Under the Fundamental Law of Hungary, the state and religious communities operate separately, and religious communities are autonomous. The latter is reinforced by the fact that the state may not operate or create a body for the management and supervision of religious communities. However, this separation does not preclude financial and other forms of state support for religious communities, nor even different levels of state support for different religious communities.[1]
Currently, according to the annex to the Churches Act (hereinafter referred to under the Hungarian abbreviation: Ehtv.)[2], there are 27 established churches. It is very important that the concept of a church, previously recognised by the National Assembly, is replaced in the current Fundamental Law by the concept of an established church, which primarily carries out religious activities, has internal rules, a creed and an independent rite, has at least one hundred years of international operation or has been operating in Hungary as an organised religious community for twenty years, and its members reach 0.1% of the population (according to the Act of 1990, the new Ehtv. (of 2011) no longer includes these criteria). Its doctrines and activities may not violate the right to physical and mental health, the protection of life and human dignity, and shall be free of any risk to national security. Today's Hungarian ecclesiastical regulatory principles mostly combine Austrian, Romanian and Czech multi-level recognition practices with a tightening of the former recognition criteria.[3]
The most attention-grabbing provisions of Act CCVI of 2011 relate to the registration of new churches, which is a radical break with the system in place since 1990. The main elements of the new system can be summarised as follows:
- an association (or a church under the previous act) that also carries out only religious activities may apply for registration as a church, i.e. a lower level of organisation-
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al framework for community religious practice is created under the church category, as a precursor to church status, and the definition of religious activity is contained in the act itself: "Religious community means any community of natural persons, irrespective of its organisational form, legal personality or name, which was established for the purpose of practicing religion and primarily performs religious activities." (Section 6 of the Ehtv.)
- registration in the popular initiative procedure is decided by the National Assembly on the basis of a proposal by the Parliamentary Committee on Religious Affairs. (Section 14 of the Ehtv.)
- the application for registration shall be accompanied by a very large amount of information (a statement of faith or a summary of the main religious doctrines, proof of at least 20 years of organised activity in Hungary, etc.), which is public.[4],[5]
It is clear that the diversity and different historical traditions of the European states make it impossible for them to settle the issue in a uniform way. What is more, neither European nor international law requires a separation of the two institutions, since this does not follow directly from the guarantee of an adequate level of freedom of conscience and religion. It is therefore clear that, whichever of the above categories is used to settle the problem of secularism, it does not violate the right to the free exercise of religion.[6]
As we have seen above, the state and the church in Hungary operate separately. The state may not establish a body for the governance and supervision of churches. The state must be neutral on issues of worldview. At the same time, separation and neutrality do not preclude the state from taking into account the characteristics of churches that distinguish them from other civil society organisations such as associations, advocacy bodies, etc. (basically, the defining character of religion), from cooperating with churches in their public benefit activities, and from supporting the operation of churches with material means (funds or real property), thus essentially helping to implement constitutional fundamental rights.[7]
We can conclude that the government programme in force has declared freedom of conscience and respect for people's religious beliefs. It ensures the conditions for the free exercise of religious life without discrimination and counts on the moral, educational, cultural and social activities of the churches. It modernises church funding to support churches' participation in mandatory public functions[8]
First of all, the family (the core of society, as an institution ordained by God) is the main driving force and component of church organisations. The kind of individuals are brought up in families will be the kind of society we will have. Observing and enforcing the rules, learning ethical behaviour, love, humanity and respect starts in fetal life, so the responsibility of parents is much greater than many people think. The Church wants to bring up young peo-
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ple with Christian values, family and respect for life.
The state may conclude agreements with religious communities with legal personality for the purpose of preserving historical and cultural values, education, higher education, healthcare, charitable, social, family, child and youth protection, cultural or sports activities, or other activities of public interest.
Churches carry out social activities with public funding and through the charitable services and voluntary donations of their members. According to current regulations, the maintainer may be the body designated by Government decree to perform the maintenance functions of the state, the local government, the association of local governments (together: state maintainer), an established church, its internal ecclesiastical legal entity, a registered church, an listed church and their internal ecclesiastical legal entity (together: ecclesiastical maintainer), and a non-governmental maintainer. Currently, according to the Annex to the Ehtv., there are 27 established churches. It is very important that the previous concept of a church recognised by the National Assembly is replaced in the current text of the Fundamental Law by the concept of an established church, which is primarily engaged in religious activities, has internal rules, a creed and an independent rite, has at least one hundred years of international operation or has been operating in Hungary as an organised religious community for twenty years, and has a membership of at least 0.1% of the population. Its doctrines and activities may not violate the right to physical and mental health, the protection of life and human dignity, and shall be free of any risk to national security. Today's Hungarian ecclesiastical regulatory principles mostly combine Austrian, Romanian and Czech multi-level recognition practices with a tightening of the former recognition criteria.
