Balázs Schanda, Hungary

• Citation: Vol. 19 No. 2
• Publication year: 2005
• topic: Constitutional Law,Criminal Law

THE PERMISSIBLE SCOPE OF LEGAL LIMITATIONS ON THE FREEDOM OF RELIGION OR BELIEF IN HUNGARY

Balázs Schanda^*

A. The Rule Structure Defining the Permissible Limitations on Freedom of

Religion or Belief in Hungary

The Hungarian Constitution applies the "Wesensgehaltsgaratie," that is, the essential content of fundamental rights cannot be limited. Concerning the "non-essential" part of fundamental rights, the test of necessity and proportionality applies: rights can be limited by acts of Parliament, but the limitation must be justified by the protection of another fundamental right or constitutional value, and the harm caused by the limitation shall not be disproportionate with the goal to be achieved.

B. Sources of Law Establishing and Limiting Manifestation of Religion or

Belief

1. International Law

(a) The Role of International Law According to the Constitution

According to Article 7 of the Hungarian Constitution ("Constitution"), "[t]he legal system of the Republic of Hungary accepts the generally recognized rules of international law, and shall further ensure the harmony between domestic law and the obligations assumed under international law.¹

The Constitution mandates harmony between domestic and international law. Customary international law and non-ratified treaties shall be respected according to the Constitution.

(b) The Role of European Law

European law has no direct applicability unless a country is a member of the European Communities. According to the Declaration on the Status of Churches and Non-confessional Organizations, "[t]he European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States."²The body of European law affecting churches is, however, growing, and churches have to live with a set of secondary norms. To give a concrete example, non-discrimination in labor law is a field that raises many concerns. The Council Directive of 2000 ("2000 Directive"), establishing a general framework for equal treatment in employment and occupation, only foresees that:

Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief is a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos.³

The wording of the Directive suggests that countries having no special exceptions for religion-based employees may no longer introduce them.

(c) Whether Municipal Courts Apply International Human Rights Law

Typically, Hungarian courts do not refer to international human rights law. However, Hungarian courts do occasionally reference case law from the European Court of Human Rights ("ECHR"). For example, in a leading Hungarian case, the court made reference to the ECHR case Hoffman v. Austria. The Hungarian court followed the lead of the ECHR and held that the religious conviction of the parents cannot be taken into consideration when deciding on the parental rights after a divorce.⁴

(d) Whether Legislatures Amend Laws to Conform to International

Standards

Prior to the ratification of the European Convention on Human Rights, the Hungarian legal system was scrutinized and amended in order to avoid-as far as possible-violating the Convention. After ratification, any member of Parliament, the President of the Republic, the government or a member of it, the Head of the State Audit Office, the Chief Justice, and the Chief Public Prosecutor have the right to file a petition with the Constitutional Court to scrutinize the compliance of any domestic norm with the Convention. The Court also can undertake this procedure ex offitio. If the domestic norm has a lower or equal rank to the promulgating norm, the domestic norm is declared void. If a Hungarian norm of higher rank would not comply with a treaty promulgated by a norm of lower rank, the Constitutional Court sets a deadline to the lawmaking and treaty-making organ to rule out the incompliance. This would be the case if an international treaty promulgated by an act of Parliament violates the Constitution. In such a theoretical case, the Parliament would amend the Constitution or abstain from ratifying the treaty. The most important human rights treaties, one example being the European Convention on Human Rights, were promulgated by acts of Parliament. In the hierarchy of legal norms, human rights treaties can be placed below the Constitution and above "ordinary" (merely domestic) acts of Parliament, as the Constitutional Court can abolish all domestic norms except the Constitution itself.

(e) To What Extent International Norms are Directly Applicable (Self- Executing)

As described above, international law has priority over domestic law. This, however, does not change the dualistic approach to international law. International law requires transformation; thus, it is not directly applicable.

2. Constitutional Law

According to Article 60 of the Constitution,

(1) In the Republic of Hungary everyone has the right to freedom of thought, conscience and religion.

(2) This right includes the free choice or acceptance of religion or any other conviction according to one's conscience, and the liberty to express, or refuse to express, to exercise or teach one's religion and conviction through the performance of religious acts and rites, either individually or together with others, either publicly or in a closed circle.

(3) In the Republic of Hungary the Church functions in separation from the State.

(4) A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on the freedom of conscience and religion.⁵

The Constitution can be amended relatively easily by a qualified majority of two thirds of all members of Parliament.

3. Codes and Statutes

(a) Principal Statutes: The Law on Freedom of Religion

The Act on Freedom of Conscience and Religion and the Churches⁶("Act on Churches") was passed a few months before the first democratic elections. The Act on Churches was a major step to realize religious freedom, providing both for individual and collective freedom and for a strict but benevolent separation. On the one hand, the Act gives some detail on the content of freedom of religion (in areas as data protection, religious upbringing of children, free exercise of religion in public institutions, etc.). On the other hand, it establishes a system of registration for religious communities. These requirements are highly formal: "[a] church must be founded by at least one hundred private individuals . . . [have an approved] charter contain[ing] at least the name, seat and organisational structure of the church, if an organisational unit of the church is a legal entity, the name thereof," and have elected organs of administration and representation.⁷Additionally, the founders must submit a declaration stating that the organization has a religious character and its activities comply with the Constitution and the law.⁸All registered churches have the same rights and the same obligations. Equality, however, is a matter of legal status, not of social significance. As the Constitutional Court stated,

"[a]lso, treating the churches equally does not exclude taking the actual social roles of the individual churches into account."⁹The present system of registration of religious communities has been the target of criticism since the

Act on Churches was passed in 1990, as it opened up the possibility for non- religious groups to register as churches to attain benefits that the legal system provides. The practice of religion neither in private nor in public, alone nor collectively, is bound to any kind of legal status or structure.¹⁰

(b) Other Statutes Affecting Legal Limitations (Including Criminal

Statutes)

The Act on Settlement of Ownership in Respect of the Former Real Estate of the Churches of 1991¹¹was a major step in enabling churches to regain a social role, especially serving the public, and providing space for religious life. A number of norms affected church activities. In 1997, Parliament passed the

Act on the Financial Conditions of Religious and Public Activities of

Churches.¹²

The Criminal Code has a provision entitled the "Violation of the Freedom of Conscience and Religion."¹³According to that provision,

Whoever a) restricts another person by violence or by threats in his freedom of conscience, b) prevents another person from freely exercising his religion by violence or by threats, commits a crime, and is punishable by imprisonment extending to three years.¹⁴

This law applies to persons who abuse someone because of their belonging or assumed belonging to a national, ethnic, race or religious group. Unfortunately, it is difficult to prove that a person was attacked because of his belonging to a religious group.¹⁵Violation of the Code provision entitled the

"Violation of the Right of Worship" amounts to a misdemeanour. According to that provision:

A fine not exceeding HUF one hundred thousand may be imposed on whoever causes a public scandal on premises designated for the purposes of the ceremonies of a registered church or desecrates the object of religious worship or an object used for conducting the ceremonies on or outside the premises designated for the purposes of ceremonies.¹⁶

4. Other Sources of Law: Case Law, Administrative Regulations, Etc.

The case law delivered by the Constitutional Court is determinative in respect to fundamental rights as well as other legal issues. Leading cases from ordinary courts are constantly published in...