marriages) Act 2002 (http://www.opsi.gov.uk/acts/acts2002/ukpga_20020027_en_1). An Act to make provisions enabling a court to require the dissolution of a

religious marriage before granting a civil divorce. The Divorce (Religious Bodies) (Scotland) Regulations 2006 (http://www.opsi.gov.uk/legislation/scotland/ssi2006/20060253.htm). Any Hebrew Congregation is prescribed as a religious body for the purposes of

the definition of ‘religious marriage’ contained in section 3A(7) of the Divorce (Scotland) Act 1976.

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Teaching of Religion in Schools The Designation of Schools Having a Religious Character (Wales) Order 2007

(http://www.opsi.gov.uk/legislation/wales/wsi2007/wsi_20070972_en_1), where: 2) The relevant religion or religious denomination in relation to a school listed in the Schedule to this Order is—

a) Church in Wales, in the case of a school listed in Part I of the Schedule; b) Roman Catholic, in the case of a school listed in Part II of the Schedule;

and c) Roman Catholic and Anglican school, in the case of a school listed in Part

III of the Schedule.

Education Act 2005 (Chapter 18). (http://www.opsi.gov.uk/acts/acts2005/ukpga_20050018_en_1) Provisions for

the inspection of religious education in schools, and School Standards and Framework Act 1998

(http://www.opsi.gov.uk/acts/acts1998/ukpga_19980031_en_1). Of particular interest here is section 69: ‘Duty to secure due provision of

religious education’. Subject to exceptions and special arrangements (section 71), in relation to any community, foundation or voluntary school— (a) the local education authority and the governing body shall exercise their functions with a view to securing, and (b) the head teacher shall secure, that religious education is given in accordance with the provision for such education included in the school’s basic curriculum by virtue of section 352(1)(a) of the [1996 c. 56.] Education Act 1996: 70. Subject to section 71, each pupil in attendance at a community, foundation or voluntary school shall on each school day take part in an act of collective worship. 71. If the parent of a pupil at a community, foundation or voluntary school requests that he may be wholly or partly excused— (a) from receiving religious education given in the school in accordance with the school’s basic curriculum, (b) from attendance at religious worship in the school, or (c) both from receiving such education and from such attendance, the pupil shall be so excused until the request is withdrawn.

This followed Education Act 1996, where Schedule 31 dictated ‘Agreed Syllabuses of Religious Education’ (http://www.opsi.gov.uk/acts/acts1996/ukpga_19960056_en_60). It acted to consolidate the Education Act 1944 and certain other enactments relating to education, with amendments to give effect to recommendations of the Law Commission. There was a previous Education Act in 1993 (http://www.opsi.gov.uk/acts/acts1993/ukpga_19930035_en_1) that sought to amend the law about education. Particularly relevant here is the section on religious education and worship (no. 138-148). A previous Further and Higher Education Act 1992 (c. 13) (http://www.opsi.gov.uk/acts/acts1992/ukpga_19920013_en_1) made new provisions about further and higher education, including:

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44. Provision for collective worship of a broadly -Christian character 45. Provision for religious education of a broadly Christian character Children Leaving Care Act 2002 (http://www.opsi.gov.uk/legislation/northernireland/acts/acts2002/en/niaen_200

20011_en_1) This act includes provisions that the authority must, so far as is reasonably practicable, ascertain and give due consideration to the wishes and feelings of the child concerned, his or her parents and anyone else whom the authority considers to be relevant. This includes due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.

The Adoption and Children 2002 Act (http://www.opsi.gov.uk/acts/acts2002/ukpga_20020038_en_8#pt2-l1g115)

This act introduced special guardianship orders to provide permanence for children who cannot return to their birth families, but for whom adoption is not the most suitable option. Special guardianship is a legally secure permanence option for children, without the absolute legal severance from the birth family that stems from an adoption order. Foster carers and children in long term foster placements, minority ethnic communities with religious and cultural difficulties with adoption, carers who are relatives and older children who do not want to sever legal ties with their birth family, will supposedly benefit particularly from special guardianship.

The Welfare of Animals (Slaughter or Killing) Regulations 1995 (http://www.opsi.gov.uk/si/si1995/Uksi_19950731_en_19.htm)

offered additional provisions for slaughter by a religious method. Marriages and Child Care Welfare Reform Act (Northern Ireland) 2007 (c. 2) (http://www.opsi.gov.uk/legislation/northernireland/acts/acts2007/nia_2007000

2_en_9). This act regulates income-related allowance. Of particular interest here is point (7) which follows regulations making provisions for civil partners, and includes allowances for ‘prescribed modifications in a case where—(a) the claimant is a husband or wife by virtue of a marriage entered into under a law which permits polygamy, (b) either party to the marriage has for the time being any spouse additional to the other party, and (c) the claimant, the other party to the marriage and the additional spouse are members of the same household.’ The earlier Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7) (http://www.opsi.gov.uk/acts/acts1992/ukpga_19920007_en_15_content.htm) allowed for child benefit to be due to children born from polygamous unions.

This is in contrast to an earlier UK Private International Law (Miscellaneous Provisions) Act 1995 (c. 42)

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(http://www.opsi.gov.uk/acts/acts1995/ukpga_19950042_en_2_content.htm), that outlined the general illegality of polygamy. Yet, the Housing Benefit Guidance Manual: Amendment 14 December 2007

(http://www.dwp.gov.uk/housingbenefit/manuals/hbgm/parts/ptc_01b.asp) allows for additional payment made for dependent polygamous wives.

The Civil Partnerships Act 2004 (http://www.opsi.gov.uk/acts/acts2004/ukpga_20040033_en_1) allows for a

civil partnership between two people of the same sex (“civil partners”). Miscellaneous Measures relating to the Church of England Dioceses, Pastoral and Mission Measure 2007 (http://www.opsi.gov.uk/uk-church-measures/2007/ukcm_20070001_en_1) A Measure passed by the General Synod of the Church of England to further the

mission of the Church of England; it involved changes to the general administrative structure, among other issues.

Dioceses, Pastoral and Mission Measure 1994 (http://www.opsi.gov.uk/uk-church-easures/1994/Ukcm_19940001_en_1.htm)

A Measure passed by the General Synod of the Church of England to amend the Pastoral Measure 1983, in so far as it relates to redundant buildings and land annexed or belonging thereto, in connection with financial matters, with the removal of the legal effects of consecration, with the discharge and modification of covenants and with the annual report of the Advisory Board for Redundant Churches; and to provide a new name for the Redundant Churches Fund.