My knowledge of the church and religion comes primarily from my upbringing, living my faith, my weekend cantoring, and my studies. This is why research, knowledge and development of this subject is important to me, my life's work.
The role of the churches should not be merely to observe ceremonial laws, to celebrate festivals, to exist for their own sake, but to be a shining torch, a salt in the world, a building stone in society. According to God's guidance, the Church has a calling on this earth through mission, pastoral psychology, social action, education, diakonia, and charitable activities, through which a constructive relationship with the state is achieved.
It is important for churches to lead by example in upholding and enforcing the law. To call sin by its name and lead people to the right path. Respect for leaders and each other, education in ethical behaviour.
Negotiation between the "two" parties would require a long-term vision for each church and the state to develop a sound vision for their own and each other's future. For this, churches should finally move past their historical grievances and acknowledge that
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none of them can fight for power in Europe anymore, but that they must slowly fight for their very existence.
The aim of my study is to explore the relationship of religious organisations and churches with the state. To study how working together constructively without politics, while being an active part of politics, to build society, could be possible.
1. There is no single European model for the relationship between church and state.
2. Equality of churches does not mean equality of opportunity, since the state is not competent in matters of denominational relations and proportions: constitutionally, it cannot seek to reorder them.
3. The state must not only refrain from infringing the fundamental rights of religious freedom, but also has an active duty to protect institutions in order to ensure that this right is effectively exercised.
4. The state must provide a legal environment in which the specific characteristics that make church institutions truly ecclesiastical can apply.
5. In the aftermath of the 2020 coronavirus pandemic, work in the churches has begun with particular intensity in two directions: first, the organisation of online presence and second, the elaboration of theological reflections on the possibilities offered by digital technology.
The main research questions of my study are:
1. Besides the signs of stability in the conditions of religious freedom and in the relationship between church and state, what significant changes have occurred in recent years?
2. What is the basis for a balanced cooperation between churches and the state?
3. Can church entities be in partnership with the state?
4. What international practice does Hungarian church legislation follow?
5. Is curtailing freedom of expression necessary for religious freedom?
Before moving on to my specific topic, I think it is important to clarify some basic concepts.
Such an important concept is freedom of thought, conscience and religion.
The freedoms of thought, conscience and religion are considered to be classical first-generation freedoms, which all humans have from birth, without dis-
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tinction, and are also included in international human rights documents and constitutions to protect human dignity, the general freedom of action of the individual and the right to the free development of the personality.[9]
Freedom of thought is an intellectual freedom that everyone is entitled to without restriction. However, wrongful acts that result from freedom of thought (such as expression of opinion) may already give rise to legal facts that may have legal consequences. Therefore, for example, freedom of expression, which is closely linked to freedom of thought, can already be restricted as a fundamental right.
Religious freedom means that anyone is free to choose the religion they want to practise, but it also means the right to the free functioning and activity of religious denominations. Today, this fundamental right also includes freedom of thought, freedom to think without ideology, freedom of conscience, freedom to hold a conviction, freedom to change a conviction, freedom to express it individually or together with others, or freedom not to express it. While the right to choose one's conscience and thought is primarily an individual right, freedom of religion has a community character, it is a right that can be exercised individually and collectively, and the state is obliged not to interfere or to intervene only to a limited extent (according to appropriate rules).
