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General overview

The neutrality of the State

Neutrality can be seen as the most important principle governing the Hungarian state in its relationship with the religious communities as well as with other ideologies. The state should remain (...)

Neutrality can be seen as the most important principle governing the Hungarian state in its relationship with the religious communities as well as with other ideologies. The state should remain neutral in matters concerning ideology; there should be no official ideology, be it religious or secular. Neutrality means on the one hand that the state should not identify with any ideology (or religion), and consequently on the other hand that it must not be institutionally attached to churches or to one single church. This shows that the underlying doctrine behind the principle of separation (explicitly stated in the Constitution) is the neutrality of the state. It is to be noted that neutrality has to be distinguished from indifference, which is not meant by the Constitution – as follows from the concept of neutrality elaborated by the Constitutional Court. Neutrality is not “laicism”. The state may have an active role in providing an institutional legal framework as well as funds for the churches to ensure the free exercise of religion in practice; “from the right to freedom of religion, follows the State’s duty to ensure the possibility of free formation of personal convictions” (Decision 4/1993. II. 12. Hungarian Constitutional Court). The state should not enter into institutional entanglement with any organisation that is based on a (religious- or secular) ideology. Freedom of religion and freedom from religion are equally protected – neither case should be treated as an exception. All public institutions are bound by the principle of neutrality: the state shall not maintain non-neutral institutions (like schools, theological faculties); church institutions, however enjoy public funding.

The meaning of separation can be defined on the one hand as respecting the autonomy (or self-determination) of the churches (“the State must not interfere with the internal workings of any church” (Decision 4/1993. II. 12. Hungarian Constitutional Court), and, on the other hand, by the principle stated in the law on religious freedom: “no state pressure may be applied in the interest of enforcing the internal laws and rules of a church.” ( Act IV/1990. section 15). Religious communities should have no possibility of making use of state power. In the relation between the individual and his church, the state shall play no role.

In comparison with other European countries, the Hungarian system seems to show the greatest similarities with the Italian-Spanish pattern. The separation – especially institutional separation – between church and state in Hungary is definitely stricter than in the “coordination model” of Germany, but the Hungarian state provides favourable conditions for church activities and public funds to a much greater degree than in the case of “laïque” France. The Hungarian model that emerged in the 1990’s can be described as a benevolent separation, respecting religious freedom, the freedom of the churches, enhancing their activities, and open to cooperation for the common good – especially in the field of public services.

D 20 September 2012    ABalázs Schanda

The new Fundamental Law of January 2012

On January 1, 2012 a new constitution – the Fundamental Law – takes effect in Hungary. As at the transition to democracy in 1989/1990 no new constitution was elaborated, the constitution currently (...)

On January 1, 2012 a new constitution – the Fundamental Law – takes effect in Hungary. As at the transition to democracy in 1989/1990 no new constitution was elaborated, the constitution currently in force is a result of the revision of the communist constitution of 1949.

As a consequence of the landslide victory of the center-to-right coalition that got over 2/3rd of the mandates at the parliamentary elections in 2010, the adoption of a new constitution could become a realistic – in a paradoxical way, finding arguments for not adopting a new constitution would have been more difficult than taking the challenge. The drafting process had two phases: a parliamentary commission has elaborated a concept by December 2010, followed by a draft elaborated by the Government. Whereas in the first part a wide range of experts and institutions were consulted, the final draft was made by a small group of experts. Sensitive changes to the draft came up even in the last days before the final vote.

It has to be acknowledged, that this law is the first structured constitution of Hungary, which was passed by a democratically elected parliament. The wording suggests that the Constitution should be more than just the Fundamental Law: besides the Fundamental Law, a set of organic laws and the constitutional tradition make out the Constitution.