III Government’s plans for changing legislation in this field

(drafts of acts). Care Matters: Time for Change

(http://www.dfes.gov.uk/publications/timeforchange/) This document maps out priorities for children in care. Point 7.26 states that the

care plan should inform the decision as to which placement (e.g. foster care, children’s home or placement with family or friends) will best meet the child’s needs. It states that the care plan must also include details of the arrangements for maintaining contact between the child and their family and friends, along with clear proposals for supporting the child’s sense of identity, addressing any specific cultural, religious or linguistic needs.

Coroner’s Bill (http://www.commonsleader.gov.uk/output/page2022.asp#). This bill states that the coroner service will comply, where possible, with

individual, family, and community wishes, feelings and expectations, including family and community preferences, traditions and religious requirements relating to

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mourning and to funerals, and respect for individual and family privacy. Coroners will aim to release the body of the person who has died at the earliest opportunity once the medical cause of death has been confirmed, but families may request early release for personal, cultural or religious reasons.

Education and Skills Bill

(http://www.commonsleader.gov.uk/output/page2026.asp) This bill proposes to make full-time education or training mandatory until the

age of 18.

IV Educational activities of churches and religious communities: number of schools and universities established by churches and religious communities, the number of students attending their

programmes. The school system established in England was largely a product of church

initiative with a lead being taken by the Church of England at the beginning of the nineteenth century. Today religious schools make up a third of all schools in the maintained sector in England. In this category of schools, the state pays 85-90% of capital costs and the teachers’ salaries. All have to teach the national curriculum. For religious education, around 57% of faith schools (voluntary-aided) teach their own faith. The remaining 43% (voluntary-controlled or foundation schools) teach the locally agreed religious education syllabus, which has a more multi-ethnic approach. Admissions policy is determined by the school governors, but in many cases the local education authority is also involved. A school can insist children come from a particular faith background but it is bound by the Race Relations Act. Popular schools may insist on proof of baptism and regular church attendance.

In 2001, there were 6,384 religious primary schools and 589 secondary schools in England which were religious in nature. Of these, 4,716 were Church of England, 2,108 Roman Catholic, 32 Jewish, four Muslim, two Sikh, one Greek Orthodox and one Seventh Day Adventist. Until Labour was elected in 1997, all state faith schools were Christian or Jewish. (http://education.guardian.co.uk/schools/story/0,,593365,00.html). In September 2008 the first Hindu-based state-funded school will open in northwest London (http://www.krishna-avanti.org.uk/) with a large input from the International Society for Krishna Consciousness (ISKCON).

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Church of England Schools -Around one million children and young people are educated in Church of

England schools -Around a quarter of all state primary schools in England are Church of England

schools - that's around 4,450 schools. -Around one in twenty of all state secondary schools in England are Church of

England schools – around 210 schools. -12 Church of England Academies are now open, with a further 18 now at an

advanced stage in planning - the majority replacing vulnerable or failing schools and many in areas of social deprivation.

-Nearly one-fifth of all primary pupils and around six in every hundred of all secondary pupils attend these schools and these percentages in each case are growing.

The Church of England considers it essential that children learn about the major

faiths represented in Britain today as well as having a sound grounding in Christian faith and belief. Therefore, all RE syllabuses taught in church schools are multi-faith and require students to learn about at least the six major world faiths. The recent non-statutory Framework for RE reinforces this requirement (http://www.cofe.anglican.org/info/education/faqcofeschools/). Catholic Schools

In England, Catholic schools, called Catholic voluntary-aided schools, provide 10% of all maintained school places. About 30% of children in Catholic schools are not Catholic. Catholic schools follow the National Curriculum and other statutory regulations like any maintained school, as well as carrying additional responsibilities, through the role of the foundation governors, for example. Their religious education curriculum focuses more on the Catholic faith, the degree of which varies with the leadership of the school. Independent Schools

A number of religious schools in Britain choose to be in the independent sector. The state does not directly subsidise their running costs, although many are registered charities. While most follow the national curriculum, it is not an obligation. Some schools, such as Steiner schools offer the national curriculum exams (GCSE and A levels) as options for children to take when they want as part of guided independent study.

Schools under this category include schools from a number of New Religious Movements (NRMs), e.g.:

-The Maharishi School of the Age of Enlightenment, Cobbs Brow Lane, Lathom, L40 6JJ

-The Saint James Schools (SES) (http://www.stjamesschools.co.uk/), -Osho Ko Hsuan School, Chawleigh, Chulmleigh, Devon EX18 7EX,

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-Greenfield’s School in East Grinstead (http://www.greenfieldsschool.com) and the Cadet school at Saint Hill Manor.

-38 schools for Exclusive Brethren Children (http://www.tes.co.uk/search/story/?story_id=2122723), and -35 Steiner Schools in the UK (http://www.steinerwaldorf.org.uk/). The Education Act 2002 extended the definition of an independent school. In

addition to any establishment which provides full time education for 5 or more children of compulsory school age (without statements and ‘looked after' status), it now includes any establishment which provides full time education for one (or more) child of compulsory school age who has a statement of special educational needs, or is looked after by a local authority. Part 10 of the Education Act 2002 requires that all independent schools must be registered with the Department for Education and Skills. Applications for registration by new schools must be made before a school begins to operate and admit pupils. Regulations made under the Education Act 2002 set out a range of standards that all independent schools in England must satisfy as a condition of registration. These standards will be examined before an application for registration is approved and thereafter during the regular 6-yearly cycle of inspections that all independent schools will be required to undergo to ensure they continue to meet the standards for registration. The 2002 Act provides for action to be taken where schools do not meet the standards. (http://www.dfes.gov.uk/reg-independent-schools/)

The UK independent sector as a whole educates 620,000 children in around 2,500 independent schools. This represents just under 7% of the total number of schoolchildren in the UK (and just over 7% of the total number of schoolchildren in England). It also represents 23% of sixth form pupils. The average termly fee at an Independent Schools Council (ISC) school for 2006/2007 was £3,391 per term (http://www.isc.co.uk/FactsFigures_PupilNumbers.htm).

