European Court of Human Rights

SECOND SECTION

Application no. 70945/11
MAGYAR KERESZTÉNY MENNONITA EGYHÁZ
and Jeremias IZSAK-BACS against Hungary
and 8 other applications
(see list appended)

STATEMENT OF FACTS

THE FACTS

The applicants are religious communities and individuals. For details, see below.

A.  The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

 

Application no. 70945/11 Magyar Keresztény Mennonita Egyház is a religious community active in Hungary since 1998. Mr J. Izsák-Bács is a Hungarian national who was born in 1959 and lives in Budapest. He is a minister of the first applicant.

The applicants are represented by Mr D. Karsai, a lawyer practising in Budapest.

 

Application no. 23611/12 Evangéliumi Szolnoki Gyülekezet Egyház is a religious community active in Hungary since 1998. Mr P.J. Soós is a Hungarian national who was born in 1954 and lives in Budapest. He is a minister of the first applicant.

The applicants are represented by Mr D. Karsai, a lawyer practising in Budapest.

 

Application no. 26998/12 Budapesti Autonóm Gyülekezet is a religious community active in Hungary since 1998. Mr T. Görbicz is a Hungarian national who was born in 1963 and lives in Budapest. He is a minister of the first applicant.

The applicants are represented by Mr D. Karsai, a lawyer practising in Budapest.

 

Application no. 41150/12 Szim Salom Egyház is a religious community active in Hungary since 2004. Mr G.G. Guba is a Hungarian national who was born in 1975 and lives in Budapest. He is a member of the first applicant.

The applicants are represented by Mr D. Karsai, a lawyer practising in Budapest.

 

Application no. 41155/12 Magyar Reform Zsidó Hitközségek Szövetsége Egyház is a religious community active in Hungary since 2007. Mrs L.M. Bruck is a Hungarian national in 1931 and lives in Budapest. She is a member of the first applicant.

The applicants are represented by Mr D. Karsai, a lawyer practising in Budapest.

 

Application no. 41463/12 European Union for Progressive Judaism is a religious association with its seat in London. It acts as an umbrella organisation for progressive Judaist congregations in Europe. Szim Salom Egyház (see application no. 41150/12) and Magyar Reform Zsidó Hitközségek Szövetsége Egyház (see application no. 41155/12) belong to its members.

The applicant is represented by Mr D. Karsai, a lawyer practising in Budapest.

 

Application no. 54977/12 Magyarországi Evangéliumi Testvérközösség is a religious community active in Hungary since 1981.

The applicant is represented by Mr Cs. Tordai, a lawyer practising in Budapest.

 

Application no. 56581/12 Magyarországi Biblia Szól Egyház is a religious community active in Hungary for over 20 years.

The applicant is represented by its minister and chairman, Mr K. Cs. Majoros.

 

Application no. 41553/12 ANKH Az Örök Élet Egyháza and 8 Others

The applicants in this case (ANKH Az Örök Élet Egyháza, Árpád Rendjének Jogalapja Tradícionális Egyház, Dharmaling Magyarország Buddhista Egyház, Fény Gyermekei Magyar Esszénus Egyház, Mantra Magyarországi Buddhista Egyháza, Szangye Menlai Gedün A Gyógyító Buddha Közössége Egyház, Univerzum Egyháza, Usui Szellemi Iskola Közösség Egyház, Út és Erény Közössége Egyház) are religious communities active in Hungary respectively since 1999, 2008, 2005, 2001, 2007, 1992, 1998, 2008 and 2007.

The applicants are represented by Mr L. Baltay, a lawyer practising in Gyál.

A.  Particular circumstances of the present cases

On 30 December 2011 Parliament enacted Act no. Act CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities. It entered into force on 1 January 2012.

Apart from the recognised churches listed in the Appendix of the Act, all other religious communities, previously registered as churches, lost their status as churches and could continue their activities as associations. If intending to continue as churches, religious communities are required to apply to Parliament for individual recognition as such.

The applicants did not obtain re-registration and consequently lost their status as churches, together with the State subsidies that had been due to them as such.

B.  Relevant domestic law

Act no. CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities provides as relevant:

Section 7

“(1)  A church, denomination or religious community (hereinafter referred to as ‘church’) shall be an autonomous organisation recognised by Parliament, consisting of natural persons sharing the same principles of faith; it shall be self-governed; it shall be established and shall operate primarily for the purpose of practising religious activities.

...

(4)  Churches recognised by Parliament are listed in the Annex to this Act.”

