Liberty of Faith and Conscience

Church Affairs in Hungarian Legislation, Policy Study

ISTVÁN PÉTER DANKU
[Government of Hungary]

Abstract:
‘To mention Europe’s Christian roots implies indicating as well the residual sources of moral orientation, which is a factor of Europe's identity.’ [Joseph Ratzinger, Europe’s Crisis of Culture] This study will attempt to present the principles of the relationship between the State, religion and churches in the context of the secularised state of Hungary, which nevertheless has Christian traditions going back one thousand years. It will outline the background to the process of legislation and the specific measures of the Hungarian government. All of this is especially topical in Hungary, as the recently adopted Fundamental Law has made it necessary for the adoption of a new cardinal Act on the fundamental constitutional right of freedom of conscience and religion, and in connection with this the question of the status of churches.

Keywords: State, church, religious freedom, Christianity, constitution, legislation

1. Freedom of religion and conscience in Hungary

Among specialists in constitutio­nal law there is a widespread opinion that freedom of conscience and of religion is the original source of all rights to freedom.¹ In Hungary laws safeguarding religious freedom go back to the 16th century, and the Tordai Edictum of 1568 can be seen as the first guarantee of religious freedom in the Europe of that time. In the bourgeois Hungary that was conceived in the 1848 Revolution there was also legislation covering religious freedom under the category of so-called ‘recognised religious denominations’. After the Compromise of 1867 this category continued to be used.

In the laws on church policy of 1895, the exercise of citizens’ and political rights were made completely independent of membership of a religious denomination. The equality of recognised churches and denominations was strengthened, and Judaism became a recognised religion. In addition to this, the opportunity was created for the operation of recognised churches. These laws did not completely separate the Church and the State, however. Act IV of 1990 provided wide-ranging guarantees for freedom of conscience and religion, and for the creation of churches. Later, however, it became clear that the extremely open conditions concerning the foundation of churches also created opportunities for abuse of this fundamental right. Thus there has been illegitimate utilisation of state support intended for churches, and the registration of organisations as churches which in reality do not engage in faith-based activities. This has led to there being several hundred registered ‘churches’ in Hungary, the exact number of which it is not possible to know. These pseudo-churches cost the country several HUF billion every year in budget expenditure. ²

2. The principles set out in the new Fundamental Law

The National Avowal in the new Fundamental Law states that our king Saint Stephen made Hungary part of Christian Europe one thousand years ago. Our Fundamental Law recognises the role of Christianity in preserving nationhood, and values the various religious traditions of our country. Article VII in the ‘Freedom and Responsibility’ Chapter states that every person shall have the right to freedom of thought, conscience and religion. Hungary’s Fundamental Law guarantees the separation of Church and State, and in this connection autonomy of churches while at the same time acknowledging their cooperation in the achievement of community goals.³ Recently the plan for the new Fundamental Law was made public, and so we can briefly quote verbatim from passages which touch on the theme of this study:

The preamble contains the following:

‘We acknowledge the role of Christianity in preserving nationhood. We value the various religious traditions of our country’⁴

There is great significance in the fact that these concepts appear in the Fundamental Law. Similarly to several other European constitutions, the role of Christianity has an appropriate place, but the country’s other religious traditions also receive the recognition due to them.

Article VII of the Fundamental Law deals with the right to freedom of conscience and religion in detail, and with churches, as follows:
‘(1) Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other persuasion, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other persuasion by performing religious acts, ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life.
(2) The State and Churches shall be separate. Churches shall be autonomous. The State shall cooperate with the Churches for community goals.
(3) The detailed rules for Churches shall be regulated by a cardinal Act.’⁵

By international standards, the Fundamental Law seeks to provide extremely wide-ranging safeguards for the above constitutional rights. The new Fundamental Law also resolutely upholds the constitutional separation of Church and State. The State does not seek to isolate or marginalise the churches, and neither does it seek to distance itself from the churches. On the contrary, it clearly declares the need for cooperation in the achievement of community goals in the interest of the public good. The constitutional separation of State and Church therefore protects both the autonomy of the churches and the autonomy of the State.⁶

The preamble of the Fundamental Law sees churches as being bearers of values and creators of communities with outstanding importance for society. In addition to their faith-based activities, it regards their community activities and their promotion of national consciousness as playing a significant role in the life of the country, society and the nation. It separately recognises the continuously defining significance and outstanding role of the churches in the history and culture of Hungary.