The ISC represents 1,280 independent schools educating more than 500,000 children. Independent schools not affiliated to ISC in England and independent schools accredited to ISC in Scotland, Wales and Northern Ireland are inspected through the national inspectorates in each country.

The Independent Schools Inspectorate (ISI) is the agency responsible for the inspection of schools in membership of the Independent Schools Council Associations. ISI is a body approved for the purpose of inspection under Section 162A of the Education Act 2005. As such, they report to the Department for Children, Schools and Families (DCSF) on the extent to which schools meet statutory requirements. The quality of its service is monitored by the Office for Standards in Education, Children's Services and Skills (Ofsted) on behalf of the DCSF.

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V The most important tax reductions related to religious communities and donators; legislation which determines taxation of

religious communities and donations. As the UK law does not define ‘religion,’ any organization or religion is

expected to declare their income to the HM Revenue & Customs. However, a majority of religions register as charities – the promotion of religion is recognized as a charitable aim. Registered Charities

UK Charities can claim relief from tax on most income or gains and on profits from some activities. They are exempt from tax on most income and gains from investments, estates, land and property so long as that income/gain is used for charitable purposes. Charities can also claim tax repayments on income received on which tax has already been paid including Gift Aid donations from individuals. Gift Aid

(http://www.hmrc.gov.uk/charities/faq/faqwhat-is-the-current-basic-rate-of-tax.shtml) Donations from individuals’ taxable income to registered charities are eligible for ‘Gift Aid’ which transfers tax money on the amount donated from the government to the charity at the Basic Tax Rate (currently 22%).

VI Experiences with implementing and executing legislation (list of

registered religious communities, state financial support for activities of churches and religious communities).

This section relies heavily on the work of Peter W. Edge, in particular his 2006

publication Religion and Law: An Introduction London: Ashgate. Much of his work discusses key issues in Anglophone jurisdiction. The Religious Use of Drugs

The UK does not allow for the religious use of proscribed drug. For example, a Rastafarian was arrested when found carrying cannabis (see Taylor [2001] EWCA Crim 2263 (UK), and Andrews [2004] EWCA Crim 947 (UK). He argued that the cannabis was part of his religion, that his acts should be interpreted as a manifestation of religion under ECHR Article 9, and that the criminal proceedings needed to be justified under Article 9(2).

At the trial the prosecution conceded without argument that Rastafarianism was a religion, and that the drugs were designated for religious purposes. However, writes Edge:

Taking Article 9 to be involved, the trial judge found that Article 9(2) justified the prohibition, and thus the criminal proceedings - indicating that there was an international consensus for an unqualified ban on the possession of

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cannabis as necessary to prevent public health and safety dangers arising from the drug. The conviction of the defendant was affirmed. His sentence of twelve months’ imprisonment was, however, reduced as being manifestly excessive for such an offence committed for religious purposes rather than for profit (2006, 84-5).

Conscientious Objection to Military Service

The Military Service Act 1916 introduced conscription and included an exception for conscientious objectors (Military Service Act 1916 s.2(1)(d)(UK)). Exemption options were partial exemption (excluding claimants from combatant duties only), conditional exemption (requiring claimants to undertake ‘alternative work of national importance’), and absolute exemption (requiring no substitute work).

According to Edge: The relevant legislation provided the same possible exemptions for

conscientious objectors (National Service (Armed Forces) Act 1939 s.5 (UK)). The scheme was more clearly defined by statute, and administered by tribunals including legally trained members (Edge 2006, 87-88).

Charity Law – Advancement of Religion as a Charitable Aim Religion:

Historically charity law was used to support approved forms of religion, and a purpose was deemed religious if in accordance with the Church of England. Modern charity law, however, seeks to engage with religious plurality, ideally so that ‘the law does not now favour one religion over another’ (Varsani v Jesari [1998] 3 All ER 273 (UK)). Since the nineteenth century the courts have accepted that religion can include non-Anglican forms of Christianity (for example, Thornton v Howe (1862) 21 Beav 14 (UK)), and non-Christian religions such as Judaism (for example, Re Michel’s Trust (1860) 28 Beav 39 (UK)). The Charity Commission has also registered, for instance, Hindu, Buddhist, Sikh, Bahai, Zoroastrian and Jain groups (Edge 2006, 107).

They have also registered some Buddhist groups as charities – this is interesting, as previous decisions have stressed a need for theistic belief systems in order to qualify for charitable status, hence excluding atheism from accepted forms of religion (see, for example, Re South Place Ethical Society ([1980] All ER 918 (UK)). In the case of the application from the Church of Scientology, the Charity Commission argued that the central practices of auditing and training did not qualify as worship (defined as conduct which indicated reverence or veneration for the supreme being and submission to the object worshipped), and therefore Scientology was not a religion for charitable purposes

(http://www.charity-commission.gov.uk/Library/registration/pdfs/cosfulldoc.pdf and Edge 2006, 107-108).

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In 2000 the Church of Scientology took its case to HM Revenue & Customs (the tax-collecting body in the UK) which agreed that it was a not-for-profit body and was exempt from paying VAT (Value Added Tax of (usually) 17.5%). All goods and services produced in the UK by any business or organization with revenues of over £60,000 is expected to either register for this tax or be able to demonstrate why they should be exempt http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=tru e&_pageLabel=pageVAT_Home).

Advancement of Religion:

Having established that a particular system is religious, it is also necessary to show that the work of the organisation will advance that religion. Edge writes:

In Keren Kayemeth Le Jisroel Ltd. v Commissioners of Inland Revenue ([1932] AC 650 (UK)) the House of Lords were required to consider whether a company whose main object was the settlement of Jews in Palestine, Syria, and other lands in Asia was established for charitable purposes. One of the grounds for seeking charitable recognition was that the company was formed for the advancement of religion. … Lord Tomlin was prepared to reject the argument on the more general grounds that there was nothing about the activity which was of itself religious – the religious motives of the founder of the company were not sufficient to convert the activity into a religion. (p. 108) For the same case, Lord Tomlin also considered the beliefs of Judaism as a

whole as possible grounds for rejecting the appeal, illustrating assumptions regarding models of religious organisation and practice (Ibid.). Similarly, in United Grand Lodge of Ancient Free and Accepted Masons of England v Holborn Borough Council )[1957] 1 WLR 1080 (UK)), Donovan J refused charitable status to freemasons, noting that:

[t]here is no religious instruction, no programme for the persuasion of unbelievers, no religious supervision to see that its members remain active and constant to the various religions that they may profess, no holding of religious services, no pastoral or missionary work of any kind (in Edge 2006, 109).

