Legal
Framework of State-Church Relationships in
1.
Introduction
1.1 Significance of the problem and definition of the
task
The
democratization of relationships between state and Church in
-
harmonizing legislature on state-Church
relationships with the international legal tools and the European legal
standards;
-
forming a favorable
social context for adequate and effective operation of the relevant laws.
My analysis and
recommendations will be focused on the first direction, for:
-
dynamic and important changes are currently taking
place with regard to it;
-
comparative analysis of the state and problems of
this process in all three countries that I am studying, would be useful as a
means of mutually “checking our compasses” and obtaining
additional information and arguments on disputed issues in the current
legislative process.
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1.2.
Comparative picture of the current state of the legal framework of state-Church
relationships in the countries being studied: all is yet to be done
In
all three countries modern democratic constitutions have been adopted, which
guarantee equal civil rights and liberties with regard to thought, conscience,
religion, association; also guaranteed is the equality of national minorities
and of religious communities. However, the legislature regulating relationships
between state and Church, which is meant to give a concrete and effective legal
framework of the general constitutional assertions, is at a
different stages for each of the countries:
- Since 1993, when the Law on the Legal
Situation of Religious Communities in the Republic of Serbia was annulled;
there is a dangerous legal vacuum with regard to the relationships between
state and religious communities: since 2002, three draft laws have been worked
out and presented for discussion; they met with criticism on the part of small
religious communities, national and international human rights organizations,
and even some of the traditional churches; currently an improved version is
being prepared of the draft “Law on Freedom of Belief, Churches, Religious
Communities and Religious Associations” of July 2004.
-
Since 1997, a Law on Religious Communities and
Religious Groups was passed in the
-
Since 2002 there is an operative Religious
Denominations Act in the Republic of Bulgaria, which takes into account the
basic European standards and international legal tools, but which has
periodically been criticized on separate points by some parties and human
rights organizations and by the structures of the European Commission, which
implies that this law will evolve and be perfected in the future.
The aim of the current
analysis is: 1/ to highlight the disparities between separate article of the
/draft/ laws and: a/ general constitutional principles; b/ other articles of
these same /draft/ laws; c/ international legal tools; d/ practices and trends
in most European countries; 2/ to reveal the causes of these contradictions; 3/
to offer recommendations for removing these contradictions.
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1.3.
The European legal identity/standard and the international legal
instruments regarding the Church-state relationships: freedom, equality, fraternity
The basic legal acts and
documents that establish the principles of state-Church relations in developed
democracies are the following:
1/Universal
Declaration of Human Rights /1948/, art.18; 2/International Covenant on Civil
and Political Rights of the United Nations /1976/, art.18; 3/ European
Convention for the Protection of Human Rights and Fundamental Freedoms /1953/, art.9: “1. Everyone has
the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or
belief, in worship, teaching, practice and observance.”
In
assuming the freedom of religion to be a core principle of European legal
identity with regard to state-Church relationships, the international documents
in this sphere affirm the rights of separate countries to take into account in
their legislature their national and cultural specificity: Art. 22 of the Charter of Fundamental Rights of the EU;
* * *
2.
The 2004 Draft Law on
Freedom of Belief, Churches, Religious Communities and Religious Associations:
2.1. Equality of Religious
Communities and a Privileged Status
On
The most debated and
disputable points in this law are:
Article 4, which has particularly been the
target of criticisms and discussions. It gives a legally privileged status to
several churches and religious communities: the Serbian
Orthodox Church, the Islamic Community, the Roman Catholic Church, the Jewish
Community, the
According to art. 63,
religious associations that have been legally recognized are automatically
entered in the Register, whereby their status of legal entities is confirmed.
The Register of Religious Communities is kept by the Ministry of Religious
Affairs. In some European countries the registration of religious communities
is a function of the courts of law, which assures greater impartiality and
objectivity, providing, of course, that the level of democratic culture of the
country is such as to guarantee the independence of the judiciary.
In September 2004
the Ministry of Religious Affairs proposed a new, third draft law “On Religious
Organizations”, in which the rights and
liberties of the various categories of religious communities are dealt with
together, synthetically, not separately; their equal standing is stressed. The
category of “religious organizations” implies the common traits of religious
communities, but their separation and distinction into types remain in this
draft law as well, and even more clearly and categorically than in the previous
two variants.