The exercise of freedom of religion is partly linked to the exercise of freedom of association and assembly, by ensuring that religious acts and ceremonies may be performed together in public and that individuals may form associations or churches with others. To choose a religion means to live one's whole life according to the teachings of that religion, and to choose a religion is to reject certain worldview teachings. The free dissemination and teaching of religious doctrines is also part of religious freedom. It is important that a state should not discriminate between its citizens on the basis of their church affiliation and convictions. This is non-discrimination. Religious freedom presupposes the non-interference of the state in this choice. This is ensured, for one thing, by the separation of church and state, the state remaining ideologically neutral and not taking a position on matters of faith, and, for another thing, by the independence and equality of religious communities. The state may not interfere in the internal affairs of churches, nor may it set up a body to supervise them.[10]
The free and unhindered exercise of freedom of thought, conscience and religion is not only tolerated and recognised by the state, but also promoted by the legal protection it provides, by virtue of its obligation of institutional protection. The state's obligation of institutional protection includes not forcing anyone into a position incompatible with their personal convictions, not requiring a statement of conviction or belief, and protecting against being coerced by others into making such a statement. In Hungary, these fundamental rights are constitutionally guaranteed by the Fundamental Law, which states that everyone has the right
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to freedom of thought, conscience and religion[11]. The protection of fundamental rights means that the detailed rules for the exercise of these rights can only be laid down by an act of Parliament which requires a two-thirds majority of the Members of Parliament present to adopt and amend it. These are the so-called cardinal laws.
Unlike freedom of thought, freedom of conscience and religion can be restricted in order to protect society. The primary limitation on these freedoms is that their exercise may not infringe the rights and freedoms of others. Given that freedom of conscience and religion can also be understood as a right of communication, since they are exercised through the expression of opinions in a way that is perceptible to others, the right to human dignity, the honour or reputation of the individual may be a barrier. Contrary to Act XX of 1949 on the Constitution of the Republic of Hungary (hereinafter: the Constitution), the Fundamental Law excluded these rights from the scope of fundamental rights which cannot be suspended under a special legal order.[12]
Freedom of conscience and religion is traditionally understood to include the freedom to choose, express, practise and teach a religion or other conviction. From all this, the right to self-determination with regard to personal data concerning conscientious convictions follows logically. All of these could be regarded as religious self-determination, as a specific aspect of the right of self-determination derived from human dignity[13].
Four models can be distinguished: the church-state model, radical separation, the connected model and the cooperation and separation model[14].
I would now like to present these models.
1. State-church model: this model is characterised by the fact that denominational traditions are so strong that, although the church and state institutions are formally separated, culturally and at the level of public thought, the two institutions represent a spiritual unity. Another feature of the state church model is that the church is not financed by church taxes or by deductions from income, but by the central budget. The pure state-church model may also require the consent of the legislature or the executive to the filling of church positions or the validity of church provisions.[15] In Europe, the following states have the state-church model: Greece, United Kingdom, Denmark, Norway, Sweden.[16]
2. The model of radical separation: the second model was developed in the United States of America, building a "wall of separation" between the two institutions. The requirement of the radical model is bidirectional: it requires strict neutrality on the one hand, and strict separation on the other. The former refers to the fact that the state cannot interfere in religious matters or
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support religious activities; the latter requires that church institutions should not receive any support from the state, even indirectly. The strict regulation is based on the First Amendment to the Constitution of 1791, which forbids the state to declare a religion an official religion, and therefore to show no preference for any of the denominations present in the country. The Supreme Court also introduced the so-called Lemon test, which was essentially a set of requirements for laws. For one thing, the clause stated that the law must have a secular legislative purpose; for another thing, it required that the primary effect of the law must not promote or diminish religion. Finally, it stresses that the law must not lead to a merger of state and religion.[17] This model of radical separation was later followed by France after the USA. It can also be said that churches function as associations in countries that follow the model of radical separation.[18]
3. The connected model: the third type is the so-called connected model, which has spread mainly in Central Europe, Germany and Hungary, and is characterised by dynamic cooperation between the two institutions, positive and supportive neutrality, cooperation with the people's churches, denial of the state-church model, and strict protection of freedom of conscience and religion. The reason for the connected model is history. The Reformation emerged in German territory, and as a large part, but not all, of society converted to Protestantism, the region was divided along denominational lines. Thus, in states with the connected model in mind, there are several people's churches that exist as bodies governed by public law, and this status distinguishes them from all other bodies of a civil association nature.[19]
