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Aspect juridique des relations Eglise-Etat

According to the current constitutional regulations, the relationship between the state and churches and other religious denominations is defined by the following five principles : equality of rights, impartiality, autonomy and independence, cooperation and bilateralism. In the current Constitution there is no specific mention of the separation of Church and State.

1. Equality of rights of churches and other religious denominations

The principle of equality of rights of churches and other religious denominations seen from the angle of the judicature of the Polish Constitutional Tribunal primarily provides that all religious denominations should enjoy the freedom to perform their religious functions. In other words, they are equally entitled to perform those functions. Thus there are no reasons to differentiate their freedoms in such issues as defining one’s own religious doctrine, organizing the cult, conducting religious services, adopting one’s own law for internal matters and finally, educating and employing clergymen. On the other hand though, the fact that only the legal situation of the Catholic Church was sorted out by way of an international agreement (the Concordat) by no means constitutes an infringement of the principle of equality (as evidently follows from art. 25 para. 4 of the Constitution). It is only the Catholic Church that is represented by a body (the Holy See) which is a separate legal entity in international law.

2. Impartiality of public authorities

The impartiality at issue means an objective attitude, free from bias, characterized by an equal approach to all beliefs which respect the values fundamental to the Polish legal system. That amounts to the prohibition on favoring only one relief or a set of beliefs. In addition, the declarations on the veracity of some beliefs by public authorities are also forbidden. Nonetheless, impartiality cannot be understood as an imperative to eliminate religious elements from public life. Such an understanding would defy the constitutional provision under analysis. Public authorities are clearly obliged to ensure the freedom to express one’s convictions in public life. People who perform public functions have a full right to participate in religious celebrations. Moreover, as was emphasized in the judicature, hanging a cross in the conference room of the City Council does not run counter to the provision discussed.

3. Autonomy and independence

Importantly, the autonomy and independence stipulated in art. 25 para. 3 has no absolute character. The state and churches and other religious denominations are entitled to those rights as long as they operate ‘in their own sphere’. Those spheres are however not defined in the Constitution and can only be delineated on the basis of the assignments carried out by the subjects concerned.

4. Cooperation

The essence of the cooperation at issue should be understood as a set of coordinated actions, jointly undertaken and aimed at reaching the same objectives. However, it should not be considered as the connection between the state and any church or religious denomination. One speaks only of the cooperation of two independent institutions, accomplished on equal terms.

5. Bilateralism

Since the Holy See is a separate legal entity in international law (which has no equivalent in the case of non-Catholic denominations), the special procedure for regulating the legal situation of the Catholic Church seems to be fully justified. The principle of bilateralism in relation to this Church provides that its legal situation is based on the provisions of the international agreement, that is the Concordat. As far as other religious denominations are concerned, that principle is expressed by the regulation according to which statutes regulating the relations between the Republic of Poland and a given religious denomination are to be based on agreements, formerly concluded by the Council of Ministers and representatives of a denomination.
In the case of the Catholic Church, the international agreement is not the only procedure for regulating its legal situation. Its relations with the state – according to art. 25 para. 4 – are defined not only by the Concordat, but also by statute. Statutory provisions, however, ought to be in conformity with the Concordat, as an international agreement ratified after the former consent granted by the statute.
Also in the case of non-Catholic denominations, statutes regulating their relations with the state are based on agreements concluded by the representatives of a given denomination. Owing to that regulation non-Catholic denominations received, just like the Catholic Church, a guarantee of the participation in the enforcement of the law regulating their legal status. There is no doubt in the Polish doctrine of church-state law that concluding an agreement between the Council of Ministers and the representatives of a given religious denomination constitutes a sine qua non condition for passing a statute, as mentioned in art. 25 para. 5 of the Constitution, and the content of the statute should remain closely dependent on the provisions of a given agreement.

See also : RYNKOWSKI Michał, "State and Church in Poland", in ROBBERS Gerhard (ed.), State and Church in the European Union, Third ed., Baden-Baden, Nomos, 2019, p. 461-482.

D 28 septembre 2012    APiotr Stanisz

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