Public Benefit:

Finally, charity law demands that the advancement of a religion will provide public benefit, hence all charities must prove that the public is benefiting from their activities. Scientology was rejected in 1999 because the commission deemed that its benefit was for elected members rather than the public as a whole. Similarly,

...a benefit will not be recognised for the public as a whole if it relies upon metaphysical causation, for instance prayers by cloistered nuns to benefit the world as a whole (Gilmour v Coates [1949] AC 426 (UK), in Edge 2006 110-11).

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However, public benefit may be recognised where the religious benefit is directly available only to a small group, as the Commission appear to work on the basis that advancing any religion is prima facie beneficial, and then look for an element of interaction with the public to ensure that this benefit is of a public nature (Edge 2006, 110-11). Places of Worship

Buildings registered as a place of worship are exempt from the planning controls that are usually imposed on buildings which are listed as being of special value for conservation purposes (Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994 art. 4). Hence the Church of England may alter its listed places of worship without government consent; similar exemptions are also enjoyed by the Church in Wales, the Roman Catholic Church, the Methodist Church, the Baptist Unions of Great Britain and Wales, and the United Reformed Church. Those religious organisations who are not exempt, however, have to seek government guidance in any changes affecting their place of worship, such as change in congregation size, change in activities, and so forth (in Edge 2006, 124).

A good example here is a case involving the International Society for Krishna

Consciousness (ISKCON) that in 1973 acquired a manor house that had previously been a nurses’ residential college. The local authority deemed that its new use as a residential theological college fell in the same category hence planning permission was not required. Yet attendance at the property grew significantly and in 1983 ISKCON and the local authority had to find, and agree, on a compromise. But by 1987 the local authority deemed that there had been a change in the use of the land and that ISKCON was in breach of planning controls. Local residents had complained, and the local authority concluded that the land was not only used as a residential educational college, but also as a religious community, and included public worship and public entertainment in connection with religious festivals. ISKCON appealed and an enquiry followed; the dispute eventually reached the European Commission of Human Rights as ISKCON v United Kingdom ((1994) 18 EHRR CD 133 (ECHR)) (in Edge 2006, 124-126). Although the Inspector recognised that the manor had expanded its uses by also becoming a place of worship and pilgrimage for a sizeable part of the Hindu community, he concluded that the scale of its activities could not be accommodated on the premises. Eventually the problem was resolved by ISKCON making structural adjustments and the local authority granting permission for the premises to be used by a religious community for a non-residential theological college and allowing days of public worship (ibid.).

Another example of a planning permission dispute presented by Edge, which I shall offer here as well, involved the ‘material change of use’ of a residential dwelling. A house owner hosted a visiting Sikh religious leader, who suffered a heart attack and had to remain there. During his recovery many coreligionists came

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to pay their respects and chant prayers (up to a hundred on Sundays). The council protested that this amounted to a change from residential to mixed residential/religious use of the dwelling, and a breach of planning control (ex parte Sarvan Singh Seera ([1986] 53 P & CR 281 (UK) and in Edge 2006, p.128). Although the Sikh leader recovered and left the house, the owner questioned in what ways the council’s decision may also regulate prayer and worship during family meetings – were these considered part of the acceptable enjoyment of the dwelling, or were they considered religious meetings and devotion over and above what was acceptable within a dwelling? The council did not specify where the boundaries were between acceptable religious behaviour and behaviour that it considered in breach of planning control, leaving a grey area for many Bible reading groups, house churches and other religious and/or spiritual gatherings throughout the country.

In some cases claims for the registration of places of worship are rejected. For example, the Registrar General refused to certify a chapel on the headquarters of the Church of Scientology as a place of worship (ex parte Segerdal ([1970] 3 All ER 886 (UK)). The Church of Scientology contested this decision, but the Court of Appeal upheld the decision:

…Lord Denning saw Scientology as a philosophy, centred on the spirit of Man, containing nothing of reverence for God or a deity. When members of the Church of Scientology used prayer they did not use it ‘in its proper sense, i.e. intercession to God’, nor were their references to God used ‘in any religious sense’... Thus, although Lord Denning did not seek to distinguish between ‘religious’ and ‘worship’ in his judgement, the general tenor is that the Church of Scientology failed because they were not a real religion... The other two judges, however, focused on whether Scientology involved ‘worship’... (Edge 2006 126-127).

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Table: State Financial Support for Activities of Churches and Religious Communities

LEGAL ACT AND ARTICLE

AIM AMOUNT OF ALLOCATION PER YEAR

MAIN CHURCH OR RELIGIOUS COMMUNITIES

OTHER CHURCHES AND RELIGIOUS COMMUNITIES Education Act 1944

and subsequent Education Acts…

Salaries for teachers of religion in public schools

About 5,000 RE teachers in maintained schools av. teachers salary is £26.500 = £132.5 million

N/A

NHS 1948 Salaries for chaplains in prisons, hospitals and army

DoH grant to NHS = £60,000. Free Church Council and Jewish organization make up another £100,000. Often Chaplains visit hospitals as part of wider pastoral duties for their churches. -- Prisons have at least one paid chaplain, funded by HM Prison Services but some may share chaplains and some may have several – Free Church Council provides some funding and Chaplains, also Muslim and Buddhist Chaplains. There are 128 Prisons in the UK, many with part-time appointments - so likely not more than £3.8 million (128x £30,000 salary) and very likely considerably less. -- There are 156 Army Chaplains approved by their church who accompany UK troops as non-combatants. Salary between £65-67,000 – around £10.3 million total expenditure.

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494

Charities Act 2006 (and previous)

Social work May receive indirect support via being a registered charity and by public bidding for specific projects, e.g. communities and local development, with other nonprofit sector organizations. Social insurance

and salaries of priests

Not applicable

National Lottery Act 1993/2006

Protection and reconstruction of the sacral monuments

Indirectly through grants for historical buildings, e.g. bidding for Heritage Lottery Fund money.

