Press release regarding the constitutional review of the Act on Churches27 February 2013
The Constitutional Court has declared in its decision of 26 February 2013 that some provisions of the Act CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities (Act on Churches) are contrary to the Fundamental Law, thus the Constitutional Court annulled them.
Several petitions were submitted to the Constitutional Court in order to initiate constitutional review of the Act on Churches. Seventeen religious communities, which had functioned as Churches before but lost their status because of the new Act, submitted constitutional complaints and also the Commissioner for Fundamental Rights initiated posterior norm control. The petitioners challenged primarily the rules of procedures on the acknowledgement as a Church because the guarantees of fair trial and the right to legal remedy were not ensured after the decision of the Parliament. Moreover, the Members of the Parliament take political aspects into consideration during the decision-making process. According to the petitioners, the regulation violates the principle of ideological neutrality of the State, thus results in discrimination against certain religious communities and violates the right to freedom of religion.
First of all, the Constitutional Court has declared as a constitutional requirement that the State shall ensure for the religious communities to get special religious status which must based on objective and reasonable criteria, in harmony with the right to freedom of religion, in a fair procedure and besides legal remedy which allows them to function independently. However, the Constitutional Court has pointed out that it is not a constitutional expectation that every Church has the same rights or the State cooperates with all the Churches to the same extent. The available differences when practising the rights in the context of the right to freedom of religion remain in constitutional limits until it is not based on discriminative legal regulation or it is not the results of discriminative practice.
The Constitutional Court has not argued the right of the Parliament – if the procedure regulated in the previous Act is inefficient to filter out the organisations performing non-religious activity and to act against the organisations operating breach of the law – to further specify the substantive conditions of the acknowledgement as a Church, to incorporate additional guarantees to the acknowledgement procedure or to ensure more effective legal instruments against the breaches of law. The acknowledgment of the status as a church of an organisation 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 later it turns out that the preconditions to be deemed as a church did not exist. Ensuring the fair procedure and the possibility for legal remedy are constitutional requirements in connection with the procedure for reviewing the church status as well.
The Constitutional Court, during the examination of the regulations of Act on Churches, has declared that the Act does not contain any obligation for detailed reasoning regarding the proposal or the decision which refuses the acknowledgement as a Church. The rejected religious communities do not get any official, written explanation which contains the reason why they could not get religious status or why they could not keep it. Furthermore, the Act does not contain any deadline for the Parliamentary Committee to make a proposal or for the Parliament to make the decision and does not ensure possibility for legal remedy in case of the rejecting decision or the lack of the decision. The acknowledgement of religious status by the voting of the Parliament, the fact that it is the Parliament who decides on the status of churches, might result in decisions based on political aspects. The decision-making in these individual cases, which should be assessed by legal discretion and which have fundamental legal aspects as well, should be delt by the independent courts and not transferred to the Parliament’s competence, which basically has political character, and so it is incompatible with the Fundamental Law.
Based on these arguments, the Constitutional Court has declared contrary to the Fundamental Law those provisions of the Act which resulted in the losing of the former status as churches of the petitioners. Taking the character of legal remedy of the constitutional complaints into consideration, the Constitutional Court has ordered retroactive annulment of the unconstitutional provisions and has excluded their application. Therefore, the Decision n. 8/2012 of the Parliament on the refusal of the acknowledgement as a Church and the unconstitutional provisions of the Act on Churches shall not have any legal effect. The Churches, which are specified in the annex of the Decision of the Parliament and which submitted petitions to the Constitutional Court, did not lose their status as churches and their transformation from Church to association could not enforced.
The Constitutional Court has emphasized that in their decision they did not examine whether the petitioners meet the conditions of the acknowledgement defined in the Act on Churches, they just reviewed the regulations of the Act in the frame of the concrete norm controll. The decision of the Constitutional Court did not affect the legal status of those Churches that are specified in the annex of the Act and acknowledged by the Parliament before.
Dr. Elemér Balogh, Dr. András Bragyova, Dr. András Holló, Dr. Miklós Lévay judges attached concurring opinion and Dr. István Balsai, Dr. Egon Dienes-Oehm, Dr. Barnabás Lenkovics, Dr. Péter Szalay and Dr. Mária Szívós judges attached dissenting opinion to the decision.