4. The cooperation and separation model: the fourth model has emerged in recent decades in countries where churches have significant public (educational, social, etc.) activities. As the name suggests, the relationship between the two institutions, the church and the state, is based on a contractual arrangement based on the recognition of the mutual autonomy of the parties. The contracting parties define the forms and content of the cooperation, in which both parties are equal. As the Catholic Church is the dominant church in these countries, the emphasis on neutrality is not as cardinal an issue in this case as it is in countries where several major churches are equally dominant (see 3. The connected model). The following countries apply the cooperation and separation model: Poland, Ireland, Catholic countries of Southern Europe: Italy, Spain, Portugal.[20]
It is clear that the diversity and different historical traditions of the European states make it impossible for them to settle the issue in a uniform way. What is more, neither European nor international law requires a separation of the two institutions, since this does not follow directly from the guarantee of an adequate level of freedom of conscience and religion. It is therefore clear that, whichever of the above categories is used to settle the problem of secularism, it does not violate the right to the free exercise of religion.[21]
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Here I would also like to mention the converging trends, which show that the convergence of extremes has been a general trend in recent decades. Just as the countries that have maintained the state-church model can now be considered ideologically neutral in their foundations through the effective guarantee of individual religious freedom, despite their interconnectedness, so the anti-church approach of countries applying the separation model has also eased, and most are now benevolent and supportive of the churches.[22]
As for Hungary, it can also be concluded that the difficulties related to church institutions in the future will mainly stem from the need to ensure that these institutions are truly ecclesiastical, which is particularly difficult in the 21st century. The state needs not only to finance the discharge of public functions, but, just as importantly, to provide a legal environment in which the specific characteristics that make church institutions truly ecclesiastical can apply. It is the constitutional responsibility of the state to create a legal environment in which ecclesiastical institutions, including those that assume public functions, can maintain their committed character.[23]
The Fundamental Law prohibits discrimination in a comprehensive way:
"FREEDOM AND RESPONSIBILITY
(2) Hungary shall guarantee fundamental rights to everyone without discrimination and in particular without discrimination on the grounds of race, colour, sex, disability, language, religion, political or other opinion, national or social origin, property, birth or any other status."[24]
According to Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities,
"Section 1 (3) No one shall be advantaged or disadvantaged because of the choice, acceptance, manifestation or confession of his conscientious or religious belief, or because of changing or practicing his conscientious or religious belief."[25]
In Hungary, the state treats the churches as partners, and the Fundamental Law states that
"FREEDOM AND RESPONSIBILITY
(4) The State and religious communities may cooperate to achieve community goals At the request of a religious community, the National Assembly shall decide on such cooperation. The religious communities participating in such cooperation shall operate as established churches. The State shall provide specific privileges to established churches with regard to their participation in the fulfilment of tasks that serve to achieve community goals."[26]
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The Ehtv. also states that
"The National Assembly in accordance with the Fundamental Law, and with regard to the constitutional requirement to separate the operation of the State and religious communities, but properly enforcing the principles of working together to their mutual benefit...
Section 9 (1) The State and the religious communities having legal personality may cooperate in order to promote the common good. The State may enter into agreements with religious communities having legal personality on performing activities preserving historic and cultural values, upbringing and educational activities, higher education, health care, charitable or social activities, activities of family, child and youth protection, and cultural or sports activities as well as other public purpose activities, taking into account their historic and social role, public acceptance, embeddedness in society, organisation and experiences gained in the course of the public purpose activities traditionally performed by them as well as, tailored to the specificities of the public purpose activities affected by such cooperation, whether the conditions required to perform those activities are satisfied.
(2) The State may, at their request, enter into comprehensive cooperation agreements for an indefinite period of time with religious communities having legal personality that are able and willing, in the long term, to perform public purpose activities of outstanding importance referred to in paragraph (1), relying upon their organisation, public support, historic and social role and experiences gained in the course of performing such activities (hereinafter "comprehensive agreement") which may also cover the support for faith-based activities."[27]
We can conclude that, in Hungary, both the Fundamental Law and the cardinal Church Act based on it guarantee the fundamental right to freedom of conscience and religion.
It is also very important to note that, from a fundamental rights perspective, it is crucial that freedom of religion (its individual and communal aspects) is not only the right of churches (see: the register of established churches) and religious associations (and their members) (see: religious associations), but also of all persons and communities, including those that may not meet the legal description of religious activity but are nevertheless engaged in lawful activity.[28]
The legal status of churches in Hungary is regulated by Act CCVI of 2011 from 1 January 2012.[29]
The above-mentioned act states that
"Section 10 Ecclesiastical legal persons are the established churches, registered
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churches and listed churches, and their internal ecclesiastical legal persons."
On the basis of the above, we can say that the organisational framework of religious activity as defined by the Ehtv. is the religious community, of which the two types are the church recognised by the National Assembly as a registered church (legal entity governed by public law) (see: the register of registered churches) and the organisation carrying out religious activity (legal entity governed by private law and operating as a special form of association) (see: religious associations).