Section 8

“The State may enter into agreements with churches which have considerable social support, preserve historical and cultural values and maintain pedagogical, educational, higher educational, health care, charity, social, family-child-youth protection, cultural or sport institutions (hereinafter referred to as ‘public interest activities’) in order to ensure their operation.”

Section 9

“...

(2)  The State may take into account the actual social role of churches and the public interest activities performed by them in the course of enacting additional rules of law related to the social role of churches, and while maintaining relations with them.”

Section 14

“(1)  The representative of an association which primarily performs religious activities (hereinafter referred to as ‘association’) is authorised to initiate the recognition of represented association as a church by submitting a document signed by a minimum of 1,000 individuals applying the rules governing popular initiatives.

(2)  An association shall be recognised as a church if

a)  the association primarily performs religious activities;

b)  it has a confession of faith and rites containing the essence of its teachings;

c)  it has been operating internationally for at least 100 years or in an organised manner as an association in Hungary for at least 20 years, which extends to include operating as a church registered pursuant to Act no. IV of 1990 on Freedom of Conscience and Religion and on Churches prior to the entry into force of this Act;

d)  it has adopted its statute, instrument of incorporation and internal ecclesiastical rules;

e)  it has elected or appointed its administrative and representative bodies;

f)  its representatives declare that the activities of the organisation established by them are not contrary to the Fundamental Law, do not conflict with any rule of law and do not violate the rights and freedoms of others;

g)  the association has not been considered a threat to national security during its course of operation;

h)  its teaching and activities do not violate the right to physical and psychological well-being, the protection of life and human dignity.

(3)  Based on the popular initiative, the parliamentary committee dealing with religious affairs (hereinafter referred to as ‘committee’) submits a bill regarding the recognition of the association as a church to Parliament. If the conditions defined in Subsection (2) are not fulfilled, the committee shall indicate this in connection with the bill.

(4)  At the request of the committee, the association shall certify the fulfilment of the conditions defined in Points a)-f) of Subsection (2). The committee shall request the position of the President of the Hungarian Academy of Sciences regarding the fulfilment of the conditions defined in Points a)-c) of Subsection (2).

(5)  If Parliament does not support the recognition of an association as a church in accordance with the bill set out in Subsection (3), the decision made in this regard shall be published in the form of a parliamentary resolution. A popular initiative aimed at recognising the association as a church cannot be initiated within a period of one year following the publication of this resolution.”

Section 15

“The association shall qualify as a church as of the day of the entry into force of the amendment of this Act concerning the registration of the given association.”

Section 19

“...

(3)  In order to realise their goals, churches shall be authorised to engage in activities, which do not qualify as business or entrepreneurial activities; and shall also be authorised to engage in business or entrepreneurial activities besides their basic activities. Furthermore, they shall be authorised to establish businesses and NGOs, as well as to participate therein.

(4)  The public interest activities and the institutions of churches shall be entitled to budgetary funds to the same extent as state and local government institutions performing similar activities. In these church institutions the content of employment shall conform to public employment in respect of wage, working time and rest periods.

(5)  The central wage policy measures relating to employees of state and local government institutions shall cover the employees of church institutions referred to in Subsection (4), with the same conditions.

(6)  On the basis of rules of law churches may receive funding from the subsystems of general government, from programmes financed from EU funds or on the basis of international agreements, by way of application or outside the system of applications, on the basis of a specific decision.

...”

Section 20

“...

(4)  Excluding those listed in Subsection (2) of Section 6, the following shall not qualify as business or entrepreneurial activities in respect of churches:

a)  operation of religious, pedagogical, educational, higher educational, health care, charity, social, family-child-youth protection, cultural and sport institutions, as well as ... activities to protect the environment;

b)  use of holiday homes by providing services to church personnel;

c)  production or sale of publications or objects of piety which are necessary for religious life;

d)  partial exploitation of real estate used for church purposes;

e)  maintenance of cemeteries;

f)  sale of immaterial goods, objects or stocks serving exclusively religious, pedagogical, educational, higher educational, health care, charity, social, family-child-youth protection, cultural, sport or environmental protection activities, including the reimbursement of the cost of work clothes;

g)  provision of services complementary to religious, pedagogical, educational, higher educational, health care, charity, social, family-child-youth protection, cultural, sport or environmental protection activities, or the non-profit oriented use of appliances serving these activities;

h)  production or sale of products, notes, textbooks, publications or studies undertaken in the course of performing public duties taken over from the State or the local government;

i)  operation of pension institutions or pension funds set up for the purpose of self-support of church personnel.