The preamble contains an acknowledgement of the role of Christianity in upholding the nation. This is on the one hand the acknowledgement of a historical fact, on the other hand it is not the religious content of Christianity that is endorsed, but its role in forming the nation – the declaration is descriptive, not prescriptive. The preamble also provides for respect to the various religious traditions of the country. (“We recognize the role of Christianity in preserving nationhood. We value the various religious traditions of our country.”)

The Fundamental Law begins and ends with mentioning God, but this is done in a peculiar way. The very first words of the preamble are a quote of the national anthem (“God bless the Hungarians”), a poem from 1823 that has been the anthem even during the communist time. Certainly the anthem is also sung sometimes at the end of church services, and in this context it bears a religious content. At soccer games or other public events probably many Hungarians singing it (or listening to it) do not have religious feelings. This way the national anthem is the manifestation of patriotism, with a text that is deeply rooted in the national culture. At the very end of the Law there is a solemn declaration reminding to the wording of the preamble of the Basic Law of Germany, referring to the awareness of the members of parliament passing the Fundamental Law to their responsibility before God and man.

The article on religious freedom is not subject to changes (the present subsections (1) and (2) of § 60 remain in force as section (1) of the new Article VII). The formula on the relation between church and state will get a new wording and some new content. Besides a declaration on the separation of church and state a separate sentence provides for the autonomy of churches and contains the declaration that “The State shall cooperate with the Churches for community goals.”

The detailed rules for churches (religious communities) shall be regulated by a cardinal (organic) act. This act should be passed and can be modified only by a 2/3rd majority of the members of parliament present at the voting. The new act that should replace Act IV of the year 1990 should be passed later this year and enter into force with the new Fundamental Law. At the present stage of the drafting procedure, a two-tier system is envisaged with religious associations as base-level entities, and a special recognition to traditional religious communities. Certainly, differentiation can only apply to certain aspects of cooperation between church and state not with regard to religious liberty.

D 20 September 2012    ABalázs Schanda

A new law on religious freedom (Act CCVI/2011)

The liberal legislation of 1990 on religious freedom (passed in one of the last sessions of the last communist parliament) proved to be a safeguard for religious freedom for two decades. Since (...)

The liberal legislation of 1990 on religious freedom (passed in one of the last sessions of the last communist parliament) proved to be a safeguard for religious freedom for two decades. Since its adoption, hoewever, some of its elements – first of all the easy registration of religious communities granting a wide autonomy and financial benefits without any scrutiny and hardly any control – were repeatedly criticised. None of the attempts to change the law ever gained the necessary majority. As the 2010 parliamentary elections have brought a landslide victory to a centre-to-right coalition the qualified majority for changing the law was given.

Following the new constitution (adopted in April 2011) Parliament passed the new law on churches that was to enter into force on January 1, 2012 replacing Act IV/1990, instead of merely changing the existing law.

Besides some general provisions on religious freedom the new law (law C/2011) foresaw a completely new system for the recognition of churches. As the 1990 law provided for an easy registration with a county court, the recognition under the new law required parliamentary decision passed by 2/3rd of the Parliament members upon a number of criteria.

The new Law included a list of 14 churches that do not need to renew registration (the Catholic Church, the Reformed Church, the Lutheran Church, five Orthodox Churches, the Baptist Church, the Unitarian Church, three Jewish communities and an Evangelical community, the Faith Church).

A number of petitioners claimed the unconstitutionality of the new law on churches for various reasons. Finally, just less than two weeks before the new law was to enter into force the Constitutional Court decided by 9 votes to 5 to abolish the new law stating its invalidity for formal reasons still before its provisions came into effect. The Court did not scrutinize the content of the law only decided on the basis of the formal requirements as the Parliament voted on the final version of the new law in a way that was violating the Standing Orders of the Parliament. (Decision 164/2011. [XII. 20.] AB)

The decision was pronounced at 10 AM on December 19, 2011. The Parliament, however, voted on the same day on the withdrawal of the new law, probably in order to avoid the embarrassment caused by the decision of the Constitutional Court (as the possible outcome of the procedure of the Constitutional Court became widely known before its proclamation). The law on the withdrawal was printed in the official gazette few hours before the decision of the Constitutional Court was printed – this way the law was both withdrawn (by the Parliament – Act CLXXIX/2011. § 241) and abolished (by the Constitutional Court).

