a)  Hungary / b)  Constitutional Court / c) / d)  12-02-1993 / e)  4/1993 / f)  Church Property Case / g)  Magyar Közlöny (Official Gazette), 15/1993 / h)  CODICES (Hungarian).
Keywords of the systematic thesaurus:
Sources - Categories - Written rules - National rules - Constitution.
Sources - Categories - Written rules - National rules - Quasi-constitutional enactments.
General Principles - Relations between the State and bodies of a religious or ideological nature.
Institutions - Legislative bodies - Law-making procedure - Quorum.
Institutions - Legislative bodies - Law-making procedure - Majority required.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Equality - Criteria of distinction - Religion.
Fundamental Rights - Civil and political rights - Right to compensation for damage caused by the State.
Fundamental Rights - Civil and political rights - Freedom of conscience.
Fundamental Rights - Civil and political rights - Freedom of worship.
Fundamental Rights - Civil and political rights - Right to property.
Keywords of the alphabetical index:
School, non-religious / Education, religious / School buildings, restitution.
The state must remain neutral in religious matters. Schools operated by the state must not be committed to any denomination. Where the state gives back school buildings to the church as part of the process of restitution, it has to make it possible for children to attend non-religious schools. This conclusion cannot mean that a disproportionate burden is placed on those who wish to attend such non-denominational schools.
Even if in some cases the Constitution requires a two-thirds majority vote for the enactment of a legislative act on a fundamental right, the same requirement does not apply in respect of all laws touching upon that specific right.
The petitioners challenged the constitutionality of the Act which provided for the return of real estate - including school buildings - to the churches as their owners before communist nationalisation. The decision, however, embraced all basic aspects of the freedom of religion. The Court stressed that neutrality of the state was different from indifference, and it applied the neutrality principle to state-run schools. However, the separation of state and church did not exclude elements of co-operation. Thus there existed a constitutional justification for the restitution of parts of former church property on the basis of functionality.
The Court held that the state was to remain neutral in cases concerning the right to freedom of conscience and religion. This included an obligation for the state to guarantee the possibility of the free formation of personal convictions. Article 60 of the Constitution guaranteed freedom of conscience and religion, including the freedom to choose or adopt a religion or a personal conviction; freedom of its exercise including the (negative) right not to manifest any conviction; and the right to religious association and assembly. On the one hand, religion was a part of the right to human dignity; the guarantee of its freedom ensured free expression of a human being's personality, which itself could not be limited by law. Thus the state had a duty to abstain from interference in the exercise of this freedom. On the other hand, there was also a close relationship between the right to free exercise of religion and that of freedom of expression. Since the manifestation of this freedom was the exercise of religion or worship, any laws limiting such freedom had to be strictly construed, as with those in respect of freedom of expression. The state was to protect the freedom of conscience and religion without considering its value or its content (thus the right could only have external limits) and it was from such reasoning that the state drew its neutrality, as underlined by Article 60.3 of the Constitution.
The state was not to favour any church or to influence its internal workings, particularly in matters of religious truths. Rather it was required to treat all churches equally and to provide everyone with the possibility of exercising their freedom of conscience. However, the separation of church from state did not mean that the state ought to ignore the characteristics of religion and church in its legislation: for instance, it could take into consideration everything that distinguished churches and religious communities in terms of their history and social role from those other social groups whose establishment was governed by Articles 3, 63 and 70/C of the Constitution. Such roles included school education, tending to the sick and charity, once exclusively church duties but which also became state ones at the time of nationalisation. Furthermore, the neutral state legal system ensured that religious communities could freely use the legal form of "church" as defined by the state's secular laws, provided they fulfilled the criteria in the applicable laws, and conduct their activities within the sphere they had chosen. State neutrality in connection with the right to freedom of religion therefore did not mean inactivity. In fact the state was bound to ensure the circumstances under which different ideas could be formed and developed, and to enable the free formation of personal convictions.
A neutral (public or state) school could not be committed to any religion or world view but had to provide a comprehensive, balanced and unbiased expression of the prevailing ideas in society, offering the possibility of a free and well-founded choice. Where a school was sponsored by the state or local government but permitted education committed to a religion, then such a school had to be considered a "committed" school like other church schools, otherwise the requirement of religious neutrality would not have any sense. In the exercise of the freedom of religion, parents had the right to have their children attend church schools and not to have them attend schools that are contrary to their world view. It was not unconstitutional for such persons, in acting according to their conscience, to be constrained to make a sacrifice albeit a proportionate one. Thus while the state was to ensure the legal possibility of establishing non-neutral schools, it was not obliged to establish them. Where, however, the church or parents established or ran committed schools, the state was required to support them to the extent necessary to fulfil the state's obligations in them.
The state was also bound to provide a viable alternative by making possible attendance at neutral state schools for those refusing to attend church schools, without discrimination or imposition of an undue burden for them. Consequently whereas the state and local government were not obliged to establish a church school for those choosing it, they were required to make a neutral school available where demanded even in cases where the number of pupils was low.
The petitioner submitted that the Act was contrary to Article 70/A of Constitution, since it drew a distinction between the churches entitled to restitution of property and other churches as well as organisations having suffered similar property loss. The Court ruled, however, that there was no unconstitutional discrimination between churches and other legal entities. The nature of the return of buildings differed fundamentally from the concept of the partial compensation for unjust harm done to citizens. This derived from the difference between the function of the property of individuals and legal entities pursuing commercial activity or representing certain interests and the functions of church property. Indeed the historical social role of the churches and the inseparability of their operation from the right to freedom of religion offered a satisfactory basis for the classification of churches as being among organisations maintained by the state and for state transfer of property to them. It was also logical that churches which were not operating at the relevant time or had suffered no loss remained unentitled since the present transfer was of buildings previously used by the entitled churches for the implementation of their right to exercise freedom of religion and which could now be reclaimed for the same purpose in conformity with the churches' real needs.
Finally, the case gave the Court an opportunity to rule on the politically frequently misused question of the qualified majority required to pass laws on certain subjects enumerated in the Constitution, such as freedom of religion, rights of ethnic and national minorities, and citizenship. This reflected the political importance of such rights when broad consensus was needed to amend them in the Constitution. The fundamental right was not a legislative subject in every detail: an Act, even if a qualified voting one, was needed only to define the content of the fundamental right, its substantial guarantees and its direct and significant restriction. The protection and realisation of fundamental rights would be restricted unjustifiably if every change and development, or partial guarantee which did not determine the regulatory concept, were attached to a two- thirds majority; lawful regulation pertaining to a fundamental right with its particular, detailed rules or directly implementing a specific constitutional provision required only a simple majority. Since the Act challenged by the petitioners involved detailed regulation of various matters and did not involve the direction and defence of the right to freedom of conscience and religion, its passing by a simple majority in Parliament was in accordance with Article 60.4 of the Constitution.