(5)  Revenues generated from activities listed in Subsection (4), with special regard to the following:

a)  consideration, fees, reimbursement paid for services;

b)  compensation, damages, penalties, fines and tax refunds connected to the activity;

c)  financially settled non-repayable funding, grants received in connection with the activity; and

d)  the portion of interest, dividend and yield paid by financial institutions and issuers on deposits and securities, made or acquired by means of unengaged funds, in proportion to the revenues generated by activities which do not qualify as business or entrepreneurial activities.

(6)  Churches may be granted tax benefits and other similar benefits.”

Section 23

“Churches, in particular church rites and the undisturbed performance of church government, as well as church buildings, cemeteries and other holy places shall enjoy enhanced protection by the law of minor offences and by criminal law.”

Section 24

“(1)  In instructive or educational institutions financed by the State or local government, churches may provide religious and moral studies education according to the needs of students and their parents; in institutions of higher education churches may carry out faith-based activities. ... The costs of religious and moral studies education shall be borne by the State, on the basis of a separate Act or of agreements concluded with the churches.

(2)  Churches may perform pastoral services in the army, in prisons and hospitals, or other special ministries as laid down in rules of law.”

Section 33

“(1)  The Minister shall, within 30 days of the entry into force of this Act, register the churches listed in the Annex to this Act, and the internal ecclesiastical legal persons pursuant to Section 11 determined by them.

(2)  Churches listed in the Annex and their internal ecclesiastical legal persons may operate as churches and as internal ecclesiastical legal persons regardless of the date of their registration under Subsection (1).

...”

Section 34

“...

(2)  Until the expiry of Act C of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities, with the exception of rules governing popular initiative, Parliament shall, in view of provisions governing the recognition of churches set out under Act C of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities, make decisions in respect of the recognition of churches submitting applications for recognition to the Minister in accordance with this Act within the framework of the procedure set out under Subsections (4) and (5) of Section 14 by 29 February 2012.

(3)  The Minister shall publish a bulletin listing churches specified above in Subsection (2) on the Ministry’s official website.

(4)  If Parliament refuses to recognise a church in accordance with Subsection (2), for the purposes of this Act and other relevant legislation that church shall qualify as an organisation pursuant to Subsection (1) as of 1 March 2012, and Sections 35-37 shall apply to it, with the proviso that :

a)  recognition as a church may proceed on the grounds of a popular initiative launched one year after the publication of the parliamentary resolution referred to in Subsection (5) of Section 14;

b)  procedural action defined in Subsection (1) of Section 35 may be launched up to 30 April 2012 and conditions set out in Subsection (2) of Section 37 may be fulfilled up to 31 August 2012;

c)  the date of 30 April shall be taken into account during the course of the application of Point b), Subsection (3) of Section 35;

d) the date of legal succession in accordance with Subsection (1) of Section 36 shall be 1 March 2012;

e)  budgetary funding for ecclesiastical purpose may be granted to churches specified in Subsection (2) up to 29 February 2012.

(5)  The organisation

a)  may initiate its registration as an association in accordance with Section 35, and

b)  whereby it meets requirements provided for in this Act, it may initiate the recognition of the association as a church in accordance with the provisions set out in Chapter III.”

Section 35

“(1)  The organisation shall declare its intention to continue or discontinue its activities by 29 February 2012, and in the case of its intention to continue activities, it shall, in accordance with the rules concerning associations, initiate a change registration procedure in connection with which Subsection (1) of Section 37, Section 38 and Points a) and c) of Section 63 of Act CLXXXI of 2011 on the Court Registration of Civil Society Organisations and Related Rules of Proceeding shall apply, with the proviso that the meeting resolving on transformation shall be considered as the constituent assembly.

(2)  Requirements for the organisation to be registered as an association must be fulfilled by 30 June 2012 at the latest with the proviso that if the organisation undertakes religious activities from 1 January 2012 within the same organisational framework defined in its internal ecclesiastical rules in effect on 31 December 2011, in the course of the court registration of the association and in connection with the requirements set out in Point b) of Subsection (4) of Section 62 of Act IV of 1959 on the Civil Code, the court shall refrain from assessing whether the instrument of incorporation of the organisation complies with the legal provisions relating to the establishment and competence of the supreme body, administrative body and representative body. The failure to meet this deadline results in forfeiture of the right to register.

...”