Charities Act 2006 (and previous)

Cultural activities May receive indirect support via being a registered charity and by public bidding for specific projects, e.g. communities and local development, with other nonprofit sector organizations. Charities Act 2006

(and previous) Charitable activities May receive indirect support via being

a registered charity and by public bidding for specific projects, e.g. communities and local development, with other nonprofit sector organizations. Charities Act 2006

(and previous) Health activities May receive indirect support via being

a registered charity and by public bidding for specific projects, e.g. communities and local development, with other nonprofit sector organizations. Charities Act 2006

(and previous) Educational activities

May receive indirect support via being a registered charity and by public bidding for specific projects, e.g. communities and local development, with other nonprofit sector organizations. Charities Act 2006

(and previous) Religious objects May receive indirect support via being

a registered charity and by public bidding for specific projects, e.g. communities and local development, with other nonprofit sector organizations. Other

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VII Eventual church tax and its total amount in 2003, 2004, 2005, 2006

Not applicable in the case of Britain.

VIII Percentage of personal income tax which could be directed by individual tax payersto chosen religious communities (if this

possibility exists); the total amounts in 2003, 2004, 2005, 2006 and the distribution to churches (if available).

Not applicable in the case of Britain. However, donations to religious charities

are eligible for ‘Gift Aid’ which transfers tax money on the amount donated from the government to the charity at the Basic Tax Rate (currently 22%).

IV. APPENDIX - ANNEXE

499

TOPICS OF THE CONFERENCE

“LEGAL ASPECTS OF RELIGIOUS FREEDOM”

1. CONSTITUTIONAL JURISPRUDENCE IN THE AREA OF FREEDOM OF RELIGION AND BELIEFS


I. Essence and content of freedom of religion (faith) and freedom of conscience

1. Freedom of conscience (freedom of self-definition with regard to actions

expressing human belief, religious belief included); 2. Freedom of religious cult (freedom of manifesting own belief, and freedom

from external pressure); 3. Subjects of freedom of religion and conscience; 4. Freedom of the institutional Church (autonomy in defining and solving

own problems; legal identity of the Church and religious communities, as well as of their organisational units; ability to create an internal structure; property rights of churches and religious communities);

II. Protection of religious values as fundamental human rights in

constitutional jurisdiction-selected examples

1. Protection of religious values in positive (state) law; 2. Protection of believers against religious discrimination; 3. Religious justification of certain professional pragmatism (professional

codes of ethics, etc); 4. Right to manifest religious feelings; 5. Protection of religious feelings:

a) protection of religious symbols; b) usage of religious symbols in public; c) usage of religious symbols in state administration, in court, in public schools, etc. d) immunity of churches, chapels, cemeteries, and other objects of religious cult; e) respect for religious feelings in the mass media, f) (definition of religious symbols (Burka, etc).

TOPICS

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6. Protection of religious values in family relationships and with regard to the family, with special attention paid to the following:

a) protection of a religious marriage and family; b) civil and legal consequences of religious marriage; c) divorce. Recognition of civil and legal consequences of court orders to the effect of marriage annulment by church courts; d) rights of parents to bring up children in accordance with own moral and religious belief;

7. Freedom of organising communities at church, and of public worship; 8. Right to observe and celebrate church holidays.

III. Freedom of conscience and religion under special circumstances:

1. Ministry services in the army; 2. Religious care and services in penitentiaries, correction centres, homes of

reintegration, and such other; 3. Ministry services for the sick.

IV. Data Protection and Data of religious demography- plans about

question on religious affiliation in the census 2011. B. STATUS OF RELIGIOUS COMMUNITIES

I. Religious communities vs. the state-general model of constitutional relations

1. Constitutional definition of the relations model (state religion; neutral state; secular state; other terms applied); manner and scope of precise definition in constitutional jurisdiction; 2. Form of regulating relations between the state and religious communities (acts of law defining the general content of relations between the state and religious communities; acts of law of special reference to respective churches and religious communities-warranty of church influence on the process of passing such acts of law; agreements by and between the state and the respective churches or religious communities-their validity, and possible place in the general legal system; concordats-place in the legal system, form of interpretation); 3. Principle of equality of religion (whether and to what extent do the principles of equality of citizens and of prohibition to discriminate for religious reasons apply to the position of churches and religious communities; equality and liberation-

TOPICS

501

equality, or proportional equality of opportunities?); equality under conditions of an actual dominant religion-is positive discrimination allowable?


1. Founding churches and religious communities (are those two terms applied, and the difference between them) vs. recognition of the existence of churches and religious communities by the state. Extent of state control-problem of so-called sects, and of defining their status. 2. State recognition of the existence of churches and religious communities-is there a legal requirement of recognition; system of recognition - registration, entry into evidence system, notification; legal importance of recognising religious communities - are recognised religious communities entitled to specific privileges, or to a special position as compared with »regular« associations; 3. State control over religious communities' operation-problem of extent and areas of allowable intervention (protection of general legal order; supervision over finance, protection of civic rotation; third party rights' protection); 4. Religious communities vs. freedom of appointment for positions of church authority - scope of responsibility to the state. 5. The state vs. internal law of religious communities-form and extent of applying such law by state authorities; state courts vs. the issue of resolving disputes within religious communities (with special attention paid to property disputes, and consequently-the jurisdiction of internal religious community authorities with regard to passing decisions on behalf of the community-hence the problem of state evaluation of the legality of such authorities in the light of internal religious community law).


1. General principle – does the constitution provide for an imperative of strict separation of the state and religious communities (“wall of separation”), or does it allow or provide for different forms of accommodation; how can constitutional silence on the subject be interpreted?