The Parliament voted again on the bill on December 30 after a short debate. This way the new law (Act CCVI/2011) entered into force on January 1, 2012, the day originally foreseen. The final law is practically identical with the one adopted in July 2011 instead of original bill, but there are still some remarkable changes.

Recognition criteria were precisized in a way that religious associations can seek recognition if they have been functioning in Hungary for at least twenty years or if they represent a religion practiced internationally for at least a century. The request for recognition can be filed by the representative of the religious association with at least 1,000 supporters (not necessarily members – anyone could support the recognition of a new church). The request is transferred by the Human Rights Committee of the Parliament that may seek the expertise of the Hungarian Academy of Sciences. Parliament decides upon the bill of the Committee.
Internal entities of churches will be registered by the relevant government agencies instead of the court.

As from now, all other churches and religious communities will have a legal personality under the form of associations. The new system can be described as a two-tier system with on the one hand religious groups with the easily obtained status of association, on the other hand a small group of communities that benefit from a specific recognition.

The two-tier system benefits from constitutional protection by a special law on the transitional rules of the new Basic Law that protects the right of the Parliament to establish the criteria for the recognition of churches (Transitional Rules to the Basic Law, Art. 21). From a religious freedom perspective, it is not the two-tier system as such that may raise concern, but the political nature of the recognition procedure as there is no remedy against the decision of the Parliament denying a community the status, even if it fulfills the legal requirements .
If a church were to adopt an unconstitutional practice, the Parliament could withdraw the recognition after an opinion delivered by the Constitutional Court.

Recognized churches will enjoy a more protected legal status as before and their autonomy gets new emphasis. Newly formulated rights include wider rights in employment issues, the selection of church employees upon religious criteria, data protection, the protection of the names of churches against competing organizations etc.

The provisions that would safeguard the rights of religious associations are still missing. Religious associations are merely mentioned in the new law on civil associations (Act CLXXX/2011. § 95 a) stating that an association can have a primarily religious goal. Unlike the original provisions of Act C/2011 the final law does not ban other organizations from using the name "church". This way a religious association would be free to operate under the name "church".

In a number of practical issues, the legislator seemed to endorse the concerns minor religious communities in the final version of the new law. First of all Parliament will decide until February 29, 2012 on the requests of the communities that have filed their request for recognition (some 80 communities did so). Until the decision churches preserve their previous status – after it if recognized they will qualify as a church, if not, as an association (§ 34).

Agricultural land can only be owned by private individuals in Hungary, with the exception that church entities may inherit or receive land in course of donations. The first version of the new legislation caused concern with a farm run by ISKCON (International Society for Krishna Consciousness). The new law makes it clear that in the case when a church is turned to an association it carries on all the rights of the former church including the property rights of the land (§ 42).

Institutions of higher education for theology can be maintained churches. The Law on Higher Education lists 21 such institutions (plus five theological universities: one Catholic, two Reformed, one Lutheran and the Jewish Theological Seminary – Jewish University). A large number of accredited theological institutions are run by minor religious groups (Adventists, Methodists, Buddhists, ISKCON etc.). The new law on higher educations maintains both the legal and the financial status of all these institutions, irrespective the legal status of the religious organization behind the school (Act CCIV/2011 § 117 [5]). If/when some of these communities will not be recognized as a church and were to be forced to operate as associations in the future, the change in the legal status of the religious community would not infringe the status of their theological institutions.

The moment after the adoption of the new law is too early to provide balanced evaluation of the new system. Two-tier systems are quite common in Central Europe, where the Hungarian legislation with the highly formal registration of churches used to be unique. On the other hand, the new system with the parliamentary competence to recognize churches seems to be unique too. It is difficult to predict how generous the practice will be. The legal position of religious associations has just been modified. Consequently, the practical impact of the differences in the status of recognized churches and religious associations cannot be evaluated yet.

