Back from the summer break, I am starting off with guest post of one of the regular contributors to the ECHR blog, professor Renáta Uitz of Central European University. She has written an extensive commentary to shed light on the Court's religious registration case Magyar Keresztény Mennonita Egyház and Others v. Hungary. This judgment from before the summer fits in a line of recent judgments finding violations in situations created by the current government. It is important to note that Hungary has requested referral of the case to the Grand Chamber, for new consideration - a request which is now pending. Professor Uitz argues below why such a referral is unnecessary. Here is the guest post:
Worthy
of a second look? The Chamber judgment in the Hungarian church re-registration
case
by Renáta Uitz
Introduction
In recent months, the
ECtHR has found several aspects of Hungary’s recent constitutional reform to
violate the Convention. The judgments of this spring covered issues such as the
removal of the former chief justice from office through constitution-making (Baka v. Hungary), the introduction
of life imprisonment without parole (Magyar László v. Hungary) and also the
new legal regime on the registration of religious communities (Magyar Keresztény Mennonita Egyház and
others v Hungary). These judgments
should not have come as a complete surprise to the government, since on a
number of key issues the ECtHR reinforced the earlier findings of the Venice
Commission. The ECtHR judgments nonetheless provided a handy opportunity for
the newly reelected Conservative-Christian government to sound anti-European
rhetoric in the heat of the European parliamentary elections. On account of the
judgment in the church registration case the secretary of state in the Ministry
of Justice was reported by the press to have said that the ECtHR cannot require
a member state to change its laws, as only the European Commission can do so. It
was in this spirit that the Hungarian government decided to turn to the Grand
Chamber against the judgment on the church registration scheme. With the
government’s request pending, it is time to reflect on what is novel or unusual
in the Chamber judgment that may trigger review by the Grand Chamber.
Admittedly, the fact
pattern of the Hungarian church re-registration case is highly politicized,
though the routine is not entirely unprecedented: most famously, Russia
required previously recognized churches to re-register under more stringent
conditions in the 1990s. The leading cases of the ECtHR on church
re-registration and de-registration originate from a wave of cases arising from
this Russian reform attempt.
The
old and new systems
In 2011, in the course
of the making of the new Fundamental Law (constitution), Hungary fundamentally
altered its church registration regime. As a result of the reform almost all previously
registered churches lost their church status and had to seek re-registration (or
face the loss of their special legal personality tailored to the needs of
religious communities). Re-registration to church status is now granted by a
discretionary decision of Parliament, with the exception of the few churches
that were recognized by Parliament ex
lege. The latest amendment to the 2011 church law was adopted in August 2013,
in response to a decision of the Constitutional Court (6/2013 (III. 1.) AB) finding
key provisions of the 2011 unconstitutional and also to account for the
objections of the Venice Commission on the Fourth Amendment of the new
Fundamental Law, which inter alia, criticized
the constitutional foundations of Hungary’s newly minted church registration
regime.
The transformation of
the 2011 church law is described in the ECtHR’s judgment on almost 30 pages. According
to the latest version previously legally registered churches may receive entry-level
recognition as special religious associations from the Budapest High Court upon
the request for 10 members, while the privileged status of ‘incorporated
church’ is granted by Parliament in a discretionary decision. Conditions for
the privileged status include proof of 100 years of international operations,
or 20 years of domestic presence and a membership of 0.1 per cent (roughly 10,000
souls) of the population. In accordance with the amended provisions of the Fundamental
Law Parliament may grant ‘incorporated church’ status to those religious groups
(i.e. previously registered churches) with which it intends to cooperate in
order to further community goals. Key differences between ‘incorporated
churches’ and religious associations include tax benefits and access to public
funds. These differences are critical as under the 1990 law, at least formally,
all recognized churches had the same legal status in these respects.
Note that these
criteria for a two-tier system of church registration replace the conditions of
the 1990 church law which permitted 100 believers to seek recognition of their
religious community from a court of law, without any further discretionary
assessment of fitness. Of the 406 churches which had been registered under the
1990 law only 32 made it into the exclusive club of ‘incorporated churches’ selected
by Parliament under the new 2011 church law: of these 14 churches were admitted
ex lege, while others were readmitted
to church status as a result of parliament’s discretionary decision.
The rationales advanced
by the government in support of the reform of the church registration regime included
the need to curb so-called ‘business sects,’ to bring order to the burgeoning
field of religious organizations, and to enable parliament to exercise its
sovereignty in deciding “who is a church and who is not.”
The
Judgment
In the case the ECtHR
defined the issue narrowly, and – instead of assessing the new church
registration regime as a whole – it concentrated on the loss of privileges that
resulted from the applicant religious communities’ losing their previously
registered church status under the new law (see esp. paras. 55 and 95). The reasons
why the new Hungarian church registration regime was found to violate the
Convention are rather straightforward. A number of basic concerns have already been
addressed by the Venice Commission in its two opinions on Hungarian
constitutional and legal developments, and are also firmly grounded in the
settled case law of the ECtHR.