3. Regulation of religious status in the new cardinal Act

3.1. General rules
‘All religions determine their dogmas themselves for their adherents, they should believe according to their persuasion, the State can have a say only in the political sphere.’ Ferenc Deák, ‘the Sage of the Nation’⁷

The Act widely ensures – both at individual and community levels – the right to freedom of conscience and religion. Society regards churches as outstandingly important creators of values and community. The new Fundamental Law continues to ensure the separation of State and Church, and therefore it ensures the autonomy of churches in this context, and it prescribes cooperation in the interest of community objectives.

The articles of the Fundamental Law also specify what the State – from a legislative viewpoint – means by the terms ‘church’ or ‘religious activity’.

(Religious activity: an activity related to a worldview which is directed toward the transcendental, relates to a system of faith-based principles, its doctrines are directed toward existence as a whole, and its beliefs embrace humanity as a whole with specific codes of behaviour which do not violate morality and human dignity.

The establishment of these principles, and the definition of minimum conditions which are important to protect the credibility of true churches, has been justified by the experience of the past twenty years, and awareness of the anomalous activities of pseudo-churches and ‘business’ churches.

Church: an autonomous organisation consisting of capable natural persons professing the same set of beliefs, resident in Hungary, possessing autonomous self-government, that operates primarily for the purpose of practising religious activities. In the application of this Act, religious systems of thought and religious communities will also be considered churches.)

The proposed Act specifies that it does not regard an activity in itself to be a religious activity if it is primarily based on one or more of the following: politics and advocacy; psychology or parapsychology; medicine; economics and business; education or higher education; healthcare; the provision of charity; family, child and youth welfare; culture; sport; animal welfare, natural or environmental protection; and data management activities which go beyond the core needs of a faith.⁸ In connection with this, it should be emphasised that this legislation does not go beyond its own remit, and does not seek to interfere in questions of theology. However, given that in Hungary the designation of ‘church’ confers special legal status (sui generis legal status), which is associated with broad privileges and significant support from public finances, these issues need to be determined in relation to churches and the State. In addition, in other Member States of the European Union, both in Western and Central Europe, there are numerous examples of similar issues being regulated, so the need to clarify the situation is not contrary to European practice.

The proposed Act still considers churches to be of equal legal status (having the same rights and obligations); however – in accordance with Constitutional Court practice currently in force – it declares that it can take into account churches’ actual social role and their public activities when creating further church legislation and when in contact with them. (For example, the public funding of church institutions providing public services is valid only in the case of those churches that have such institutions, or ecclesiastical estate planning law applies only to churches which had their properties seized by the State in the communist era. The enactment of this principle was also appropriate as a justification for further contacts only with those churches that are affected by the subject under discussion.)⁹

3.2 Registration of churches Court proceedings
On the basis of the conditions in the new legislation, there will be new court registration of churches. Registration will be centralised, and the Central Budapest Court will have exclusive jurisdiction, so only there can the process be initiated. This will provide unified direction of registration, which can be easily surveyed on an up-to-date basis. Until then they may fall into the category of organisations carrying out religious activities with the current legal status of churches. (This also guarantees to the maximum the community conditions of the practice of religion.) On this basis only the following are entitled to the acquisition of church status:
a) those primarily carrying out religious activities;
b) those with teachings centred on faith and associated rites;
c) those which have operated in Hungary in the form of an organisation as an association for at least twenty years, and have at least one thousand members who are natural persons resident in Hungary. The operation of a church before the enactment of this law will also count towards the time limits given;
d) basic regulations, deed of foundation, internal rules, organisational and operational rules or other appropriate rules have been accepted;
e) the organisation has chosen its administrative and representative bodies;
f) its members declare that the activity of the organisation created by them is not in conflict with the Fundamental Law or other legislation, and does not violate the rights or freedoms of others.

In addition to this, the proposed legislation defines in detail what documentation is needed for registration on the basis of the above conditions. For judgment of the registration application, or for judgment of the nature of the church requesting registration, the court shall seek the assistance of experts (e.g. theologians, church lawyers and church historians). (This is necessary, as a judge will not necessarily possess all the background information which will make clear the law’s implementation of the criteria on religious activities and churches. In the course of various contentious proceedings courts may avail themselves of the services of judicial experts for the determination of specialist questions. In this regard it should be emphasised that an expert only gives an opinion, and the decision is made by the court, which has independent powers, on the basis of the law and providing the right of legal redress. In the course of the procedure for registration of churches, the detailed rules for the summoning of experts – on the basis of the proposed legislation’s authorising stipulations – will be stated in a separate decree.)

The conditions for judgment on church status also make clear that the court proceedings are restricted to examination of only those objective criteria which prove that a given group is primarily carrying out religious activities, and has sufficient members with Hungarian citizenship. This will naturally not extend to examination of internal theological aspects of religious activity, and will not impair the internal autonomy of a church.