We can also conclude that the legal framework offered by the state is open to all religious communities under the same conditions. The difference is that the organisational form for religious activities can be achieved by fulfilling significantly less stringent conditions than the organisational form for established churches.
An internal ecclesiastical legal person shall operate in accordance with the internal rules of the established church, registered church or listed church; in relationships specified in the internal rules, the internal ecclesiastical legal person of the established church, registered church or listed church shall act on behalf of the established church, registered church or listed church, respectively. The rules relating to the established church, registered church or listed church shall apply accordingly to the internal ecclesiastical legal persons. [Paragraph (2) of Section 11]
An institution of an established church, registered church or listed church performing public purpose activities may, under the internal rules of the established church, registered church or listed church, respectively, qualify as an internal ecclesiastical legal person. A company, foundation or association established by an established church, registered church or listed church shall not qualify as an internal ecclesiastical legal person. (Paragraph (2) of Section 11)
The internal rules of an established church, registered church or listed church may derogate from the general rules laid down by an Act for legal persons when specifying the rules
a) governing
aa) the organisation and representation,
ab) the guarantees for the legitimate operation,
ac) the transformation, merger, division and dissolution without succession of the established church, registered church, listed church and the internal ecclesiastical legal person, and
b) on establishing internal ecclesiastical legal persons (Section 11/A of the Ehtv.).
Churches which, because of their historical past and their traditional importance, effectively contribute to the realisation of the aims, interests and tasks of the state through their specific ecclesiastical and other activities, are considered corporations governed by public law and enjoy special privileges. The German legislation and jurisprudence used the term "Landeskirche", and the Hungarian legal system used the term
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"established church" to designate such privileged churches.[30]
Article VII of the Fundamental Law states that
"(4) The State and religious communities may cooperate to achieve community goals. At the request of a religious community, the National Assembly shall decide on such cooperation. The religious communities participating in such cooperation shall operate as established churches. The State shall provide specific privileges to established churches with regard to their participation in the fulfilment of tasks that serve to achieve community goals."
According to the Annex to Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities, the Hungarian National Assembly recognises the following churches, religious associations and religious communities in Hungary (27, namely):
1. Catholic Church in Hungary
2. Reformed Church in Hungary
3. Evangelical-Lutheran Church in Hungary
4. Federation of Jewish Communities in Hungary
5. United Hungarian Jewish Community (Statusquo Ante)
6. Autonomous Orthodox Jewish Religious Community in Hungary
7. Buda Diocese of the Serbian Orthodox Church
8. Ecumenical Patriarchate of Constantinople - the Orthodox Exarchate in Hungary
9. Bulgarian Orthodox Church in Hungary
10. Romanian Orthodox Diocese in Hungary
11. Hungarian Diocese of the Russian Orthodox Church (Moscow Patriarchate)
12. Diocese in Hungary of the Hungarian Unitarian Church
13. Baptist Union of Hungary
14. Faith Church, Hungary
15. (Hungarian Methodist Church
16. Hungarian Pentecostal Church
17. Saint Margaret's Anglican Episcopal Church
18. Transylvanian Congregation
19. Seventh-day Adventist Church
20. Coptic Orthodox Church in Hungary
21. Hungarian Islamic Council:
- Hungarian Islamic Community
- Church of Muslims in Hungary
22. Church of the Nazarene
23. Hungarian Society for Krishna Consciousness
24. The Salvation Army in Hungary
25. The Church of Jesus Christ of Latter-Day Saints
26. Hungarian Jehovah's Witnesses
27. Buddhist religious communities:
- Dharma Gate Buddhist Church
- Buddhist Mission, Hungarian Arya Maitreya Mandala
- Karma Kagyupa Buddhist Community in Hungary
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- Chanbuddhist Church of Hungary
- Diamond Way Buddhist Community.
Each church has an established church registration number in the Church Registration System.[31]
The above list of churches also has the five Buddhist communities on one row (see 27. Buddhist religious communities) and the two Muslim communities on another row (see 21. Hungarian Islamic Council).[32]
Now let's look at the recognition procedure for established churches.