The causes of these problems
and contradictions lie in the complicated, ambiguous stand of the legislator:
1/ the necessity of taking into account the European legal tools in this
sphere, which have been adopted by the country; 2/ the need to provide legal
continuity with the national legislature that has existed until now; 3/ the
need to take into account the social context, the historical and current
positions and authority of the separate confessions.
Although
privileged status has likewise been given to certain so-called state or
national churches in other countries as well, there is a trend
towards reduction of the relative weight of state Churches and towards granting
greater rights to other confessions; in recent years this tendency has become
evident in Sweden and Finland, in Italy, Spain, and Portugal.
Recommendation:
To proceed gradually, concurrently with the overall democratic development
of society, to standardizing the rights of religious communities. In order to
achieve equal rights and limit the basis for conflict between the separate
religious communities, confessional religious teaching in state schools should
gradually be transformed into non-confessional, which is the trend in most
European countries.
2.2.
The State Standard: Obligatory Legal Status
The obligatory character of obtaining
legal status by religious organizations and their inscription in the Register
as a condition for performing religious, cultural, educational and other
activities in the analyzed draft laws could also be interpreted as forms of
restriction and regulation on the part of the state. In some European
countries, (both western and eastern), more flexible alternatives are
available: the obtaining or not of legal status by a religious organization is
a matter of choice and preference of that organization. The positive point is
that, according to art. 64, a religious community has the possibility of
registering as a civil association according to the respective law.
Recommendation: to go on
gradually from obligatory to optional legal status of the religious
communities.
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2.3.
Conditions for Acquiring Legal Status: “Monopoly” vs. “Market”
The
Section IX of the Draft Law lists the documents required for registration of the new
religious associations: name, address, status, basic principles of the
religious doctrine, etc., which were also demanded by the 2002 draft law, but
with one important exception. The earlier draft law required a minimal number
of 10 members for granting legal status of the associations, while the 2004
draft law requires 1000 members, a change that was also seriously criticized by
the smaller religious communities.
The requirement for such a large number of
members as a condition for obtaining legal status is not in keeping with the
prevalent practice in European countries, where not more than 10-15 members is
the minimum. A high membership barrier restricts the possibility for smaller
religious communities, for new religious movements, to acquire legal status,
especially when combined with the requirement for obligatory legal status as a
condition for performing religious activities. Thereby this regulation stands
in contradiction with the above-mentioned legal principles of equality of
religious communities. Quite a few countries, west and east European, set no
requirements at all concerning the number of members.
Article 69 stipulates that the term for
making the decision regarding the registration is 60 days, and there is a
30-day term for making the needed additions to the incomplete registration.
This is an improvement on the previous draft law, where the term was 90
days. But a term that is closer to
European standards and more widely applied is 30 days.
Recommendation: With regard to the
requirement for a minimal membership of a religious organization as a condition
for acquiring legal status, to decrease the minimum down to what is customary
for most European countries, or to completely eliminate this requirement. In
the documents necessary for applying, the one concerning the fundamental
principles of the religious doctrine should be eliminated, inasmuch as the
object of assessment and the possible sanction should be the actual activity,
not the ideas of a given religious community. The term for obtaining an answer
concerning an application for registration should be decreased from 60 to 30
days, which is the term in most European countries. The organ of registration
should gradually shift from the state to the judiciary.
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2.4. Motives
for Dissolution of the Religious Community: Importance of the Context
Art. 72 defines
the cases where the legal entity status of the religious association is
annulled: when that association violates public order, when it acts against the
family and morality, when it instigates national or racial hostility, when it
represents a menace to the spiritual integrity and mental health of persons.
This formulation is comparatively close to
article 9 ECHR /entered into force on March 2004
in Serbia and Montenegro/ with its paragraph 2 stipulating that “Freedom to
manifest one’s religion or beliefs shall be subject only to such limitations as
are prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order, health or
morals, or for the protection of the rights and freedoms of others.”
At
the same time the social-political context is decisive in interpreting these
concepts and with regard to the risk of the state’s abusing them in order to
limit the autonomy of religious communities. Moreover, it would be more
adequate if the violations connected with health should be sanctioned: 1/
according to the Law on Health; 2/ as individual, not group violations,
otherwise it would amount to imputing collective guilt.
Recommendation:
The practice of revoking the right of existence of a given religious
community should be considered an exceptional, extreme measure inasmuch as it
falls under the definition of seeking collective guilt. Interpreting the
conditions under which the annulment is possible depends on the democratic
culture of a society, and so it is necessary to formulate them more clearly.
