a) Hungary / b) Constitutional Court / c) / d) 27-02-1993 / e) 8/1993 / f) Church Case / g) Magyar Közlöny (Official Gazette), 22/1993 / h) CODICES (Hungarian).
Keywords of the Systematic Thesaurus:
General Principles - Relations between the State and bodies of a religious or ideological nature.
Fundamental Rights - Civil and political rights - Freedom of conscience.
Fundamental Rights - Civil and political rights - Freedom of worship.
Keywords of the alphabetical index:
Church, founding, requirement / Church, member, number, minimum.
The requirement under the Freedom of Conscience, Freedom of Religion and Churches Act of at least 100 members to found a church is not unconstitutional because the distinction has no influence on the most important functions of the churches, such as worship, education and social charity. Moreover, the state cannot interfere with the affairs of religious communities, even if they are not established as church.
The petitioner sought a ruling on the constitutionality of Section 9.1.a. of the Freedom of Conscience, Freedom of Religion and Churches Act (IV/1990). The petitioner submitted that under Section 9.1.a the condition for registration of a church, namely that it was to be founded by at least 100 natural persons, was contrary to the Constitution, in particular Articles 60.2 and 60.3 of the Constitution, respectively guaranteeing the collective exercise of religious beliefs and declaring the separation of church and state. The latter could not inquire into the church's membership nor create special conditions for obtaining legal personality. Because of the condition, then, religious communities of less than 100 members could not benefit from collective exercise and were permanently at a disadvantage compared with the large, registered churches.
According to the Constitutional Court, the requirement of 100 natural persons as a condition precedent for registration as a church did not violate the right to common exercise of religion of those religious communities the number of whose founding members was below that legal threshold. The freedom of collective exercise of religious beliefs under Article 60.2 of the Constitution was conferred on everyone regardless of whether or not its exercise occurred within legally-regulated frameworks and of the organisational form in which it functioned. Since the rights of collective exercise could be practised not just by members of a church but by everyone wanting to participate in a religious community, Section 9.1.a was constitutional. Further the Act gave rise neither to any discrimination in legal regulation between organisational forms nor to any impediment to the exercise of religion for everyone. Indeed it was left to the discretion of the religious community concerned to choose the legal organisational form under which it gained legal status. Any religious community could thus take the legal form of a church, formerly characterised by its historic establishment for the collective exercise of religious beliefs, provided it satisfied the requirement of 100 members.
Moreover the requirement did not violate the principle of the separation of church and state. The separation declared in Article 60.3 of the Constitution, being part of the right to freedom of religion, could not be narrowed down to provisions of the Act relating to religious communities functioning as churches. The state could not intervene in the autonomy of religious communities in such a way as to touch their specific religious character apart from regulating the organisational form in which such communities were to function. Moreover, except for the larger organisational autonomy granted to the churches, the Act did not guarantee them additional rights which other religious communities could not enjoy. Considering that the activities defined in Section 17.1 of the Act were not reserved exclusively for the state but could be achieved by anyone including, inter alia, religious communities which did not function as churches, the normative grant for such activities did not therefore depend on such a community being a church.
The only difference which arose between churches and other religious communities was the formers' larger internal autonomy and their right to optional religious instruction in state schools under Section 17.2 of the Act. The larger organisational autonomy of the "church" as regulated by the Act was in accordance, from a historical perspective, with the state's separation from the "historical" churches and its relation to them. The prescription in the Act was intended to follow the traditional description of churches with a large membership while, at the same time, accepting smaller religious communities as churches. Furthermore the state under Section 9.1.d of the Act had to rely on a community's own interpretation that it really exercised a religion. The state could bind the right to religious instruction in state schools to the laying down of relevant religious doctrines. However the state imposed only the requirement of minimal social acceptance before it would guarantee such a right. Consequently there was no arbitrary discrimination in the fact that only churches of at least 100 founding members had the right to the provision of religious instruction.