The National Assembly shall recognise an organisation carrying out religious activities as a church if
a) it is primarily engaged in religious activities,
b) it has a creed and a rite containing the essence of its teachings,
c) it has, at least,
ca) a hundred years of international operations; or
cb) has been operating as an organised religious community in Hungary for twenty years and has a membership of 0.1% of the population of Hungary,
d) it has an agreed internal rule,
e) it has elected or appointed its administrative and representative bodies,
f) its representatives declare that the activity they intend to perform does not conflict with the provisions of the Lvtv.,
g) its doctrines and activities do not violate the right to physical and mental health, the protection of life and human dignity,
h) the organisation carrying out religious activities has not, in the course of its activities, been exposed to a risk to national security; and
i) its willingness to cooperate in the pursuit of community objectives and its capacity to maintain such cooperation in the long term is demonstrated in particular by its statutes, the number of its members, its activities prior to the initiative and the accessibility of such activities to a wider section of the population. The absence of a national security risk is established by the National Security Committee of the National Assembly in accordance with the procedure under the Act on National Security Services, following the examination of national security risk factors.
The recognition of an organisation carrying out religious activities as a church may be initiated by the person entitled to represent the organisation carrying out religious activities. The initiative must be submitted to the competent minister. The minister will decide within 60 days whether these conditions are met by means of administrative proceedings. An organisation carrying out religious activities may apply for judicial review of the minister's decision under the rules on the review of administrative decisions. The minister's proceedings must involve an expert with a degree in law, religion, religion or sociology and holding an academic degree. A church person may not be invited to act as an expert. The minister's decision on the existence of the required conditions must be communicated to the Committee on Religious Affairs of the National As-
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sembly. The Committee, on the basis of the notification received from the minister, shall submit a draft act on the recognition of the religious organisation as a church to the National Assembly within 60 days. The Committee shall also submit a proposal for a National Assembly resolution on rejection within 60 days of the notification received from the minister. In the proceedings of the Committee, the representative of the religious organisation shall be heard in an open sitting of the Committee. The National Assembly shall decide on the recognition of an organisation carrying out religious activities as a church within 60 days of the adoption of the draft act. In this case, the organisation carrying out religious activities has been considered a registered church since 1 August 2013. If the National Assembly does not support the recognition of an organisation carrying out religious activities as a church and does not approve the draft act, it shall state the reasons for not doing so in a resolution. The resolution shall state which of the conditions laid down in the Lvtv. were not fulfilled and the reasons for which the National Assembly found them to be so. Within one year of the publication of the resolution of the National Assembly, a new initiative for the recognition of an organisation carrying out religious activities as a church may not be submitted. An organisation carrying out religious activities may apply to the Constitutional Court for a review of a resolution of the National Assembly in the framework of the procedure laid down in the Constitutional Court Act.
Based on the requirements of the European constitutional rule of law, the classification into established church status is subject to strict substantive and procedural rules, and is decided by a single independent central court, such as the Curia or the Constitutional Court, or possibly the supreme administrative court.[33]
It is clear that, while before 2012, the procedure for the registration of a church was similar to the registration of associations, since 2012 the new procedure, as we have seen, is more reminiscent of the procedure for the recognition of national and ethnic minorities or the "admission" of established religious denominations in the pre-1947 legislation.[34]
As of 1 January 2012, Section 34 of Act CCVI on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities declared as associations all organisations previously having the status of churches, which were not listed among the churches in the annex to the Act.
A religious association is organised in the form of an association, but under more favourable conditions than associations, due to the specific nature of religious activity. Therefore, a religious association may, for example, determine the way in which membership is established and the scope, duties and powers of the persons who are entitled to make and control decisions relating to the association, as well as to manage
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and represent it, in a manner different from the rules applicable to associations.
A religious community with legal personality, except for established churches, is registered by the Budapest-Capital Regional Court. (Section 13 of the Ehtv.)
Rights and obligations that derive from religious freedom and are not related to cooperation for community purposes are also enjoyed by religious associations alongside established churches.
Taking into account that the concept of church in national law is completely independent of the concept of church of the different religious communities, the Ehtv. does not limit the use of this category exclusively to established churches but allows all religious communities to use it in their names and in referring to their activities for the purpose of self-determination.
The public prosecutor exercises legality review over the operation of the religious association. The power of the public prosecutor to investigate during opreations is limited to investigating what he/she may investigate at registration (i.e., in view of the constitutional separation of the state and religious communities, it does not extend to investigating religious activity).
