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Legal framework

Type of legal regime

The regulations pertaining to the institutional relation between the state and churches and other religious denominations appear in Article 25 of the Constitution of the Republic of Poland of (...)

The regulations pertaining to the institutional relation between the state and churches and other religious denominations appear in Article 25 of the Constitution of the Republic of Poland of 2nd April, 1997. The model established is based on the respect of freedom of conscience and religion (art. 53). That model significantly differs both from the regulations adopted in countries with a constitutionally established official religion (e.g. Greece) and in extremely secular countries (e.g. France). It has got a number of features in common with the systems existing for example in Germany or in Italy, which makes it possible to rate Poland among the countries which assume a friendly model of church-state separation.

D 28 September 2012    APiotr Stanisz

Legal aspect of Church-State relations

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 (...)

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 September 2012    APiotr Stanisz

The legal status of churches and religious communities

Churches and faith communities differ in their methods of registration, but all legally registered organizations enjoy the same rights:
1) Fifteen of them operate under a special law which (...)

Churches and faith communities differ in their methods of registration, but all legally registered organizations enjoy the same rights:

1) Fifteen of them operate under a special law which governs the relations between the state and a church or a given religious community.

This group includes all large – as well as the oldest - religious communities (except for Jehovah’s witnesses who, despite being the third largest community, do not operate on the basis of a special law, but on the basis of the law of 1989). The churches and religious communities belonging to this group are listed below, in chronological order of the legal act:

 Orthodox Old believers Church in Poland (by order of the President of the Republic on 22 March 1928)
 The Islamic religious community (21 April 1936)
 The Karaite religious community (21 April 1936)
 The Catholic Church (17 May 1989)
 The Polish Autocephalous Orthodox Church (4 July 1991)
 The Church of the Confession of Augsburg in the Republic of Poland (Lutheran Church) (13 May 1994)
 The Protestant Reformed Church (13 May 1994)
 The Protestant Methodist Church (30 June 1995)
 The Church of Christian Baptists (30 June 1995)
 The Church of Seventh Day Adventists (30 June 1995)
 The Polish Catholic Church (30 June 1995)
 The Union of Jewish Religious Communities (20 February 1997)
 The Catholic Church of the Mariavites (20 February 1997)
 The Old Catholic Church of the Mariavites (20 February 1997)
 The Pentecostal Church (20 February 1997)

The various denominational entities enjoy legal personality under the aforementioned laws. As to the Catholic Church, the Concordat explicitly recognized the legal personality of entities that have acquired this status under canon law. In rare cases, legal personality is granted by order of the Minister of the Interior and Administration: these cases include the Catholic Caritas Foundation, the Protestant Diakonia or the broadcaster Orthodoxia.

2) Approximately 150 other groups function on the basis of the 1989 law guaranteeing freedom of conscience and religion, which has established a general framework for all churches and religious communities in Poland.

Since 1998, it has been possible for a group of at least 100 Polish citizens with full legal capacity to apply for registration of a church or religious community. In the first version of the 1989 law, the minimum number of members amounted to 15, which led to some abuse, particularly with regard to exemption from military service, tax advantages and duty-free imports.

The Minister of the Interior and Administration is responsible for registering religious communities. In accordance with the 1989 law and the order of 31 March 1999 on the registration of churches and religious communities, the application must contain the following elements: a list of members, information on the general objectives, the principles of doctrine and ritual practice, the headquarters, any subordinate bodies and the statutes.

Since 1989, about 158 churches and religious communities have been registered; 48 applications have been rejected, with the request being turned down on several occasions due to formal criteria. The criteria are equivalent to those of Article 9(2) of the European Convention on Human Rights and the minister checks, inter alia, if the objectives and dogmata of a church or religious community are likely to endanger public order or security, or contravene the right to life, morality or the rights of parents. To take one example: the Raëlians, who in 2002 were the first to claim that a human being had been cloned, have not been listed in the Polish registry since 1998. The minister’s refusal was confirmed by the main administrative court (Naczelny Sąd Administracyjny) in its decision of 22 January 1999.

D 28 September 2012    AMichal Rynkowski

CNRS Unistra Dres Gsrl

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