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La situation juridique des communautés religieuses dans la République de Slovénie

The Republic of Slovenia is a constitutional democracy. According to this, decisions of the parliamentary majority are legitimate only when they are taken in accordance with the Constitution. The Constitutional Court holds a special role in determining this accordance and also in the protection of human rights, which is why quotations of the Constitutional Court (CC) in the text below are so frequent. Also, the reader has to be reminded that the Republic of Slovenia is currently only 30 years old. The relevant case law is therefore still forming its foundations.

The Constitution provides for religious freedom (Article 41) and states separation of the state and religious communities (Article 7).

The human right of freedom of religion will not be discussed in this article, unless necessary, since Slovene understanding of this human right should not be unique, but a subject of international conventions and rules of the European Court of Human Rights.

The principle of separation

As we were told by the Constitutional Court, the principle of separation between the State and religious communities is a humanistic one and not a principle which serves to protect the state against religious communities. The aim of this principle is to ensure true freedom of conscience and, in a broader sense, pluralism as an essential component of a democratic society, and the equality of individuals and religious communities (CC : U-92/07, par. 102). The Constitutional Court has developed an interpretation of the separation as the intertwining of three elements : (a) the religious or ideological neutrality of the state, (b) the autonomy of religious communities in their own sphere and (c) the equal relation of the state towards all religious communities (CC : U-I-92/07, par. 99). One of the important rules on separation has put forward a principle of non-identification. Public hospitals and prisons were not allowed to employ religious specialists for religious spiritual care of patients and prisoners, because such an act would give a wrong impression that the religious spiritual care is offered by the state (CC : U-I-92/07, par. 147). On the other hand, employment of religious specialists in the Slovene Army is not problematic, because the state must, if necessary for the exercise of positive religious freedom, neutralise the curtailed freedom of individuals by active conduct intended to reduce resulting disadvantages (CC : U-I-92/07, par. 158-177). To understand the extent of the separation, it is important to see that any content of the human right of freedom of religion is consistent with the principle of separation (CC : U-I-92/07, par.104). The latter does not prevent the state from establishing positive relationships, forms of cooperation, and joint efforts with religious communities that perform charitable activities, such as the state has in this respect with other organisations of civil society. In doing so, it is also undeniable that the legislator assesses in general that religious communities with their fundamental mission (care for religious freedom as a human right), perform an important and useful role in terms of strengthening human dignity in a modern democratic society that goes beyond the pursuit of individual goals (CC : U-I-92/07, par. 103). Cooperation of the state with religious communities is not in itself illegal from the perspective of constitutional law, even if it exceeds the scope of religious freedom, as long as the state is religiously neutral and does not identify itself with religion or religious communities (CC : U-I-92/07, par. 104). This is also the case with public financing of religious communities : it is admissible, as long the state does not discriminate.

Status of the Catholic Church

The legal position of dominant Catholic Church is determined by the Agreement between the Republic of Slovenia and the Holy See on Legal Issues. This single, carefully worded document demonstrates the singularity of the Catholic Church, but these rights have been determined on the basis of the rights of all religious communities, so no special rights or privileges were granted. The agreement was ratified in 2004 after being submitted to the Constitutional Court for review. Its mandatory interpretation of some articles is confirming an egalitarian approach – also stressing that the Catholic Church will respect the legal order of the Republic of Slovenia when performing its activities in so-called mixed areas (CC : Rm-1/02-21, par. 33) and establishing a duty to negotiate for the State when dealing with further possible outstanding issues of Catholic Church (CC : Rm-1/02-21, par. 52).

Religious groups and the Slovenian Law : The Religious Freedom Act

The Religious Freedom Act (RFA) specifies provisions on religious freedom and defining the main frame of legal position of religious communities. The latter is done by establishing criteria, rules, and procedures for the registration of religious communities, by defining their special rights and by setting basic standards in their relations to the State.
A religious community is a legal person of private law, especially designed for exercising a collective dimension of human right of freedom of religion. This institution is easily accessible : to establish a religious community, one must gather at least 10 founding members, describe religious or spiritual belief of the group, its ceremonies and eventual religious holidays and form basic internal rules. Other requirements concern either the formation of a legal body (for example defining its name, address, and legal representative) or address the minimal administrative skills of founding members (RFA, Articles 13 and 14). Registration of a religious community is optional, the religious freedom of all non-registered religious communities is protected by the Constitution. Religious communities are not allowed to perform profitable activities. There is no direct prohibition of this activity in the RFA, however, the permission is absent, so religious groups are financing themselves through donations, voluntary contributions, and their property ; they are also able to receive public funds (RFA, Article 29). As already stated, the institution of a religious community is suited to serve religious purposes and activities. These are not listed in the RFA, but they may be identified from case to case regarding their closeness to the core of particular religious belief. Religious communities are also free to perform any other activity, when they meet conditions defined for every resident (CC : Rm-1/02-21, par. 18) – he or she and a religious community have to create a legal entity, suitable for a particular kind of activity (for example formation of a business enterprise for profitable activity, formation of an educational institution for running a school or registration of a media for distributing radio programmes).
There are two special rights of religious communities which cannot be summarized under the human right of freedom of religion. The first is a right to conclude agreements between government and registered religious communities or their supreme authorities, including those with an international legal personality (RFA, Article 21). The second represents one of the few examples of direct financing of religious communities from public funds (RFA, Articles 27 and 28). Religious employees of registered religious communities may receive 48% of their social security costs from the State, when a registered religious community is able to demonstrate “the reasonable proportion” of 1000 members for one religious employee. At the moment, this special right is granted to around 900 religious employees of seven religious communities ; 95% of them belong to the Catholic Church. The rest of special rights define general terms for religious spiritual care in hospitals and residential social care institutions (RFA, Article 25), in prison (RFA, Article 24), in the Slovene Army (RFA, Article 22), and in the Police (RFA, Article 23), and describe freedom of construction and use of premises and buildings for religious purposes (RFA, Article 26). The right to religious spiritual care in these institutions is designed as a right of residents or employees to receive this care, and not as a right of religious communities to offer it.
By setting the tasks of the competent state authority (RFA, Article 30) a mode of relations between the State and religious communities is raised. These tasks were developed from the practice of the pre-existent Government’s Office for Religious Communities. They include administrative, expert, supportive, and dialogue functions. It is clear that the role of the competent state authority is neither designed as a service of one or many religious communities nor as a merely administrative state body.

D 22 juin 2021    AGregor Lesjak

CNRS Unistra Dres Gsrl

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