2. State funding of religious communities – is it constitutionally allowable at all (differentiation of direct and indirect funding; funding of religious communities vs. financing the materialising of believers' needs – see IV. 3.c.);

3. Protection and promotion of religious values by state and law: a) active protection (legal obligation to protect and respect »Christian

values« by public institutions; public order regulations – e.g. traffic control on church holidays, etc.);

b) providing access to religious symbols in public places (crib and cross in a public place), introducing religious symbols into state

TOPICS

502

authority locations (cross or crucifix; religious oath; problem of competition among symbols of different religions);

c) permeation of religious and general cultural values (Christmas tree as a symbol used by public authorities), and the usage thereof by the state (reference to God on banknotes, licence plates etc.);

4. »Ordering public tasks« to be performed by religious communities (granting competence to religious communities in the area of marriage, divorce, marriage status records – distribution of responsibility, legal effectiveness of actions taken in such course, state control);

IV. Religious communities, education, and religious training (outside of

universities and other facilities of university degree):

1. Nature and form of the general education system – pre-defined, or ordered constitutionally, public and private schools;

2. Public school: a) nature- may a public school be a lay facility (neutral in religion),

or are public religious schools allowable; b) religious training in a public school, and the system of such school

– is religious training allowable, prohibited, or obligatory? what options must or can be offered to religious minorities or non- believers (out-of-class study groups albeit recognised by the school, ethics classes, religion studies); curriculum time allocated to religious training (time of classes – at the beginning or end of the school day, or between other classes; person responsible for defining the curriculum content – should school authorities have right of access or control); form of religion teachers selection and appointment (who shall nominate, who shall pay salaries and other benefits, shall a religion teacher have the right to hold other positions, and to what extent shall he/she participate in other decisions made by school authorities with regard to a particular student, shall a person of cloth be the religion teacher?); form of giving marks in religion (shall such grades influence promotion, manner of recognising marks in religion on annual report forms);

c) teaching religion in public schools vs. students' rights – shall religious training classes be obligatory, form of making the choice (positive or negative declarations; right to remain silent);

d) prayer at school – shall common prayer be allowable, prohibited, or obligatory; who shall have the right to decide on the issue; nature of prayer (whether obligatory, whether ecumenical; what options shall be provided to religious minorities or non – believers);

TOPICS

503

e) the crucifix at school – shall the presence of a cross at school be allowable, prohibited, or obligatory; who shall have the right to decide on the issue, who shall have the right of objection; the recognisability of the difference between the cross and the crucifix;

f) wearing and exposing religious symbols by students – extent of control by the school, premises for and possibility of introducing restrictions or prohibition.

3. Private school: a) private vs. religious schools - is there a legal difference? if yes, to

what extent shall it be permissible to grant special position to schools with connections to religious communities;

b) founding and operating private schools – state control and influence over the organisation and curricula (association contact); school’s freedom in terms of recruiting future students and defining the criteria of acceptance; forms of recognition for diplomas, or final examinations;

c) state funding of private schools – whether allowable, prohibited, or obligatory; scope, form, and beneficiaries of potential state support; issue of indirect funding – scholarships, school textbooks, etc.; ability of the state to set conditions in the area of the curriculum or teacher qualifications;

d) private school teachers – school’s freedom of choice in terms of recruitment, teacher’s obligation to maintain distance, right to terminate the employment contract in case of the teacher disrespecting the nature of the school (or for out – of- class reasons – such as divorce).

4. Church universities/faculties of theology: a) theological faculties in state universities


VI. Possible deviations of facts according to norms


I. Provide reference list of court decisions related to the matters under

A and B

II. Provide reference list of laws related to the matters under a and b

TOPICS

504

III. EU law 1. Relevance of EU norms 2. Relevance of European Convention of Human Rights and the decisions of

the European Court of Human Rights

IV. European values as foundation for dialogue between European Union and Churches and Religious Communities and for interreligious

dialogue.

V. Positive exsperience of European Union member states in establishing and maintaining the dialogue with religious communities.

VI. Constitutive elements of the open, permanent and transparent

dialogue with religious communities.

VII. Possible elements for the Protocol on the dialogue between the European Union and Churches and Religious Communities.

VIII. The role of European Union in enabling and supporting the

interreligious dialogue in and outside of European Union. 2. ADMINISTRATIVE AND FINANCIAL MATTERS IN THE AREA

OF RELIGIOUS FREEDOM AND RELIGIOUS COMMUNITIES

I. Information about state agency or ministry in your country competent for churches and religious communities; its competences;

number of employees; annual budget.

II. Legislation related to religious freedom and religious communities accepted after 1990- list of laws on religious freedom and agreements

between state and religious communities. III. Government's plans for changing legislation in this field (drafts of

acts).


programmes.

TOPICS

505

V. The most important tax reductions related to religious communities and donators; legislation which determines taxation of religious

communities and donations.

VI. Experiences with implementing and executing legislation (list of registered religious communities, state financial support for activities of

churches and religious communities) Table: STATE FINANCIAL SUPPORT FOR ACTIVITIES OF CHURCHES AND RELIGIOUS COMMUNITIES

AMOUNT OF ALLOCATION IN THE YEAR…

LEGAL ACT AND ARTICLE

AIM

MAIN CHURCH OR RELIGIOUS COMMUNITY

OTHER CHURCHES AND RELIGIOUS COMMUNITIES

salaries for teachers of religion in public schools

salaries for chaplains in prisons, hospitals and army

social work social insurance and

salaries of priests

protection and reconstruction of the sacral monuments

cultural activities charitable activities health activities educational activities religious objects other VII. Eventual church tax and its total amount in 2003, 2004, 2005, 2006.


to churches (if available).

506

THÈMES DE LA CONFÉRENCE “LES ASPECTS JURIDIQUES DE LA LIBERTÉ

CONFESSIONNELLE"

1. LA JURISPRUDENCE CONSTITUTIONNELLE EN MATIÈRE DE LIBERTÉ DE RELIGION ET DE

CROYANCE A. STATUT DE L’INDIVIDU

I. L’essence et le contenu des libertés religieuses (de religion) et de la liberté de conscience

1. La liberté de conscience (liberté de se définir au regard des actes traduisant

les convictions de l’homme, y compris ses convictions religieuses); 2. La liberté du culte religieux (liberté de manifester ses convictions et liberté

de n’avoir pas à subir les contraintes extérieures); 3. Les sujets de la liberté de religion et de conscience; 4. La liberté de l’église institutionnelle (formation et solution autonomes de

ses problèmes; personnalité juridique des églises et des communautés religieuses et leurs unités d’organisation; possibilité d’édifier leur structure extérieure; droits patrimoniaux des églises et des communautés religieuses);

II. La protection des valeurs religieuses en tant que droits fondamentaux de l’homme dans la jurisprudence des tribunaux

constitutionnels, d’après les exemples choisis

1. La protection des valeurs religieuses dans le droit statué (national); 2. La protection des croyants contre la discrimination pour les convictions

religieuses; 3. La motivation religieuse de certaines activités pragmatiques

professionnelles (codes déontologiques, etc.); 4. Le droit à la manifestation de ses sentiments religieux; 5. La protection des sentiments religieux:

a) protection des symboles religieux; b) usage de symboles religieux dans les lieux publics; c) usage de symboles religieux dans les administrations publiques, les tribunaux, les écoles, etc.

