a)  Hungary / b)  Constitutional Court / c) / d)  01-03-2013 / e)  6/2013 / f)  On the constitutionality of the Act on Churches / g)  Magyar Közlöny (Official Gazette), 2013/35 / h) .
Keywords of the systematic thesaurus:
General Principles - Separation of powers.
General Principles - Equality.
Institutions - Legislative bodies - Powers.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy.
Keywords of the alphabetical index:
Church, recognition.
Allowing Parliament to decide on the status of churches could result in political decisions. Decisions in such cases should be taken by independent courts. The State must ensure that religious communities receive special status as "religion" based upon objective and reasonable criteria, and in compliance with the right to freedom of religion and the requirement of fair procedure. Legal remedy against such decisions must be guaranteed.
I. Seventeen religious communities, which had previously operated as churches but had lost their status due to the new Act CCVI of 2011 on Churches (hereinafter, the "Act") submitted constitutional complaints. After analysing submissions from many religious organisations, the Commissioner for Fundamental Rights also turned to the Constitutional Court.
The applicants requested the review of the Act on both procedural and substantive grounds. The procedural complaints mainly concerned the violation of the rule of law, the procedural rules of legislation and the obligation to effectively consult the religious organisations. As regards the substantive complaints, the applicants' main concern was the annulment of the prerogative of Parliament to decide over the legal status of churches by a two-thirds majority. The applicants contended that the legal provisions regulating the recognition of churches were contrary to the principle of separation of power, to the right to fair procedure and to the right to legal remedy. The provision, without consideration for the constitutional principle of separation of powers, allowed Parliament to decide by itself on church status recognition without the right to an appeal. This was in their view unconstitutional.
According to the applicants, the close relationship to freedom of religion makes it indispensable for decisions on the recognition of churches and on bestowing religious status to meet all guarantees protecting fundamental rights. If the decision-maker has the discretion to bestow religious status, then the aspects of deliberation must be regulated by Act. The Act on Churches lacked such principles and provisions. There was no provision in the Act requiring reasoning in case of refusal. Finally, legal remedy must be guaranteed against decisions on church status; this was also missing from the Act on Churches. The applicants stressed that on the basis of the principle of separation of power, Parliament cannot carry out tasks during which it makes political decisions affecting fundamental civil rights, without having appropriate constitutional guarantees.
II. The Constitutional Court declared that, as a constitutional requirement, the State must ensure that religious communities get special status as "religions" based upon objective and reasonable criteria, and in harmony with the right to freedom of religion and the requirement of fair procedure. Furthermore, legal remedy against decisions on the special status must be ensured. However, it pointed out that it is not a constitutional requirement that every Church has the same rights or that the State cooperates with all the Churches to the same extent. Existing differences between religious communities could be taken into account by the legislator in accordance with the Fundamental Law provided this is not based on discrimination and is not the result of discriminatory practice.
The Constitutional Court pointed out that if the procedure set out in the previous Church Act has proved ineffective in terms of filtering out organisations performing non-religious activity and acting against organisations operating in breach of the law, Parliament is entitled to specify further the substantive conditions for acknowledgement as a Church, to incorporate additional guarantees within the acknowledgement procedure or to introduce more effective legal instruments against breaches of law. Acknowledgment of an organisation as having the status of a church is not considered as an acquired right protected by the Fundamental Law in the sense that it is possible to review or withdraw them if it later transpires that the preconditions for being deemed as a church did not exist. However, it is a constitutional requirement to ensure fair procedure and the possibility for legal remedy in connection with the procedure for reviewing church status.
The Constitutional Court held that the challenged Act made no provision for a duty to provide detailed reasoning if a religious organisation's request to be recognised as a church was turned down. The rejected religious community receives no official written explanation as to why it cannot be given or continue to hold religious status. There is no deadline within the Act for the Parliamentary Committee to make a proposal or for Parliament to make a decision and there is no guarantee of legal remedy should the application be rejected or in cases of lack of decision. Allowing Parliament to decide on the status of churches might result in decisions based on political aspects. Decisions in these individual cases, which should be assessed by legal discretion and to which there are also fundamental legal aspects, should be made by independent courts rather than Parliament, which is political by nature.
The Constitutional Court declared contrary to the Fundamental Law those provisions of the Act which resulted in the applicants losing their former status as churches. In view of the character of legal remedy of the constitutional complaints, it ordered the retroactive annulment of the unconstitutional provisions and excluded their application. Therefore, Decision no. 8/2012 of Parliament on the refusal of the acknowledgement as a Church and the unconstitutional provisions of the Act on Churches will have no legal effect. Those churches specified in the annex to Decision no. 8/2012 of Parliament and which submitted petitions to the Constitutional Court did not lose their status as churches; their transformation from Church to association could not be enforced.
The Constitutional Court emphasised that in its decision it did not examine whether the applicants met the conditions for acknowledgement defined in the Act on Churches, it reviewed the regulations of the Act in the framework of concrete norm control. The decision of the Constitutional Court did not affect the legal status of those Churches specified in the annex of the Act and acknowledged previously by Parliament.
III. Justices Elemér Balogh, András Bragyova, András Holló, Miklós Lévay attached a concurring opinion and István Balsai, Egon Dienes-Oehm, Barnabás Lenkovics, Péter Szalay and Mária Szívós attached a dissenting opinion to the decision.
Supplementary information:
As of 1 April 2013 was supplemented by Paragraphs 3-5. The new Paragraphs read as follows:
Parliament may recognise, in a cardinal Act, certain organisations that serve a religious mission as a church. The State collaborates with them in the public interest. A constitutional complaint may be filed against provisions of the cardinal Act concerning the recognition of churches.
The State and churches and other organisations serving a religious mission operate separately. Churches and other organisations that serve a religious mission are independent.
The Cardinal Act defines the detailed rules pertaining to churches. It may require an organisation with a religious mission to fulfil certain requirements in order to be recognised as a church, namely it must operate for a considerable period of time, have societal support and be suitable to cooperate with in the interest of community objectives.
- Decision 164/2011, Bulletin 2011/3 [HUN-2011-3-006].