D 20 September 2012    ABalázs Schanda

The law on churches: legislation on the move

Successive agreements between the Hungarian State and churches, as well as legislation on faiths, were put in place during the government of Mr. Gyula Horn between 1994 and 1998. This legislation (...)

Successive agreements between the Hungarian State and churches, as well as legislation on faiths, were put in place during the government of Mr. Gyula Horn between 1994 and 1998. This legislation was criticised from the outset, because according to its critics, it does not respect the constitutional principle of separation of church and state which should exclude faiths from being subsidised from public funds. According to the Alliance of Free Democrats (SzDSz), the churches benefit from unjustified privileges. In spite of these protests, successive governments have wavered as regards modifying this legislation. It is in the area of funding for public church activities, in particular relating to schools, that governments have shown their disagreement with the Concordat of 1997. There have been many criticisms of the annual increase in subsidies granted to faiths and a lack of transparency in funding. In 2006, a Commission (in Hungarian) was created in order to examine “the results and effects” of the Agreement of 1997. It concluded that “it is not necessary to denounce this Agreement nor to withdraw from it”. However, everyone agreed that the Agreement and the legislation were outdated and had shortcomings. For example, there is no guarantee regarding its application (cf. lack of funding for school or social establishments dependant on faiths); in addition, points relating to the funding of cultural establishments (libraries, archives etc.) lack precision.

Thereafter, negotiations with the churches on amendments to the agreements began within the context of the new Fundamental Law of Hungary promulgated on 1 January 2012. The Agreement signed with the Vatican was a key document for legislation on churches, so we will examine some of the major amendments introduced by this text (in English) which was signed on 21 October 2013 and ratified on 10 February 2014.

Added to ch. I, art. 2 (of the text of 1997) is that the government is committed to guaranteeing catechists - whether within the ecclesiastical context or in state schools - an income equivalent to the average wage of Hungarian teachers and to grant a subsidy for catechesis or ethics textbooks. Ch. I, art. 3 is replaced. There we find, inter alia, the following items: the number of non-theologian scholarship holders in establishments of higher education managed by the church is fixed in such a manner that it reaches five percent of the total number of scholarship holders in national higher education. The government and the CEH will have to deliberate every 4 years on the number of students per faculty who can benefit from such scholarships. As for boarding schools and student hostels dependent on the church , the Hungarian State commits to granting them the same subsidies as to the institutions that it administers itself. With regard to specific annual subsidies (development, research, etc.) for non-theological teaching, they cannot amount to less than 7.5 billion Forint (HUF). The State recognises the Pazmany Péter Catholic University to be a university of excellence, recognised by the Holy See. It guarantees a scholarship for 2,500 theology students in Catholic higher education establishments. Ch. I, art. 4 is replaced. According to the new text, properties belonging to the Catholic Church will receive the same “cultural subsidies” as state-owned properties. This relates to the safeguarding and restoration of monuments, museums, archives etc. Ch. I is supplemented by an article on the donation made by the government to the church of the premises of Palazzo Falconeri (Rome) and to the Hungarian pontifical institute for the training of priests . Ch. II, art. 4 is partly replaced. The new text states that the Hungarian State maintains the possibility for private individuals to give one percent of income tax (IR) to the church of their choice. In addition, the state guarantees the churches one percent of the totality of IR, even if the citizens have given less. Ch. II, art. 2 is replaced. As a result, the revenue guaranteed by the Hungarian government for property assets not reclaimed by the church will be revalued each year to represent the change in the consumer price index. In addition, the state supplements income from property assets not reclaimed by the church, amounting to 54 million HUF in 2011.