Registration via an official authority
Over the past twenty years it has become clear that the extremely open conditions concerning the foundation of churches also created opportunities for abuse of this fundamental right. Thus there has been illegitimate utilisation of state support intended for churches, and the registration of organisations as churches which in reality do not engage in faith-based activities. (At present several HUF billion in illegitimate public budget expenditure is diverted to a large number of pseudo-church bodies – organisations for the public good, foundations, and in certain cases organisations created by local governments and registered as churches; these institutions providing public services, mainly for social provision, have been set up as churches solely to gain the extra funds due to churches.) For this reason one of the most important aims of the proposed legislation is the filtering out of such organisations from the registration process for churches. This will not, however, adversely affect either those churches which have had a continuous and defining significance in Hungarian history and culture, or those smaller churches which perform public service activity in addition to religious activities, have signed agreements with the government and have either nationwide coverage or are part of world religions. For this reason these churches will be listed as having received court registration, initiated by the minister for church affairs. These churches will naturally operate on the basis of equal rights and legal continuity.

The churches in the appendix – at the request of the minister – will be registered by the court, and will not be subject to examination on the basis of the conditions in the legislation. (In several European states there are examples of the listing of churches with legal recognition, e.g. Romanian and Slovakian church legislation, or Austria, which defines the state administrative procedure for church recognition and registration.)

3. 3. Other measures
• The proposed legislation guarantees the possibility for churches to provide public services, and churches and their institutions carrying out similar activities to state and local government institutions will receive the same level of financing.

• The proposed legislation seeks to guarantee that churches can provide religious education in state-maintained educational institutions, and may carry out faith-based activities in higher education institutions, and shall benefit from state support. The conditions for military, prison and hospital pastoral services are similarly defined.

• The proposed legislation regulates church economic management, determining the conditions for oversight of state support, paying respect to church autonomy. Churches, especially church ceremonies and the undisturbed operation of church governance, religious buildings, cemeteries and other sacred places, and the naming of churches, their iconography, their order of ceremonies and their publicly recognised names will receive heightened legal protection. Church officials will receive increased legal protection.

• The proposed legislation contains transitional measures on the solution to problems relating to social and child protection institutions arising from the amendment in force from 1 July 2011. On the basis of this, the twelve churches listed in Appendix 2 – which also feature in the notes forming part of Appendix 1 – will continue to receive supplementary funding. From 1 January 2012 the condition on church maintenance in the area of the system of social provision is in compliance with the new church legislation.

The fundamental rules of the new law will come into force on 1 January 2012 – together with the Fundamental Law.

3.4. International connections
The Treaty on the European Union and the preamble of the Lisbon Treaty, which is about the amendment of the treaty on the creation of the European Community, draws inspiration from the cultural, religious and humanist legacy of Europe, which expounds the inviolable and inalienable rights of mankind. Article 17 of the Treaty on the operation of the European Union leaves religious regulation under national jurisdiction, but at the same time calls for an open, transparent and regular dialogue between the European Union and religious communities. The proposed Act takes into account the European Convention on Human Rights adopted by the Council of Europe, the Charter of Fundamental Rights and OSCE recommendations.

These recommendations were taken into account by the legislature during both the development of the legal environment of religious status and the creation of schedules. Following the creation of new legal relations, the open, transparent and regular dialogue with churches encouraged by the European Union may continue following the adoption of the new Act. In accordance with this, new possibilities for state-church cooperation will open up, in line with the new social challenges of the 21st century. Also a part of the dialogue is that the law provides special opportunities for churches in the field of their community tasks, respecting the principle of equal funding.¹⁰

Conclusion

Commitment to the secular state, the most important principle of the Christian tradition and the Enlightenment, is reflected in the Fundamental law – which lists the interests and goals related to the functioning of society and the principles and rules concerning the internal regulation of the State, and which ranks highest among the sources of law – and the so-called cardinal Acts. The latter widely – both at individual and community levels – ensure the right to freedom of conscience and religion and regard churches as value and community creating aspects of outstanding importance. Ultimately, it can be stated that Hungarian legislation continues to ensure the separation of State and Church – therefore it ensures the autonomy of the Church in this context – and it ordains cooperation in the interest of community objectives. All in all, it includes Christian traditions dating back to Saint Stephen into the fundamental ideological framework of legislation determining social behaviour.

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NOTE

ISTVÁN PÉTER DANKU – Political Advisor, Executive for International Relations at the Ministry of Public Administration and Justice - Office of the Minister of State for Government Communication in Budapest, Hungary.

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