- The ECHR and the Hungarian Christian Mennonite Church
Judicial activism undermining the European human rights system or the victory of religious freedom ? Some observations on the Case of Magyar Keresztény Mennonita Egyház and Others v. Hungary
In this case, the majority came to the conclusion that Hungary violated Article 11 of the Convention read in the light of Article 9. Other issues – like the discrimination between various religious communities – were not examined in this procedure. The Court has left the Government and the applicants six months to reach an agreement on a just satisfaction. However, Robert Spagno (judge of the European Court of Human Rights) closes his dissenting opinion with a warning : he underlines that unrestrained expansion of the substantive reach of the Convention runs the risk of undermining the system of European supervision of human rights.
1. The subject matter of the case
The new Hungarian regulation of the status of religious communities (see Legal Status of Religion > General overview > A new Fundamental Law) has brought a series of changes in the last three years. The first new law (Act C/2011) was abolished by the Constitutional Court for formal reasons (Decision 164/2011 (XII. 20) AB), whereas the second new law (Act CCVI/2011) entered into force on January 1, 2012. The Constitutional Court however abolished several provisions of this law a few months later (Decision 6/2013 (III. 1.) AB). The Parliament has undertaken a set of amendments to correcting failures of the law (Act CXXXIII/2013), and has even amended the Constitution itself to prevent further discussion on the fundamental elements of the new religion law (fourth amendment (March 25, 2013, fifth amendment September 26, 2013).
Applicants complained for the loss of their status of registered churches since January 1, 2012. As from that date they merely qualify as religious associations, and they are not entitled to any budget subsidies (§22 of the decision). They argued that the status of a “church” was the only one adequate for the special needs of religious communities. They also declared that the new requirements of the recognition procedure were neither objective nor reasonable, and that the competence of the Parliament has turned the recognition procedure into a political one. They are claiming that the state has thus lost its neutrality and impartiality in the recognition issues.
The rapidly changing Hungarian law had caused difficulties to the Court. A number of important rights are now open to all religious communities, but the Court still regards them as rights reserved to recognized churches. Examples are the right to maintain cemeteries, to produce religious printed material, and to receive donations or even budget subsidies (§25). These rights belong to a long list of rights that are open to all communities within the new two-tier system. Whereas free exercise of religion and autonomy is ensured to all, some rights are still reserved to recognized churches. One of these is the right to offer religious education in public schools (practically only the two or three largest denominations have a realistic possibility to make use of this right). Another significant difference is that taxpayers may assign 1% of their income tax to a church of their choice, whereas religious associations are excluded from this possibility. Additionally, public service activities (to run schools or social institutions) of recognized churches enjoy public funding equal to that of state run institutions, whereas other service providers only receive a partial funding and need to enter into a contractual scheme with the government to receive additional funds.
The Court considered the de-registration (re-qualification) of the applicants as an interference with their rights enshrined under Article 9 and 11 (§83). The measure was undoubtedly prescribed by law and the Court also accepted that the reason of the measure was to protect the public order – and uppermost to eliminate entities claiming to be of religious nature but in fact abusing the system for financial benefits (86). Under the 1990 law, 406 “churches” were registered and the state was unable to filter out “business churches” that were only set up to obtain funds but did not perform genuine religious activities. The dispute concentrated on whether the measures introduced were proportionate (necessary in a democratic society).
The Court regarded the case of the Church of Scientology Moscow v. Russia to be relevant in the given case (§44), taking into consideration that in Hungary, previously registered communities were neither banned nor deprived from legal personality, but that their status was re-qualified. As a consequence of the re-qualification, the applicants have lost certain privileges (§55). Moreso, beyond financial benefits, the distinctions in the legal status may lead to social prejudices (§92). The principle of neutrality and impartiality should be observed in religious issues. The conclusion of the Court is as follows : “The Court concludes that, in removing the applicants’ church status altogether rather than applying less stringent measures, in establishing a politically tainted re-registration procedure, whose justification is open to doubt as such, and finally, in treating the applicants differently from the incorporated churches not only in the possibilities of cooperation but also in securing benefits for the purposes of faith-related activities, the authorities neglected their duty of neutrality vis-à-vis the applicant communities. These elements, jointly and severally, enable the Court to find that the impugned measure cannot be said to correspond to a “pressing social need” (§115).
3. Misunderstandings and possibilities
The wording of the judgment reflects a misunderstanding in the assessment of the Court. The Court rightly refers to previously registered churches (§§6, 17, 22, 62, 69, 81) that gained a status under the 1990 law. The 2011 law introduced a two-tier system differentiating between recognized churches and religious associations. Recognition is done by the Parliament. 31 communities have been recognized so far. Registration under the 1990 law and recognition under the 2011 law may sound similar, but are of a completely different nature. Contrary to the assessment of the Court, “previously recognized churches” (§96) were not deregistered, since no religious community was recognized previously. In fact, all previously registered religious communities lost their status. Some of them were recognized under the new system while others were re-qualified as religious associations.
In a remarkable paragraph, the Court suggests that two-tier systems and state-church systems are only compatible with the Convention if they existed before the ratification of the Convention (§100). In fact, the Convention provides for religious freedom, but not for a specific form of church-state relations.
Strangely, the Court has neither pointed out a specific measure that has led to the violation, nor judged the system adopted by Hungary as unacceptable. The Court regarded the state measures “jointly and severally” sufficient to judge that the impugned measures do not correspond to a pressing social need (§115). Consequently, it is difficult determine what kind of legislative changes are needed, beyond a financial settlement with the applicants. As rights relevant to the free exercise of religion are equally ensured to recognized churches and religious associations, remaining differences should be re-assessed. One of them could be to extend the tax-assignment system to religious associations.
- The passage of schools under the administrative authority of Churches