The Fundamental Law of 2012 and Organic Laws (cf. Art. 7 no. 3) relating to churches have been rather favourable to the operation of 14 faiths (Reformed, Lutheran, three Jewish federations or communities, 5 Serbian Orthodox or Bulgarian, Rumanian and Russian dioceses or Exarchats linked to the Patriarchate of Constantinople, the Unitarian Church, the Baptist Church and the Faith Church). According to the website index.hu (in Hungarian), the representatives of the Reformed Church and Lutheran Church had reportedly intervened with governmental authorities so that the new law recognised the church status for all the principal religious groups and religious communities whose social services improve the collective fate of the most modest and of the excluded. This made it possible to include other religious groups (Methodist, Anglican, Buddhist or Muslim) in this list.
Following this change in legislation, around 20 faiths have presented a request before the European Court of Human Rights (see a detailed presentation of the issue by Balazs Schanda). Several Hungarian researchers state that there was misunderstanding at the Court as regards the new legislation in Hungary on recognition of the churches. Indeed, B. Schanda states that the legislation of 2011 on faiths did not abolish the registration of certain faiths, but introduced a new system, by cancelling registration of all faiths in order to introduce a new system on two levels with religious associations as basic entities and with specific recognition granted to certain churches, recognised as such by the National Assembly. Hungarian lawmakers affirmed that this new recognition is designed to make more transparent the use of the public funds granted to churches and to avoid the abusive use of subsidies, tax advantages etc. At the same time, it should be emphasised that the ECHR considered it incompatible with the neutrality of the state that the decision to grant recognition or not to a church is a matter for Parliament and relies on a majority of two-thirds of votes. Moreover, if lawmakers have highlighted criteria of recognition, such as how long a faith has existed or how many members it has, in reality few churches in Hungary do not fulfil these criteria (criteria considered anyway to be excessive, if we use the report by the “Venice Commission" as our basis).
One case would deserve more thorough reflexion today. It involves the Muslim community in Hungary. Indeed, even if if today the number of Muslims barely exceeds 20,000 people (mainly originating from Arab countries, Turkey, Iran and Bosnia), the presence of Islam had already been attested before the year 1000. Allies or occupiers, Muslims have for centuries erected buildings, places of worship, mosques and minarets. With the new legislation, Muslim communities have lost part of their state subsidies. However, in the current European context, beyond the issue of places of worship, the training of Muslim religious leaders has become a burning issue. Recognition for 14 churches, as we have seen, also ensures subsidies for the training of their leaders: clergy, theologians etc.
Today, after updated legislation on faiths and following the new Fundamental Law, the Hungarian government is seeking the “definitive” model for the relation between state and faiths. The current interpretation of the principle of secularity in Hungary does not exclude that churches be regarded as partners in the foreground of public life. However, the representatives of the major churches, in agreement with the Christian Democrat People’s Party (members of the coalition government), have protested against the possible adoption of the German model (in Hungarian) in which, despite there being a true partnership between churches and the state, the method of funding seems less favourable than that in force today in Hungary. The historical churches admit that because of the ECHR decision, the legislation on faiths needs amendment, but they are protesting against the creation of an entirely new law, especially without wide-ranging consultation with the churches. Today, there are two divergent ideas within the parliamentary majority: a) an entirely new law for churches will need to be created; b) it will be necessary to take into account the churches’ request not to introduce completely new legislation during the years to come (an idea backed by the Minister for Human Resources, Mr. Zoltan Balog (Calvinist Pastor and Theologian). The consultation started by the government continues with foreign governments so as to familiarise itself with models of legislation on faiths. The model in place today in Hungary resembles that adopted by Spain or Italy, with specific elements due to the historical situation of a post-Communist country. For those who worked on the legislation in the 1990’s, like Mr. Ivan Platthy (in Hungarian), former Secretary for Religious Affairs, there should be a return to the principles fixed in 1990 and the model to be chosen must be the “Hungarian model”.

D 23 February 2015    ARozalia Horvath

CNRS Unistra Dres Gsrl

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