THÈMES

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d) inviolabilité des églises, chapelles, cimetières et autres lieux de culte; e) respect des sentiments religieux dans les média, f) définition des symboles religieux (Burka, etc).

6. La protection des valeurs religieuses dans les rapports religieux et à l’égard de la famille, notamment: a) la protection du mariage confessionnel et de la famille; b) les effets en droit civil des mariages confessionnels; c) les divorces. La reconnaissance des effets en droit civil des jugements des juridictions ecclésiastiques prononçant la nullité du mariage; d) le droit des père et mère à éduquer leurs enfants conformément à leurs convictions morales et religieuses;

7. La liberté de s’organiser au sein des églises et la liberté d’exercice public du culte; 8. Le droit de sanctifier et de célébrer les fêtes religieuses.

III. La liberté de conscience et de religion dans des situations spéciales:

1. L’aumônerie militaire; 2. L’aumônerie et l’assistance religieuse dans les établissements

pénitentiaires, éducatifs, resocialisants et autres; 3. L’assistance religieuse aux malades.

IV. Protection des données et données sur la démographie religieuse – programmes relatifs à la question de l’affiliation religieuse dans le

cadre du recensement 2011.

B. STATUT DES COMMUNAUTÉS RELIGIEUSES

I. Les communautés religieuses et l’État : modèle général de relations constitutionnelles

1. La définition constitutionnelle du modèle de relations (religion d’État, État

neutre, État laïc, autres définitions). Les modalités et l’étendue de sa mise au point dans la jurisprudence constitutionnelle;

2. Le mode de règlement des rapports entre l’État et les communautés religieuses (lois définissant le contenu général des rapports de l’État et des communautés religieuses; lois spéciales concernant les différentes églises et communautés religieuses – garanties de l’influence des églises sur le processus d’édiction de ces lois; accords entre l’État et les différentes églises ou communautés religieuses, leur force obligatoire et, le cas échéant, leur place dans le système du droit en vigueur, concordats, leur place dans le système du droit, mode d’interprétation);

THÈMES

508

3. Le principe de l’égalité des religions (le principe de l’égalité des citoyens et l’interdiction de la discrimination religieuse concerne-t-il, et dans quelle mesure, la position des églises et des communautés religieuses; l’égalité et l’égalité en droit – égalité ou égalité proportionnelle des chances ?) ; égalité dans le système d’une religion dominante de fait – la discrimination positive est-elle admissible ?

II. La liberté de la création et de l’activité des communautés religieuses

1. La création d’églises et de communautés religieuses (ces deux notions

existent-elles et sont-elles différentes ?) et la reconnaissance de l’existence des églises et des communautés religieuses par l’État. Le champ de contrôle de l’État, problèmes des sectes et de la définition de leur statut ;

2. La reconnaissance par l’État de l’existence des églises et des communautés religieuses – la reconnaissance est-elle légalement exigée ; le système de reconnaissance – enregistrement, inscription, notification ; signification juridique de la reconnaissance de la communauté religieuse – les communautés religieuses reconnues ont-elles droit à des privilèges déterminés ou à une position spéciale à l’égard des associations « régulières » ;

3. Le contrôle exercé par l’État sur l’activité des communautés religieuses – problème du champ et des domaines de l’ingérence admissible (protection de l’ordre légal général, contrôle des finances et protection des rapports de droit civil, protection des droits des tiers) ;

4. Les communautés religieuses et la liberté d’investiture des fonctions ecclésiastiques – étendue des obligations envers l’État ;

5. L’État et le droit interne des communautés religieuses – modalités et champ d’application de ce droit par les organes de l’État ; les tribunaux d’État et le règlement des litiges au sein des communautés religieuses (en particulier des litiges patrimoniaux et, par conséquent, des organes internes de la communauté religieuse à rendre des décisions au nom de celle-ci, donc le problème de l’évaluation par l’État de la légalité de l’existence de ces organes à la lumière du droit interne de la communauté).

III, La coopération de l’État et des communautés religieuses

(accomodation)

1. Le principe général : est-ce que de la constitution résulte l’impératif de la stricte séparation de l’État et des communautés religieuses, ou bien la constitution admet-elle ou prévoit-elle diverses formes de coopération ; comment est interprété le silence de la constitution en la matière ;

THÈMES

509

2. Le financement des communautés religieuses par l’État est-il constitutionnellement admissible (distinction entre le financement direct et indirect, financement de la communauté religieuse et financement de la satisfaction des besoins des fidèles – v. IV. 3.c) ;

3. La protection et la promotion des valeurs religieuses par l’État et par le droit :

a) la protection active (le devoir, institué par le droit, des institutions publiques de protéger et de respecter les « valeurs chrétiennes » ; règlements d’ordre public concernant par ex. l’intensité de la circulation pendant les fêtes religieuses, etc.);

b) l’acceptation des symboles religieux dans les lieux publics (la crèche et la croix), les symboles religieux dans les administrations publiques (croix ou crucifix, serment religieux, concurrence de symboles de diverses religions);

c) l’interprétation des valeurs religieuses et celles de la culture générale (arbre de Noël comme symbole utilisé par les autorités publiques) et leur utilisation par l’État (invocation de Dieu sur les billets de banque, sur les plaques d’immatriculation des autos, etc.);

4. Les « fonctions publiques » confiées aux communautés religieuses (compétence accordée aux communautés religieuses en matière de mariage, de divorce, de tenue des actes de l’état civil – division des tâches, efficacité juridique des actes rendus suivant cette procédure, contrôle de l’État).

