May 19, 2014
This guest post was written by Lieselot Verdonck. Lieselot is a Ph.D. Candidate at the Human Rights Centre, Faculty of Law of Ghent University. More information on the author can be found here.
The relationship between State and Church has always drawn much interest. It constitutes an inherently sensitive and political issue, which touches upon one of the foundations of a democratic society and concerns any member of that society, whether religious, atheist or agnostic. Accordingly, the European Court of Human Rights inevitably has to face cases concerning the foundational issue of Church-State relations, such as in Magyar Keresztény Mennonita Egyház & Others v. Hungary. The Court’s decision in this case is, however, remarkable for its general and far-reaching statements that leave not only scholars but also governments guessing about their future application.
Like many former Soviet States the Church-State relationship in Hungary is peculiar due to its political history. Following the collapse of the communist regime, the government enacted a law under which any religious community with membership exceeding 100 persons could be recognized as a church, receiving certain benefits such as preferential financial treatment. Due to the lenient policy of recognition, churches have been mushrooming in Hungary during the last two decades. In response to this development, the government amended its legislation.
The Church Act of 2011 introduced a two-tier system: certain religious communities were automatically recognized, while others could apply for recognition to the Parliament provided that certain criteria were met. Religious communities not recognized as ‘churches’ could continue to function as ‘associations carrying out religious activities’. The impact of the Church Act of 2011 was immense. Not only did religious communities, such as the applicants in the present case, lose their former official recognition as churches, but also the various benefits attached to that status.
Following a partial finding of unconstitutionality by the Hungarian Constitutional Court, a new law was adopted. The Church Act of 2013 allowed religious communities, such as the applicants, to continue to refer to themselves as ‘churches’. In order to enjoy the monetary and fiscal advantages, however, they still needed to apply to Parliament in order to be registered as an ‘incorporated church’. Such registration required proof of international existence for 100 years or presence in Hungary in an organised manner for 20 years – which was hard given the only recent collapse of the communist regime. In addition, there was a membership requirement and the community had to demonstrate its intention and ability to cooperate with the State for public interest goals.
In its judgment the European Court found a violation of Articles 9 and 11 of the Convention. The Court first summarily accepted that the de-registration and subsequent requirement for re-registration in order to continue to receive certain privileges constituted an interference with the applicants’ rights, but was prescribed by law and pursued a legitimate aim. The Court thus mainly had to assess whether the interference was necessary in a democratic society.
The Court began by noting that although “the States have a certain margin of appreciation in this field, this cannot extend to a total deference to the national assessment of religions and religious organisations” [emphasis added] (§89). Subsequently, the Court highlighted the main issue that would guide its analysis: although religious communities do not have a right to be granted a specific legal status under public law, any distinction in the actual status granted to different religious communities may not portray their adherents in an unfavourable light in public opinion, as this would have an impact on those communities’ organisation and thereby on the practice of religion: “The Court cannot overlook the risk that the adherent of a religion may feel no more than tolerated – but not welcome (…)” (§94). Throughout the judgment the Court’s analysis regularly took account of the subjective feelings of members of religious minorities.
In the case under examination, the Court identified two sources of concern: the very fact of de-registration and re-registration and the attached privileges, subsidies and donations.
As regards the de-registration, the Court agreed that although the communities were formally able to re-register as incorporated churches, this was insufficient. First, the Government had not demonstrated that less drastic solutions, such as judicial control or dissolution of churches proven to be of an abusive character, were not available. Second, the two-tier system did not belong to Hungary’s historical-constitutional tradition nor predated the State’s ratification of the Convention. Third, in order to (re-)register religious communities had to apply to the Parliament, a procedure that risks to result in politicized decision-making.
As regards the material advantages, the Court recalled that subsidies granted in a different manner to various religious communities call for the strictest scrutiny: States may not discriminate and any decision to cooperate with particular communities must be based upon ascertainable criteria. In this regard, whereas the prescription of a reasonable period might be necessary in the case of newly established and unknown religious groups, the Court concluded that the requirements imposed by the Hungarian government were excessive in light of the country’s history of communism.
