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A 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 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

CNRS Unistra Dres Gsrl

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