The Chamber reiterated
that access of religious communities to legal entity status is a matter of
freedom of religion as well as freedom of association (Articles 9 + 11, paras.
44-45), that the state has to remain neutral and impartial in exercising its
regulatory power in matters of religions (para. 76), and that when requiring
previously registered churches to re-register, the government has to offer
compelling reasons (para. 79 and 84). The Court emphasized that the state’s
power “to protect its institutions and citizens from associations that might
jeopardize them must be used sparingly, as exceptions to the rule of freedom of
association are to be construed strictly and only convincing and compelling
reasons can justify restrictions on that freedom” (para. 79).
The Court’s reasoning
is worthy of closer attention, as on account of these familiar basic points the
judgment pulls several threads of the jurisprudence together, and elucidates
premises behind some key concepts in the case law. In doing so, the Court
importantly (1) explained the state’s tasks in granting legal entity status to
religious communities in light of the impact of state regulation on individual
aspects of religious freedom, (2) explored the deep-seated connection of the
requirement of state neutrality and impartiality with the prohibition of
discrimination under the Convention, and (3) reiterated the organic connection
between access to legal entity status and some other rights and opportunities afforded
to churches under national law such as benefits and funding. A careful inquiry
into earlier case law suggests that these considerations are hardly novel,
indeed, the seeds of these findings have been planted for many years in the
jurisprudence of the Court on freedom of religion.
Commentary
First, the Court gave
a textured reading to the significance of granting legal entity status to
religious communities, when it insisted that legal recognition by the state
cannot portray religious communities (in a lesser status) in an unfavorable
light or as suspicious sects, as such a portrayal also affects the religious
freedom of individual believers (para. 93). The Court also emphasized that without
proper recognition religious communities may feel “not more than tolerated –
but not welcome” (para. 94), and that the lack of proper state recognition may
result in amplification of prejudices. Further the Court added that when
funding is distributed to religious communities the state “cannot produce a
situation in which the adherents of a religious community feel second class
citizens, for religious reasons, on account of the less favorable State stance
on their community.” (para. 109)
According to the
separate opinion of Judges Spano and Raimondi, it is irrelevant whether
adherents of a religion feel to be second-class citizens as a result of the
de-registration of their former church, so long as their community of believers
receive legal entity status (separate opinion, para 13). In this respect the
position of the dissenters appears to run counter to the longstanding case law
of the Court, as the ECtHR has long recognized that “[w]here the organisation of the
religious community was at issue, a refusal to recognise it has also been found
to constitute interference with the applicants’ right to freedom of religion
under Article 9 of the Convention” (Religionsgemeinschaft
de Zeugen Jehovas and others v. Austria, para. 62, citing Metropolitan
Church of Bessarabia and Others v. Moldova, para 105).
Note, furthermore,
that the Court’s sensitivity to the negative impact of governmental disapproval
of certain religious groups is nothing new or unprecedented in the case law,
either. For instance, in Förderkreis
v Germany the Court found that while the government’s labeling of the
applicants as a ‘youth sect’ and ‘psycho sect’ did not prevent the applicants
from operating, it generated a sufficiently negative consequence to be
considered an interference (para. 84). Most recently, the Grand Chamber clearly
acknowledged in its judgment on the burqa ban (S.A.S. v. France) that the ban had a
negative impact on the women concerned (para. 146), adding that “the State which enters into a
legislative process of this kind takes the risk of contributing to the
consolidation of the stereotypes which affect certain categories of the
population and of encouraging the expression of intolerance, when it has a
duty, on the contrary, to promote tolerance” (para. 149). Thus, the Court’s
attention on the broader societal impact of state regulation on attitudes
towards religious communities and believers, and the risk state regulation
entails, is clearly not novel.
Second, when assessing
the Hungarian re-registration requirement from the perspective of state
neutrality and impartiality, the Court’s emphasis is on the prohibition of
arbitrariness, a concept which is linked at its core to the prohibition of
discrimination. The ECtHR’s main concern in the Hungarian case is that in the
Hungarian regime “the granting of refusal of church recognition may be related
to political events or situations. … A situation in which religious communities
are reduced to courting political parties for their favorable votes is
irreconcilable with the State’s neutrality requisite in this field.” (para.
102) When being deeply concerned about the open political discretion of the
Hungarian parliament in the process of distribution church status in particular
cases, the Court echoed the already familiar concerns of the Venice Commission.
It is important to
note at the outset that recent judgment against Hungary does not deal in any
manner with whether parliamentary recognition of churches violates the Convention
per se: the emphasis in the Hungarian
case is on the open political discretion of the body which is taking the
decision on registration. The ECtHR had no objection to a member state having a
multi-level church registration system or that parliament was in charge of
admitting religious communities to the highest status reserved (see para 100). The
reason why the Hungarian regime violates the Convention is the deeply political
nature of the process - that the body which gets to decide on incorporated
church status is the Hungarian Parliament is not decisive in and of itself.