On 15 April 2019, Act CXXXII of 2018 entered into force, creating 4 new types of religious communities with legal personality (religious association, registered church, listed church and established church), which, with the exception of the established church, are registered as "registered churches" by the Budapest-Capital Regional Court, which has exclusive jurisdiction to register them, if they have been operating as a religious association for at least five years or have been operating internationally for one hundred years, provided that at least one thousand persons have donated 1% of their personal income tax to the organisation in question on average over the three years preceding the submission of the application.
Current Hungarian regulations have four levels:
Chapter II of the Ehtv. Legal status of religious communities
a) religious association,
b) registered church,
c) listed church, and
d) established church.[35]
Importantly, status 3 and 4 were introduced as of from 15 April 2019 by Act CXXXII of 2018 amending Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities[36], and a religious association may apply for these forms in accordance with the following paragraphs of the Ehtv:
"Ehtv. Section 9/D (1) A religious association shall, at its request, be registered as a listed church if a) in the average of the 3 years preceding the submission of the application for registration, a part of the person-
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al income tax paid, as determined by a separate Act, was offered to it by at least one thousand individuals, and
b) it
ba) has been operating as a religious association at least for 5 years, or
bb) has had an independent international operation in an organised form for at least 100 years (2) By way of derogation from paragraph (1), a religious association shall, at its request, be registered as a listed church also if it
a) has at least one thousand recorded members who have their domicile or place of residence in Hungary,
b) has been operating as a religious association at least for 5 years, and
c) makes a statement that, after submitting the application, it will not, either by way of application or outside the system of applications, receive, on the basis of an individual decision, support for its faith-based activities or public purpose activities from the subsectors of the general government, from EU funds or from programmes financed on the basis of international agreement." "Ehtv. Section 9/E (1) A religious association shall, at its request, be registered as a registered church if
a) in the average of the 5 years preceding the submission of the application for registration, a part of the personal income tax paid, as determined by a separate Act, was offered to it by at least four thousand individuals and
b) it
ba) has been operating as a religious association at least for 20 years, or
bb) has had an independent international operation in an organised form for at least 100 years."[37]
One could say that, in countries where religious communities enjoy equal rights in principle, a form of dual status can be covertly created, either through agreements with churches or by taking account of actual differences. Generally speaking, in countries where the legal status of religious communities was not settled immediately after the collapse of the communist regime, but later (Czech Republic, Romania -with the exception of Slovenia), a dual legal system was established, while earlier regulations (Poland, Hungary) enshrined the equal rights of religious communities, and later practice has clarified the situation.
It is clear that the legal status granted to religious communities in the region is decided by government bodies in all countries except Hungary. In Hungary, registration was within the powers of the courts between 1990 and 2011, and from 2012 recognition became the power of the National Assembly.[38]
It is also clear that churches enjoy the same rights and are subject to the same obligations under the Ehtv. of 2011, the new legislation, but this is only true for churches in a narrow sense: religious associations fall into a fundamentally different category. The equal rights of the churches are nuanced by the inclusion of the formula developed by the Constitutional Court:
"The equal treatment of churches does not exclude consideration of the actual role of each church in society."[39]
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It is essential that the state or the legislator may only take into account the differences in the role of churches in society, for example, their role in education, but not their differences in religion. The neutral state is not competent to discriminate between different religions and churches, especially on the basis of their beliefs. The state may in no way discriminate in the extent of religious freedom and the rights associated with it.
As a general principle, the closer a right is to the level of the individual, the smaller the acceptable differences. In other words, taking into account the different roles of churches in society should not lead to unjustified disadvantages at the level of the individual because of regulation.
Equality of churches does not mean equality of opportunity, since the state is not competent in matters of denominational relations and proportions: constitutionally, it cannot seek to reorder them (also see my 2[nd] hypothesis)[40]. ■
NOTES
* This study was prepared in the framework of the Ministry of Justice's programmes to improve the quality of legal education.
[1] Balázs Schanda - Zsolt Balogh: Alkotmányjog -Alapjogok [Constitutional law - Fundamental rights]. Pázmány Press 2014, 150-178.
[2] Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities (Ehtv.) https://net.jogtar.hu/jogszabaly?docid=a1100206.tv (Download date: 11.07.2023)
[3] Péter Antalóczy: A vallási közösségek jogállására vonatkozó európai és magyar szabályozás összehasonlító elemzése [A comparative analysis of European and Hungarian legislation on the legal status of religious communities]. Jog-Állam-Politika [Law, State and Politics] Volume V No. 3/2013 https://dfk-online.sze.hu/images/J%C3%81P/2013/3/antal%C3%B3czy.pdf (Download date: 11.07.2023)
[4] Act CCVI of 2011
[5] Balázs Schanda: Állami egyházjog (Vallásszabadság és vallási közösségek a magyar jogban) [State Church Law (Freedom of religion and religious communities in Hungarian law)]. Szent István Társulat, Budapest, 2012, 93.