Violations of the law, connected with such general categories as “spiritual
integrity” and “mental health” should be the object of sanctions of the law on
health.
This slow and
painful evolution is a result of the complex situation in which legislators
must work in present-day
According to the actual recent information, the latest
discussions and changes in the Draft Law are in the context of the future of
* * *
3.
The Law on Religious
Communities and Religious Groups, published in issue 35 of the Official Gazette
of the
Part Two of the Law deals with the status and rights of
religious communities and religious groups, a problem that was subsequently debated in society and on which the Constitutional Court of the Republic
of Macedonia took a stand on several occasions.
Although the law
set itself democratic and peaceful goals, it contains quite a few problematic
points that are in contradiction with the Constitution of the
*
3.1. The State Standard: Obligatory Legal Status
Art.
3, paragraph 1 states that, “In the Republic of
Recommendation:
To pass gradually from obligatory to optional legal status of religious
communities. To afford the alternative /as in the Serbian and
Bulgarian laws/ for religious communities to acquire legal status as civic
associations as well under the respective law.
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3.2.
Conditions for Acquiring Legal Status: “Monopoly” vs. “Market”
Art. 10 defines
that “A religious group with headquarters in the
Art.11 /2/ requires detailed information
to be given when applying for registration, about the founders of the religious
group, its goals, a description of the quarters where it performs its religious
activity, and data about its leaders and representatives. Art. 13 and 14 confirm the need for
registration for obtaining the status of a legal entity.
The importance of
these regulations has been confirmed by the Constitutional Court of the
Recommendation: Decreasing the minimal membership
requirement for registration of a religious community to the number customary
in most European countries or dropping this requirement altogether. To set a specific term for responding to an
application for registration, preferably up to 30 days, as in most European
countries. To provide the possibility for reapplying when registration is
denied after the requirements of the registering organ have been met. To plan a
gradual reorientation of the registration function from the state to the courts
of law.
*
3.3 Freedom
and Public/state Interest; a Philosophical Problem
Art. 19 makes the
performance of religious activities outside locations specially meant for this
purpose, dependent on the consent of the Ministry of the Interior and the
Commission on Relations of Religious Communities and Groups: “Religious rituals and
religious activities may be performed in other facilities and places accessible
to the people as well, with permission of the authority in charge of internal
affairs, and previous opinion of the authority in charge of religious affairs.”.
Art. 21 allows that
religious meetings be prohibited when there is a risk to health, public order,
security, and the property of citizens. The categories of security, property, peace are
formulated quite generally, which permits their random interpretation in the
context of an undeveloped democracy. Art. 22 and art.
23 also restrict the rights of religious communities and groups: they give the
state the right to interfere in construction work and in the change of the
status of a religious community. At the initiative of the Helsinki
Committee on Human Rights, the Constitutional Court of Macedonia, at its
sessions of October 20 and November 10, annulled articles 19 and 23 of the Law.
These points in
the Macedonian Law are incompatible with art. 9, par. 1 of the Constitution of
the Republic of Macedonia, which stipulates that citizens are equal in their
rights and freedoms, with article 19, par. 1, which guarantees the freedom of
religious confessions, with art. 20, par. 1, which guarantees the freedom of
association for pursuing various interests, while according to par. 3 of that
article, the activities of citizens and parties cannot be aimed at provoking
military aggression or the kindling of national, racial or religious hatred and
intolerance. The grounds for the invalidation of some articles of the law by
the Constitutional Court of Macedonia refer also to art. 18 and 29 of the Universal Declaration on Human Rights and
Fundamental Freedoms.
Recommendations: To
pass towards a flexible regime of permission and support, not control and
prohibition, on issues related to the religious, educational, cultural,
construction activities of religious communities. This
demands a change of philosophy with regard to them: they should be
considered “innocent till proved guilty” rather than “guilty till proved
innocent”. Current debates on the question of introducing religious education
in public schools should be oriented to non-confessional education in order to
achieve equal standing of religions and limit the field of conflict between
separate religious communities, which is the trend in most European countries.
To all
appearances, after the decision of the Court, the Law cannot serve as an
effective tool for regulating this complex and delicate matter. The public and
the authorities responsible for legislature in this field are considering and
discussing several variants of a new, better, and more modern law.
* * *
4.
4.1.
