HUN-2009-1-002

a) Hungary / b) Constitutional Court / c)  / d) 21-04-2009 / e) 47/2009 / f)  / g) Magyar Közlöny (Official Gazette), 2009/55 / h) .

Keywords of the Systematic Thesaurus:

05.02.02.06

Fundamental Rights - Equality - Criteria of distinction - Religion.

05.03.18

Fundamental Rights - Civil and political rights - Freedom of conscience.

05.03.32.01

Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.

Keywords of the alphabetical index:

Oath, religious importance.

Headnotes:

The written form of the oath taken by public servants must not contain data regarding their faith or beliefs; otherwise it would contravene the constitutional guarantees of protection of personal data and freedom of conscience.

Summary:

I.1. In a claim lodged with the Constitutional Court, a petitioner challenged Section 12 of a provision in the Act on Public Service. The petitioner argued that the final phrase "So help me, God", at the end of the oath and in the written version violated the right to freedom of thought, freedom of conscience and freedom of religion. It also discriminated between religious and atheist people.

2. Another petitioner filed a complaint with the Court on behalf of the Church of the Nazarene arguing that under the Act it is impossible to take an oath of public office with the word 'affirm' instead of 'swear'. The precept in the Bible "Swear not at all" is however universal. This makes it impossible for a Nazarene to serve as a public officer, and means that the Act differentiates in an unlawful way among religious people. The petitioner contended that there should be scope to swear an oath or affirm it, but this possibility is missing from the Act on Public Service.

3. The third petitioner requested a constitutional review of Section 12.3 of the Act, according to which the oath should have a written form. The petitioner suggested that this provision contradicts Article 60.2 of the Constitution, as it obliges public servants to express their beliefs in public.

4. Under Section 12.1 of the Act, public officials must take an oath when appointed (both verbally and in writing) and failure to do so could give rise to invalidity; he or she would not be inducted if they did not take the oath. The text of the oath is provided in Section 12.2 of Act XXIII of 1992: "I... swear allegiance to my country, the Republic of Hungary. I shall abide by the Constitution and the constitutional statutory laws. I shall keep state and service secrets. I shall perform my official duties impartially, conscientiously, truly, solely in line with statutory laws, accurately, ethically, with respect to human dignity, according to the best of my knowledge in serving the interests of the nation (and the self-government of...). In my work and private life I shall behave in a manner commensurate with my position and I shall promote the development of the Republic of Hungary. (According to the candidate's belief:) "So help me God!"

II.1. Article 60.1 of the Constitution guarantees universal freedom of thought, freedom of conscience and freedom of religion. According to Article 60.2 this right includes the free choice or acceptance of a religion or belief, and the freedom to publicly or privately express or decline to express, exercise and teach such religions and beliefs by way of religious actions, rites or in any other way, either individually or in a group. In the Court's opinion, the text of the Act ensures that a person before officially assuming public office can take an oath of office in accordance with his or her faith. Section 12.2 does not require a public expression of belief. It merely enables the candidate to decide whether or not to express his or her belief in public. The clause under dispute (So help me God) is not an obligatory part of the oath. Therefore, nobody is under coercion to take an oath of office against their faith or even to express their beliefs in public.

The Court therefore held that the contested clause did not violate freedom of conscience ensured by Article 60 of the Constitution; neither did they differentiate between the people on the basis of their faith or belief.

2. The Court has considered the significant constitutionality issue raised by the petitioner that the Nazarenes are to request exemption from swearing in the oath of office on the basis of their conscience and religious conviction under Article 60.1 of the Constitution. Section 12 of the Act prescribes the general obligation to take on oath of office with the word of "swear" but the statute does not regulate exemptions.

Taking an oath of office as regulated in the Act has undoubtedly caused more serious problems for those who, like the Nazarenes, believe that swearing is against their conscience and strongly held religious beliefs. In constitutional democracies it is a frequently debated issue whether citizens may be exempted based on their conscience and religious beliefs from statutes that prescribe general obligations. Examples include the use of narcotics for religious ceremonies, wearing clothes required by their religion in the army, and the possibility of deviating from rules governing marriage and family ties, for example, from monogamy. When considering the proportionality of the right restriction in this type of regulation, the Court applies a different so-called "comparative test of burdens" for those whose conscience and religious freedoms are also affected by the regulations.

On the one hand, one should take into consideration the basic principle of a state under the rule of law which says that everybody has rights and obligations in the same legal system, and therefore statutes apply to all in such a way that the law treats everybody as equals (as individuals with equal dignity). On the other hand, one cannot ignore the fact that the fundamental values of a constitutional democracy include variety within the political community and the freedom and autonomy of individuals and their communities. Therefore, it may not be established as a general rule that freedom of conscience and religion should always be an exception to the laws of universal application, and likewise, the rule of law may not be declared fully applicable to the internal life of a religious community.

Due to various and sometimes contradictory constitutionality criteria, the constitutionality issue of whether an exception should be made from the general laws due to freedom of religion may only be decided case by case. The decision is largely influenced by questions such as whether the requested exception is closely related to a dogma or a religious ceremony and whether the exception violates the rights of those who do not belong to the religious community. Therefore, the concrete facts of the case must be studied to judge whether the persons affected should be granted exemption from the general rules and whether the State "should allow alternative rules of conduct within reasonable limits".

In the instant case the Court held that based upon Article 60 of the Constitution, the State must remain neutral in matters concerning the freedom of religion and other questions concerning conscience. However, the words 'oath' and 'swearing' in the Hungarian language do not have a religious meaning, they are secular notions. That is why some provisions of the Constitution include these expressions. Under 29/D of the Constitution, prior to entering office, the President of the Republic must take an oath before Parliament. According to Article 33.5 the Government is formed upon appointment of the Ministers. Subsequent to its formation, the Members of the Government shall take an oath before Parliament.

Based upon the guiding principle of the neutrality of the state, the constitutional provisions could not be interpreted in such a way as to only have a religious basis. The word 'oath' in the challenged provision is primarily secular in meaning. The Act also allows the oath to be taken with or without the clause 'So help me God'. It therefore does not differentiate in an unlawful way among religious people.

3. Finally, the Court held that there was no legitimate reason for registering those public servants who took an oath of office with the clause of 'So help me God'. The Court declared that the written form of the oath of public servants must not contain data concerning the public officers' faith or beliefs.

Justice Bragyova and Justice Balogh attached separate opinions to the judgment. Justice Trócsányi attached a concurring opinion.

Languages:

Hungarian.