Finally, the Court clarified that any discrimination in relation to privileges that are granted to churches in order to support faith-related activities “imposes a burden on believers of smaller religious communities without an objective and justifiable reason” (§112). Accordingly, the government’s arguments that the recognition as an ‘incorporated church’ did not affect the various rights surrounding the freedom of religion nor the applicants’ legal personality, were rejected.
Judge Spano dissented and was joined by Judge Raimondi, as they could not agree with the decision to examine the case under Articles 9 and 11. The case should have been subjected to an individual examination of the existence of discrimination under Article 14 in conjunction with Articles 9 and 11. According to the dissenting judges, Hungary had not interfered in any way with the legal personality status of the applicants, as re-registration was only necessary to enjoy the enhanced status of ‘incorporated church’. The subjective feelings of the adherents of a religious community on account of its less favourable treatment by the State are immaterial for the purposes of Articles 9 and 11 as long as they are unimpeded in manifesting their religious beliefs.
The Court’s judgment in Magyar Keresztény Mennonita Egyház v. Hungary arguably raises more questions than it answers. The problem does not necessarily relate to its outcome, but rather to the Court’s reasoning. In its analysis under Articles 9 and 11 of the Convention, the Court – perhaps unknowingly – adopted very general statements the application of which to future cases remains at best unsure. One of these findings is the following:
“(…) the decision on recognition of incorporated churches lies with Parliament, an eminently political body, which needs to adopt those decisions with a two-thirds majority. (…) In this manner, the granting or refusal of church recognition may be related to political events or situations. This scheme inherently carries with it the disregard of neutrality and the peril of arbitrariness. A situation in which religious communities are reduced to courting political parties for their favourable votes is irreconcilable with the State’s neutrality requisite in this field.” [emphasis added] (§102)
In its conclusion, the Court again underscores its wary position vis-à-vis the “politically tainted re-registration procedure, whose justification is open to doubt as such” [emphasis added] (§115). These statements suggest that the official recognition of churches, resulting in a specific status under public law, can never be adopted by “an eminently political body”, such as a parliament. Does this entail that none of the Member States of the Council of Europe can reform their current State-Church relations through a political decision? After all, such reform would no longer enjoy the more lenient approach of the Court towards Church-State relations that originate in a country’s “historical-constitutional traditions”. It is quite hard, if not impossible, to imagine any reform that would not result from a political decision, precisely because of the inherently political nature of the relationship between State and Church.
The Court clearly did not consider the consequences of its general holding on political decisions in relation to freedom of religion, nor in relation to any other case that relates to the rights of minorities. After all, minorities are always in a disadvantageous position vis-à-vis the majority in case of decisions touching upon an issue that characterizes their distinctiveness. Consequently, such decisions will rarely be truly neutral and free from any risk of arbitrariness. Identifying the political decision in and of itself as problematic from a human rights perspective is thus simply impracticable. Instead, what the Court should have done is setting objective criteria to determine whether political decisions are discriminatory or unreasonable. This should have been followed by a more individualized examination of the inequality at issue under Article 14 of the Convention, which the Court refused to do, because “the inequality of treatment (…) has been sufficiently taken into account in the above assessment that led to the finding of a violation of substantive Convention provisions” (§118).
This critical reading of the Court’s judgment does not proclaim that there are no interesting elements to be discovered in it at all. For instance, the judgment is very well aware of the collective dimension of religious freedom and of the importance of religious identity for individual self-determination. The various references to the subjective aspects of freedom of religion are unprecedented. However, these findings are overshadowed by the general feeling with which most readers will be left: “And now what?” This question is all the more pressing as States are likely to reconsider their relationships with churches in the nearby future given increased religious pluralism as well as economic crises that urge the government to make savings. Arguably, the only sensible thing to do is to pray for a referral to the Grand Chamber.