Freedom of religious convictions and the equality of religious confessions
before the law: general principles
The new democratic
constitution, adopted on July 13, 1991, recognised the equality under law of
all citizens, without “any constraints on the rights and privileges, based on
race, nationality, ethnos, sex, origin, religion, education, personal or social
status, or property status, convictions, political affiliations.” /art. 6,
paragraph 2/. The new Religious
Denominations Act passed by the Parliament on December 20, 2002
/supported strongly by the ruling party NDSV /National Movement Simeon II/, provided a legal framework for
this article of the Constitution. The Law asserts the right of every person to
freedom of conscience and faith, as well as equality under the law, regardless
of religious affiliation and convictions and supports mutual understanding,
tolerance and respect on issues regarding the freedom of conscience and faith.
/ Preamble/. In “General Provisions” of the Law, the legislator establishes
that “The right to religious freedom is fundamental, absolute, subjective, personal,
and inviolable” /art. 2. par.1/.
One of the positive features of the Bulgarian law, compared with those of
Serbia and Macedonia, is that the emphasis is on individual, not only on
collective rights and freedoms of religious beliefs and activities.
*
42.2. The Legal Status
of Religious Communities: the Road to Freedom
Another positive feature, in
conformity with European standards, is the fact that in the Law, acquiring
legal status by a religious community is not indicated as an obligatory
condition for carrying out religious activity. But the religious communities
that have acquired such status, referred to in the law as “religious
institutions”, enjoy a wider range of freedoms: “ to own property”
/art.21/, “to produce and sell goods” /art.22/, “to own and maintain
cemeteries” /art.24/, to take profit from the “distribution of the state
subsidy” /art 28/, “may establish medical, social and educational institutions”
/art. 30/, etc.
Recommendations: To
decrease the obligatory link between legal status of a religious community and
the performance of activities for which legal status is not a necessary
condition: cultural, educational, charity; to permit the possibility of
extending the distribution of state subsidies to unregistered religious communities
as well. In the Law the possibility of religious communities to be registered
according to the law of civic associations should be explicitly
formulated.
*
4.3. Conditions for
acquiring legal status: toward independence with
regard to the judicial authorities
Art. 15(1) states that the
registration of religious communities as legal entities is carried out by the
Municipal Court of Sofia. Chapter 6 of the Law regulates the role of the state
– the Council of Ministers and its administrative division, the Directorate on
Religious Denominations, for carrying out state policy in the field of the
right of religious confession. The required registration
documents include a presentation of “religious beliefs and
religious practice” /art.17/2/. The advantage of the law, showing its alignment
with European standards, is the absence of a requirement for minimal membership
as a condition for registration of the religious community.
Recommendation: It would be in the spirit of European legal standards to indicate the exact term in which the competent organs must answer an application for registration – usually 30 days – and to allow the renewal of a rejected application after the recommendations of the registering organ, presented in writing, are fulfilled. If there is a positive fact, the registration of the religious communities should be the obligation of the court; relieving the Directorate on Religious Denominations of some functions in this process (art. 35) would support the democratic trend toward limiting the intervention of the state: giving expert opinion on registration, examining signals and complaints of citizens as to the violation of their religious rights, etc. In the documents required for registration of the religious community, the element “presenting religious beliefs and religious practice” should be dropped, inasmuch as their assessment is not in the competence of the registering organ.
*
4.4.
Conditions for depriving of legal status: the state is in its place after all!
Art. 7(1) states that “The
freedom of religion shall not be directed against the national security, public
order, public health and morals or the rights and freedoms of persons under the
jurisdiction of the Republic of Bulgaria.”; (2) “Religious communities and
institutions as well as religious beliefs shall not be used for political purposes”;5). Religious
communities and institutions cannot include in their activities juveniles,
except with the explicit agreement of the parents or guardians. Minors can be
included in activities of religious communities and institutions except for the
explicit disagreement of their parents or guardians.
According to art. 8(1) “If
the requirements of Art. 7 are violated the right to religious freedom may be
restricted by: 1/ Terminating the dissemination of a particular publication;
2/Terminating publishing activity; 3/ Restricting public events; 4/Canceling
the registration of an educational, health
or social institution; 5/ Canceling
activity for 6 months; 6/Canceling the legal entity status of a religious denomination”.
Recommendations: The
category “national security” should be dropped from art. 7/1/, as it does not
correspond to the formulation of ECHR 9/2/, ratified on September 1992. The
sanctions envisaged for violation of the requirements of art. 7 impute
collective guilt and concern the public activity of the religious community. In
the Macedonian law, for instance, most of the sanctions are monetary fines.