IV. Les communautés religieuses, l’enseignement et l’instruction

religieuse (hors les universités et autres écoles de ce niveau)

1. Le caractère et la forme du système scolaire en général – déterminé par la Constitution, enseignement public et privé;

2. L’école publique: a) doit-elle être laïque (religieusement neutre) ou peut-il y avoir des

écoles publiques confessionnelles ; b) l’instruction religieuse à l’école publique et le régime de l’école

sont-ils constitutionnellement admis, interdits ou imposés ; quelles options doivent ou peuvent être offertes aux fidèles des « petites » religions et aux incroyants (groupe d’étude hors d’école mais l’enseignement d’éthique ou de notions générales sur la religion) ; les heures d’instruction religieuse inclue au programme scolaire (au début ou à la fin des classes ou insérées entre les autres matières ; qui arrête le programme – les autorités scolaires ont-elles droit de regard ou de contrôle) ; la procédure de désignation et d’engagement des enseignants catéchètes (par qui sont-ils

THÈMES

510

nommés, qui paie leur rémunération et autres prestations, l’enseignement peut-il remplir d’autres devoirs et dans quelle mesure ont-ils le droit de participer à la prise par l’école de décisions concernant l’étudiant, cette instruction peut-elle être dispensée par un ecclésiastique) ; les notes d’instruction religieuse (ces notes ont-elles un impact sur les résultats de fin d’année scolaire, comment figurent-elles sur le certificat) ;

c) L’instruction religieuse à l’école publique et les droits de l’étudiant – cette instruction peut-elle être obligatoire, les modalités d’option (déclaration positive ou négative, droit de se taire);

d) La prière à l’école – la prière en commun est-elle admise, imposée ou interdite ; qui a le droit de décision en la matière ; le caractère de la prière (obligatoire, œcuménique, quelle options sont laissées aux petites religions et aux incroyants);

e) La croix à l’école est-elle obligatoire, imposée ou interdite ; qui a le droit de décision en la matière et qui a le droit de s’opposer ; fait-on une distinction entre la croix t le crucifix;

f) Le port et autre façon manifeste de présenter les symboles religieux par les étudiants – champ de contrôle, conditions et admissibilité de restrictions et d’interdictions.

3. L’école privée: b) Ecoles privées et écoles confessionnelles - y a-t-il une différence

juridique entre elles, et dans l’affirmative, dans quelle mesure est-il possible de conférer une position particulière aux écoles liées aux communautés religieuses;

c) La création et l’activité des écoles privées – contrôle et influence de l’État sur leur organisation et programme (contrats d’association) ; liberté de l’école dans le recrutement des élèves et l’établissement des critères d’admission (situation des étudiants qui sont d’une autre religion);

d) Le financement des écoles privées par l’État – est-il admis, imposé ou interdit ; étendue, formes et destinataires de l’aide admissible de l’État ; problème de financement indirect – bourses, manuels, etc. ; possibilités de l’État de poser des conditions concernant le programme, les aptitudes des enseignants ;

e) Les enseignants des écoles privées – liberté de recrutement par l’école, la faculté de licenciement de l’enseignant qui ne respecte pas le caractère de l’école (ou en raison de sa conduite dans la vie privée, par ex. le divorce).

4. Les universités religieuses/les facultés de théologie: a) Facultés de théologie dans les universités publiques

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511

V. Restitution du patrimoine

VI. Possibles déviations des faits par rapport aux normes C. LA LÉGISLATION ET LE DIALOGUE ENTRE L’UNION EUROPÉENNE ET LES ÉGLISES ET LES COMMUNAUTÉS RELIGIEUSES I. Fournir une liste de référence des décisions de justice concernant les

points A et B II. Fournir une liste de référence des législations relatives aux points A

et B

III. Législation européenne 1. Importance des normes européennes 2. Importance de la Convention européenne des droits de l’homme et les

décisions de la Cour européenne des droits de l’homme

IV. Les valeurs européennes comme base de dialogue entre l’Union européenne et les églises et les communautés religieuses, et comme base

de dialogue interreligieux.

V. L’expérience positive des États membres de l’Union européenne dans l’établissement et le maintien du dialogue avec les communautés

religieuses.

VI. Les éléments constitutifs du dialogue transparent, permanent et ouvert avec les communautés religieuses.

VII. Les éléments possibles du Protocole relatif au dialogue entre

l’Union européenne et l’église et les communautés religieuses.

VIII. Le rôle de l’Union européenne dans la création de conditions favorables et le soutien au dialogue interreligieux à l’intérieur et à

l’extérieur de l’Union européenne.

THÈMES

512

2. QUESTIONS ADMINISTRATIVES ET FINANCIÈRES DANS LE DOMAINE DE LA LIBERTÉ DE RELIGION ET

DES COMMUNAUTÉS RELIGIEUSES

I. Informations concernant les instituts publics et les ministères

compétents pour les églises et les communautés religieuses dans votre pays; leurs compétences; le nombre des employés; leur budget annuel.

II. Législation se rapportant à la liberté de religion et aux communautés

religieuses adoptées après 1990- liste des lois relatives à la liberté de religion et des accords entre l’État et les communautés religieuses.

III. Programme gouvernemental visant à modifier la législation dans ce

domaine (projets de loi).

IV. Activités éducatives des églises et des communautés religieuses ; nombre des écoles et des universités établies par des églises et des

communautés religieuses, nombre des étudiants suivant leurs programmes.

V. Principal allègement fiscal concernant les communautés religieuses

et les donateurs ; législation déterminant la fiscalité imposée aux communautés religieuses et aux donations.

VI. Expériences se rapportant à la mise en œuvre et à l’exécution de la

législation (liste des communautés religieuses enregistrées, aide financière publique destinée aux activités des églises et des

communautés religieuses)

THÈMES

513

Tableau: AIDE FINANCIÈRE PUBLIQUES DÉSTINÉES AUX ACTIVITÉS DES ÉGLISES ET DES COMMUNAUTÉS RELIGIEUSES

MONTANT ANNUEL DE LA DOTATION…

LOI ET ARTICLE

OBJECTIF

PRINCIPALE ÉGLISE ET COMMUNAUTÉ RELIGIEUSE

AUTRES ÉGLISES ET COMMUNAUTÉS RELIGIEUSES

Rémunérations des enseignants catéchètes dans les écoles publiques

Rémunération des aumôniers dans les prisons, les hôpitaux et l’armée

Travail social Assurance sociale et

rémunération des prêtes

Protection et reconstruction des monuments sacrés

Activités culturelles Activités caritatives Activités sanitaires Activités éducatives Objets religieux divers

VII. Taxe éventuelle imposée aux églises et son montant total en 2003, 2004, 2005 et 2006.

VIII. Pourcentage de l’impôt sur le revenu qui pourrait être attribué, par les contribuables, à des communautés religieuses déterminées (si

cette possibilité existe); les montants totaux en 2003, 2004, 2005 et2006 et la répartition par église (si disponible).