Section 37

“(1)  With the exception of cases defined in Subsection (3), after the entry into force of this Act only churches listed in the Annex may be granted budgetary subsidy for ecclesiastical purposes.

(2)  For the purposes of the Act on the Use of a Specified Amount of Personal Income Tax in Accordance with the Taxpayer’s Instructions, the organisation shall be considered an association and shall be entitled to the one per cent that can be offered to associations, provided that it complies with the conditions required by laws concerning associations by 30 June 2012.

(3)  Based on an agreement, the State shall provide budgetary subsidy to the operation of the following institutions operated by the organisation on 31 December 2011:

a)  up to 31 August 2012 in respect of public education institutions;

b)  up to 31 December 2012 in respect of social institutions.”

Section 38

“(1)  While respecting the agreements concluded with churches engaged in public interest activities, the Government shall review these agreements and if appropriate, it shall initiate the conclusion of new agreements.

(2)  Up to 31 December 2012, the Government may conclude agreements relating to the provision of budgetary funding, with organisations performing public duties which do not qualify as churches under this Act.”

Section 50

“...

(3)  The following Section 13 shall be added to the Church Funding Act:

“Section 13: An organisation under Subsection (1) of Section 34 of the Church Funding Act shall be entitled, in 2012, to receive complementary funding specified under Subsection (3) of Section 4, provided it has been recognised as a church by Parliament up to 20 May 2012.”

Section 52

“Section 34 shall be replaced by the following provision:

Section 34 (1): With the exception of churches listed in the Annex and their independent organisations established for religious purposes, organisations registered in accordance with Act IV of 1990 on the Freedom of Conscience and Religion and on Churches and its organisation established for religious purposes (hereinafter jointly referred to as organisation) shall qualify as an association as of 1 January 2012.

...”

COMPLAINTS

The applicants complain under Article 11 - read in the light of Article 9 and, moreover, read alone and in conjunction with Article 14 - that the discretionary re-registration of churches amounts to a violation of their right to freedom of religion and is discriminatory. Under Articles 6 and 13, they complain that the relevant procedure is unfair and does not offer any effective remedy.

Furthermore, in applications nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12 and 41463/12, the applicants complain under Article 1 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention, about the loss of State subsidies due to the loss of church status.

QUESTIONS TO THE PARTIES

 




  Has there been a violation of the applicants’ freedom of religion, contrary to Article 11 read in the light of Article 9 of the Convention, read alone and in conjunction with Article 14 (see Moscow Branch of the Salvation Army v. Russia, no. 72881/01, §§ 96-97, ECHR 2006-XI)?

 




  Did the applicants have at their disposal an effective domestic remedy for their complaints concerning Articles 9 and 11, as required by Article 13 of the Convention?

 




  In applications nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12 and 41463/12 only: Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention?

 




  In application no. 41463/12 only: Does the applicant have “victim status” in regard to the alleged violations of the Convention?




APPENDIX

 




  Application no. 70945/11

MAGYAR KERESZTÉNY MENNONITA EGYHÁZ and Jeremiás IZSÁK-BÁCS against Hungary

lodged on 16 November 2011

 




  Application no 23611/12

EVANGÉLIUMI SZOLNOKI GYÜLEKEZET EGYHÁZ and Péter János SOÓS against Hungary

lodged on 3 April 2012

 




  Application no 26998/12

BUDAPESTI AUTONÓM GYÜLEKEZET and Tamás GÖRBICZ against Hungary

lodged on 24 April 2012

 




  Application no 41150/12

SZIM SALOM EGYHÁZ and Gergely Gusztáv GUBA against Hungary

lodged on 25 June 2012

 




  Application no 41155/12

MAGYAR REFORM ZSIDÓ HITKÖZSÉGEK SZÖVETSÉGE EGYHÁZ and László Mátyásné BRUCK against Hungary

lodged on 25 June 2012

 




  Application no 41463/12

EUROPEAN UNION FOR PROGRESSIVE JUDAISM against Hungary

lodged on 25 June 2012

 




  Application no 54977/12

MAGYARORSZÁGI EVANGÉLIUMI TESTVÉRKÖZÖSSÉG against Hungary

lodged on 19 August 2012

 




 Application no 56581/12

MAGYARORSZÁGI BIBLIA SZÓL EGYHÁZ against Hungary

lodged on 29 August 2012

 




 Application no. 41553/12

ANKH AZ ÖRÖK ÉLET EGYHÁZA and 8 OTHERS against Hungary

lodged on 28 June 2012