eurel     Données sociologiques et juridiques sur la religion en Europe et au-delà


  • 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 Law and religion > Legal framework > The fundamental Law of January 2012) 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.

2. Reasoning
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.

Balázs Schanda
  • When educational institutions come under the administrative authority of the Churches

Observers attentive to the Hungarian Churches’ involvement in the field of education or social work have recently come to notice a radical change in the statistics. Specifically, over the last three years, there has been unprecedented growth in the number of schools that have been transferred under the supervision of the Churches. In the academic year 2009/2010, which preceded the return of the Democratic Alliance (Fidesz and Christian Democrats) to power, the State directly or indirectly administered 2,133 nursery schools, 2,019 primary schools, 442 vocational schools, 467 vocational secondary schools and 407 secondary schools. Meanwhile, the various Churches administered 139 nursery schools, 194 primary schools, 33 vocational schools, 31 vocational schools and 104 secondary schools. In comparison, during the academic year 2002/2003, there were 3,421 public primary schools and 150 denominational schools. Before the spring 2014 elections, which brought the right-wing government back into power, the number of educational institutions dependent on the Churches increased by more than 50%. For a few years after the change of regime, the Churches provided education for only a few thousand students ; this number has now reached 250,000 (out of a population of 10 million). While some consider that the churches in Hungary are simply “taking hold of the public schools”, the situation is much more complex. The main driving force behind this change in the delegation of services in the field of education is the decision to centralise all schools under the responsibility of municipal/territorial authorities. In accordance with the regulations that came into effect on 1 January 2013, from the point of view of the professional management, all schools administered by territorial bodies would come under the control of the Institut Klebelsberg Managing Centre (KLIK). While in principle this does not bring any fundamental changes in the day-to-day running of the schools, one of the most important powers of the headmasters, namely the appointment and dismissal of teachers, is transferred to the power of the KLIK, while the appointment of headmasters is the responsibility of the Minister of Education. Though the teaching staff, parents and student communities, along with the local municipal council, give their opinion on candidates for the posts, it has only advisory value. In 2013, the schools’ right to self-management was also abolished. However, the transfer under state control only relieved the municipality of the responsibility for staff salaries. The maintenance of buildings and operational costs remained the responsibility of the municipality. The transfer of schools under State control, according to many headmasters - thus agreeing with Zoltan Pokorni, President of the National Assembly’s Educational Commission and a former Minister of Education - has the downside of making proceedings more unwieldy. Every decision now has to be approved by central management, a lengthy process given the hierarchical obstacles. The slightest expenditure requires approval, and thus a lengthy authorisation process, as each school is now managed by two separate entities. The KLIK (established to oversee Hungary’s more than 7 000 general schools, secondary schools, vocational schools and vocational training schools) is responsible for all vocational matters, while the local or territorial governments are responsible for operations. Disagreements arise regarding expenditure, while funds received for operating costs remain very low. The institutions’ loss of autonomy is perceived negatively. Deeming that their role is now reduced to providing the buildings’ maintenance budget, without any real possibility of intervening in the affairs of the school, several local administrations have decided to put the schools under the administration of the Churches. Consequently, local authorities are fully freed of the expenses of running schools. The authorities’ motivation to ’escape’ centralisation was so strong that when the ’historical’ churches did not accept the role of administrator, along with the costs it carried, the local authorities turned to other religious groups. Nonetheless, according to representatives of the main Churches, the various denominations have been forced to turn away many of the proposed facilities. The criteria for accepting these institutions vary depending on the Church involved. The Catholic Church has accepted offers from all over the nation, in some cases saving schools in danger of closure (e.g. a primary school with over 100 Roma children in Pécs). For the Lutheran Church, the main criterion is to have local Lutheran communities already on site, and supporting the transfer initiative and existing project. As for the Reformed Church, it has accepted schools in locations where was already planning to undertake an educational project in the context of a public institution. The transfer of this large number of schools to the administration of the churches is due to rational reasons as well as to biases against the central administration. Through local relations, local politicians and municipalities hope that by transferring schools to a given denomination, they will, at least indirectly, have a say in operations. Because of the legislation on churches and their funding, the prospect confessionalising schools offers some stability. Since the Vatican Agreement (1997), despite differences in views between governments and churches in the field of education, confessional schools have been found to offer a better quality education with more balanced finances. The Church, as administrator, is entitled to additional subsidies provided for by law (in 2013, 7 billion Forint). In addition, the multiple tax breaks and exemptions available help improve the stability and freedom of the schools. In many cases, religious schools are exempted from certain regulatory requirements (appointing leadership, curriculum, textbook selection, etc.) and there is less risk of reorganisation or closure. The significant funding comes with a great deal of freedom. In comparison, the freedom which large private educational institutions enjoy is synonymous with poor financial conditions. As for public schools, the recent centralisation means that both their funding and their freedoms are limited. According to the Hungarian journalist Levente Teleki, the difference between state and church schools is not due to the improvement in the conditions enjoyed by the latter, but to the fact that, while their conditions did not change, the schools’ situation under local government has deteriorated (e.g. teachers’ salaries have stagnated or decreased since centralisation). The transfer of responsibility for educational (or social) institutions also raises problems other than financial. At the press conference held on 4 December 2014, the President of the Hungarian Bishops’ Conference emphasised that he considers it contrary to the religious neutrality of the State if the government or local administrations offer institutions freely to a Church of their choice. In such a case, their decision would determine from which religious environment people or social or educational services can or should benefit.

See the Hungarian article "Egyházi iskolák : menekülés az állam elől".

Rozalia Horvath

D 10 décembre 2014    ABalázs Schanda ARozalia Horvath

CNRS Unistra Dres Gsrl

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