Although no abuses of these legal rules have been established, the practice of
abolishing a given religious community should be resorted to as en extreme and
exceptional measure, inasmuch as it falls under the definition of imputing
collective guilt. The interpretation of the conditions under which abolishment
is possible depends on the democratic culture of society, hence a clearer and
more precise formulation is needed.
*
4.5.
Privileged status: national and/or political interest
Art. 10 /1/ of the law
states: “Eastern Orthodoxy is the traditional denomination in the Republic of
Bulgaria. It has played a historic role in Bulgaria’s statehood and has current
meaning in its political life. Its spokesperson and representative is the
autocephalous Bulgarian Orthodox Church… (2) The Bulgarian Orthodox Church is a
legal entity… 3/ No Act or secondary legislature shall use Paragraphs 1 and 2
as grounds to grant privileges or any advantages.”
Criticism was based on the
interpretation of this article whereby the law itself assigns legal status to
the Bulgarian Orthodox Church and to one of the two opposed synods, that headed
by Patriarch Maxim, rather than the other. In this way the intervention of the
state in the internal division of the Bulgarian Orthodox Church was criticized.
Although privileged status is attached to certain so-called state and national
Churches in other European countries as well, there is a trend towards
reduction of the relative weight of state Churches and towards granting greater
rights to other confessions.
The fact that the Bulgarian
Orthodox Church is given legal status ex lege, unlike other religious
communities, which must register over again (even though by a court
confirmation of their already obtained legal status) is in contradiction with art.
4 /1/ “Religious denominations shall be free and equal…”, and art. 4/2/” State
interference in the internal organization of self-governed religious institutions shall not be
permitted.” Moreover, by granting legal status ex lege, the
legislator gives their due to art. 10/1/ of the law and to the Art
13/2 of the Bulgarian Constitution, in
which it is stated that Orthodoxy is a traditional religion for the Republic of
Bulgaria.
Due to this, the European
Commission recommenced temporarily monitoring the religious rights in Bulgaria.
The matter was referred by a group of parliamentary deputies to the
Constitution Court; the latter examined at two of its sessions whether the Law
on Confessions was constitutional or not; at its session of July 15, 2003 the
members of the Court voted not to support the demand of a group of
parliamentary deputies and thereby confirmed the Law as constitutional.
A proof of the dependence of
the legal sphere on the social context was the fact that the law proved
powerless to put an end to the division in the Bulgarian Orthodox Church, which
has been provoked and sustained by the political division of society and by the
weakness of the Church as an institution. The controversial events of the last
week of July, 2004 – the conflict between the “legal” /as defined according to
the Law/ and the “illegal” synods over the property issue and the way the
matter was “resolved”, i.e. by police force, have confirmed this
observation.
As a result of these events,
the Parliamentary Assembly of Europe voted a resolution recommending: 1/the
standardizing of the way of obtaining legal status for all religious
communities; 2/ non-intervention of the state in the internal affairs of
religious communities.
Recommendation: The
constitutional idea of the quality of citizens with respect to their religious
convictions should be confirmed and all religious communities must be placed
under identical conditions for acquiring legal status. The leadership of the
Bulgarian Orthodox Church should be chosen on the basis of its internal laws
and regulations.
*
4.6.
Forthcoming developments of the law
It is probable that under
the coming new government and the new parliament elected in the forthcoming
elections, the Religious Denominations Act will be changed. Proposals for
amendments and additions have already been put forward in the present
parliament. What direction these amendments will take will depend on the
balance of the political forces in parliament and on the positive signs for the
future of the European Union. For the time being European legal standards,
tools and practices, serve as the basic framework of values and motivating
force for legislation in this sphere.
* * *
This is where the
deeper meaning and philosophy of our analysis of national legal texts lies:
they are not only components of a universal, global, and standardized legal
universe, but are embedded in a specific social context and the people
involved, the balance between people generate the texts. Moreover, even if the
texts of the laws were to be literally adopted and copied from the developed
democratic countries, still the question of the application of these texts
would remain with so much the greater weight, the question of their acceptance
as an organic part of the respective culture, rather than as abstract and
socially powerless elements of the legal universe. Hence the democratization of
legal texts should be a harmonious part of the democratization of society in
its politics, economy, mentality and in the behaviour of its citizens. And this
is a much slower and more difficult process.
In addition the
pressure of European legal standards, tools, and practices as a fundamental
framework of values and motivation is an element of this necessary and
difficult evolution. The success and future of the frail buds of democracy in
the delicate sphere of religion, will depend on the future of the European
Union.
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