[6] Enikő Krajnyák: Az állam és az egyház elválasztásának különböző modelljei. [Different models of separation of church and state.] Miskolci Jogtudó [Miskolc Lawyer] No. 2020/1, 59-65.
[7] László Sólyom: Az alkotmánybíráskodás kezdetei Magyarországon [The beginnings of constitutional judicature in Hungary]. Budapest, Osiris, 2001, 78
[8] Tibor Fedor: Egyház-finanszírozás Magyarországon [Church funding in Hungary]. http://www.mtatk.hu/interreg/kotet2/20_fedor.pdf (Download date: 11.07.2023)
[9] Barna Mezey: Magyar alkotmánytörténet [Hungarian constitutional history] Osiris, 1999, 18.
[10] Nóra Chronowski: Lecture outline Freedom of thought, conscience and religion Secular state and worldview neutrality 21 November 2016.
[11] Paragraph (1) of Article VII of the Fundamental Law
[12] Balázs Schanda: "A gondolat, a lelkiismeret és a vallás szabadsága" [Freedom of thought, conscience and religion] in András Jakab - Balázs Fekete (eds.): Internetes Jogtudományi Enciklopédia [Online Encyclopaedia of Legal Studies] (Constitutional Law column, editors: Eszter Bodnár, András Jakab) http://ijoten.hu/szocikk/a-gondolat-a-lelkiismeret-es-a-vallas-szabadsaga (2018): https://ijoten.hu/uploads/a-gondolat-a-lelkiismeret-es-a-vallas-szabadsaga.pdf, (Download date: 11.07.2023)
[13] Miklós Tihanyi: A vallásszabadság különös alanyainak jogi lehetősége [The legal opportunities of special subjects of religious freedom], PhD thesis, Pécs, 2016.
[14] Gábor Halmai - Gábor Attila Tóth (ed.): Emberi jogok [Human Rights], Osiris, Budapest, 2003. 560.
[15] Balázs Schanda (2012): work cited, 815-816.
[16] Enikő Krajnyák: work cited, 60.
[17] Gábor Halmai - Gábor Attila Tóth (ed.): work cited, 562-566.
[18] Enikő Krajnyák: work cited, 61-62.
[19] Enikő Krajnyák: work cited, 62-63.
[20] Enikő Krajnyák: work cited, 62-63
[21] Enikő Krajnyák: work cited, 64.
[22] Balázs Schanda (2012), 84.
[23] Balázs Schanda: Állam és egyház viszonya a mérlegen [The relationship between church and state]. Távlatok 55 (2002/1), 43-50.
[24] Fundamental Law of Hungary (25 April 2011) https://net.jogtar.hu/jogszabaly?docid=a1100425.atv (Download date: 11.07.2023)
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[25] Act CCVI of 2011
[26] Fundamental Law of Hungary
[27] Act CCVI of 2011
[28] Balázs Schanda (2012): work cited, 93.
[29] Act CCVI of 2011
[30] Antal Ádám: "Az egyház és az állam viszonya" [The relationship between church and state] in András Jakab - Miklós Könczöl - Attila Menyhárd - Gábor Sulyok (ed.): Internetes Jogtudományi Enciklopédia [Online Encyclopaedia of Legal Studies] (Ecclesiastical law column, column editor: Szabolcs Szuromi) http://ijoten.hu/szocikk/az-egyhz-s-az-llam-viszonya (Download date: 12.07.2023)
[31] Church Registration System 1.0. https://egyhaz.me.gov.hu/ (Download date: 12.07.2023)
[32] Balázs Schanda (2012): work cited, 93.
[34] Balázs Schanda (2012): work cited, 93.
[35]Act CCVI of 2011
[36] Act CXXXII of 2018 amending Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities
[37] Act CCVI of 2011, work cited.
[38] Balázs Schanda (2012): work cited, 87-88.
[39] Decision No. 4/1993 (12 February) of the Constitutional Court
[40] Balázs Schanda (2012): work cited, 99.
Lábjegyzetek:
[1] The Author is a doctoral student, Doctoral School of Law, University of Pécs.
Visszaugrás