On a more abstract
level, the Court’s reading of the prohibition of arbitrariness, as a corollary
of the requirement of neutrality and impartiality in clear non-discrimination
terms, but without reference to Article 14 is certainly an interesting
development. It is worth pointing out, however, that in doing so the Court did
not depart from familiar elements of the jurisprudence in cases where Article 9
is read in conjunction with Article 14. At best, the reasoning is seen in this
respect as a welcome step towards as a deeper reading of Article 9, and it
certainly does not constitute a departure from established case law.
Third, in the
Hungarian case the Court read the de-registration of previously registered
churches in close connection with material advantages that were lost as a
result of said de-registration. Dissenting justices Spano and Raimondi argue
that the majority is misguided in seeing an interference in the case at all, as
the “reclassification” of previously registered churches does not prevent the affected
religious communities from manifesting their religious freedom (separate
opinion, para. 12). Thus, unlike the majority, the separate opinion reads this
case as one on the withdrawal of material benefits, taking the de-registration
component out of the picture (and calling it reclassification). Since
de-registration of previously recognized church status was the very means used
by the Hungarian government to withdraw material benefits (or at least the
potential thereof) from literally hundreds of churches, it is difficult to see
how these two aspects of the claim would not be connected.
It is also worth
pointing out that grievances related to lack of entity status and material
benefits are often intertwined, and that the Court has treated them to be
indistinguishable before. The lack of
such a distinction was central to the ECtHR’s judgment e.g. in Holy Synod of the Bulgarian Orthodox Church
(Metropolitan Inokentiy) v. Bulgaria where the Court found the lack of legal
recognition of the Bulgarian Orthodox Church’s breakaway faction not
distinguishable from the property dispute before the ECtHR (para. 174). In Religionsgemeinschaft
de Zeugen Jehovas and others v. Austria, in a case concerning acceptance to
a higher level entity status, the Court noted that “under Austrian law, religious societies enjoy
privileged treatment in many areas. These areas include exemption from military
service and civilian service, reduced tax liability or exemption from specific
taxes, facilitation of the founding of schools, and membership of various
boards. Given the number of these privileges and their nature, in particular in
the field of taxation, the advantage obtained by religious societies is
substantial and this special treatment undoubtedly facilitates a religious society’s
pursuance of its religious aims.” (para 92). Most recently in The
Church of Jesus Christ of Latter-Day Saints v. the United Kingdom, a
tax exemption case, the financial claim and the violation of applicant’s
manifestation of freedom of religion (Article 9 and 14) were said by the Court to
be indistinguishable (para. 38).
The jurisprudence has
solidified in recent years on requiring members states to provide rights to funding
and other advantages to religious communities in a non-discriminatory fashion
(for references, see para 107). The requirement of non-discrimination is not
affected by the fact that there is no right to state funding for religious
organizations under Article 9 (Ásatrúarfélagið
v. Iceland
(dec.)).
However, according to the standing case law of the ECtHR: once a member state “has gone beyond its obligations
under Article 9 of the Convention in creating such rights cannot, in the
application of those rights, take discriminatory measures” (Savez
crkava “Riječ života” v. Croatia, para. 58).
The one novelty which the Court
added to its longstanding jurisprudence in this respect is the conclusion that
since benefits cannot be granted in a discriminatory fashion, they cannot be
withdrawn in a discriminatory manner either (para. 107). It appears especially
significant for the Court that the funding re-distributed by the Hungarian
state concerned the outsourcing of public interest tasks and thus was not
funding for faith-based operations (see para. 109).
The separate opinion takes issue with
this conclusion, arguing that with taking the prohibition of discrimination to
apply not only to the distribution of funds, but also to the “withdrawal of previously
afforded material benefits” the majority has expanded Article 9 to previously
unseen areas (separate opinion, para. 14). The dissent’s ultimate objection is not
that withdrawal of funds was treated similarly to the awarding of funds.
Rather, the dissenters object because the majority has reached this conclusion
on the basis of Articles 9+ 11, and without taking into account Article 14.
It is worth recalling, however, that
although applicants submitted a separate complaint under Articles 9+11 in
conjunction with Article 14, due to the indivisibility of the claims on the
impact of the applicant’s de-registration as a previously recognized church,
the Court decided to treat their complaint under Articles 9+11, reading a thick
non-discrimination requirement into the principles of neutrality and
impartiality.
Conclusion
In light of the above overview, it
appears that although the Court added texture to its long-existing
jurisprudence on the standards applicable to the de-registration and
re-registration of previously registered churches, it did not depart from its long-standing
case law. The novelties of the Chamber judgment are best seen as resulting from
an exercise in which already familiar dots are connected in new ways due to the
peculiarities of the facts of the case. This comprehensive treatment of the
applicants’ claims is a much welcome development as it offers insights into the
deeper considerations informing the judgment of the Court, but they certainly
does not bring unexpected twists to settled jurisprudence that would warrant
consideration by the Grand Chamber. Thus, while the discontent of the Hungarian
government is understandable as the Court has ruled against Hungary in several
cases lately, the judgment in the Hungarian church re-registration case is
hardly an unforeseeable surprise upsetting the settled jurisprudence of the
Court.
