This opinion of the Venice Commission, also released on March 19, 2012, is shorter than the one on the judiciary, but it is equally hard hitting. It even questions the necessity of enacting an entirely new law on the freedom of religion and beliefs with new demanding registration criteria only to eliminate abuse of religious organizations. However politely, at the very beginning of the 15-page document the Commission suggests to the Hungarian government that “more tailored actions and regulations … could still be considered.” I don’t think that the Hungarian authorities will take this gentle probing to heart, but the opposition parties heard the Venice Commission’s advice loud and clear. They are demanding the withdrawal of this whole ill-conceived piece of legislation.
Fidesz and Christian Democratic politicians involved in the parliamentary committee’s decisions about the legal status of churches claim that the law has nothing to do with freedom of religion which is guaranteed in the new constitution. However, in the opinion of the Venice Commission “the right to freedom of religion and conscience covers more elements than merely granting privileges, state subsidies and tax benefits to recognized churches. Freedom of thought, conscience and religion is one of the foundations of a democratic society. It is so important that it cannot be derogated at all and cannot be restricted on national security grounds.”
Yet this law does restrict religious freedom by mentioning “possible threats of a religious group to the Fundamental Law, any rule of law or the rights and freedoms of others, national security or the right to physical and psychological well being of people, protection of life and human dignity.” The authors of the Opinion consider this to be far too vague. Moreover, it leaves too much discretion to the authorities. Above all, national security is not a legitimate restriction that can justify limiting the freedom of religion or belief.
Another passage of the law states that “a church, denomination or religious community shall be an autonomous organization recognized by the National Assembly consisting of natural persons sharing the same principles of faith; shall possess self-government and shall operate primarily for the purpose of practicing religious activities.” According to the Commission, the wording of this article seems to imply that a church shall not be entitled to be established or to conduct religious activities in Hungary without recognition by the National Assembly. In their view, this constitutes a restriction of the freedom of religion. In addition, registration of religious organizations should not be mandatory and individuals and groups should be free to practice their religion without registration.
According to the European Court of Human Rights, in order to allow a religious group to obtain legal personality, the state must be careful to maintain a position of strict neutrality and be able to demonstrate that it has proper grounds for refusing recognition. However, the Venice Commission found a total absence of procedural guarantees for a neutral and impartial application of recognition of churches. Up to date, 32 churches were recognized as legal entities but it is entirely unclear how and using what criteria and materials the parliamentary committee and members of parliament were able to discuss this list of recognized churches, to settle the delicate questions involved in the definition of religious activites and churches.
The original plan apparently was to ask the Hungarian Academy of Sciences to form a committee that would review the eligibility of religious communities for church status. The president of the Academy very wisely refused. Thus, the great Fidesz-KDNP minds in the Hungarian parliament are alone responsible. The Venice Commission came to the conclusion that decisions have been “more or less based on political considerations.” Motives for decisions are not public. However, according to an MSZP member of the committee, Ildikó Lendvai, the chairman freely admitted that recognition of a religious community as a church is not a right but a sign of benevolence (kegy). And no benevolence was shown to Gábor Iványi, leader of one of the Methodist churches in Hungary. Explanation: he is too political. Translation: he opposes the Fidesz government. Despite the fact that Queen Elizabeth seemed to have recognized Iványi’s church and appreciated the extensive work he and his church did for the homeless and the downtrodden.
Queen Elizabeth, Miklós Haraszti and Pastor Gábor Iványi at the Methodist Homeless Shelter (1993)
The Commission also complained about the lack of remedies. Since decisions on registration are taken by resolution of parliament, they cannot be reviewed by ordinary courts. The members of the Commission were assured by the Hungarian authorities that the constitution provides for remedy by being able to turn to the Constitutional Court. I assume they didn’t mention the difficulties the new constitution puts in the way of such a remedy. Individuals cannot appeal to the court. Only a certain number of members of parliament or the ombudsman.
Retroactive legislation raised its ugly head again in Fidesz legislative proceedings. Churches that had been recognized as such before the Act became law can be de-registered. The Commission suggests redrafting the Act in order to avoid a de-registration process unless specific reasons exist to justify it.
Finally there is the troubling problem of equality. Because there is a distinction between recognized and unrecognized churches, the Venice Commission “considers not only the unequal treatment of 32 churches on the one hand and the other religions on the other hand worrying, but also the conditions these other religions have to comply with in order to acquire the status of Churches.” In the Commission’s opinion the Hungarian authorities must provide “an objective and reasonable justification to explain why each of the rights and benefits is only granted to the churches recognized by the National Assembly and why these rights and benefits are not granted to other churches.”
No wonder that MSZP came to the conclusion that this law must go back to the drawing board. What I find difficult to understand is how it is possible that Hungarian legal authorities seem to be totally ignorant of international and European Union laws. The Commission’s opinion often refers to the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Did the framers of this law ever read either document? This government’s activities on all levels, notably diplomatic, economic, and legal matters, are below par. It is really embarrassing.