Hungary, constitutional change, registration of religious groups and Article 9 ECHR

The registration of religious groups in Hungary has a fairly long and extremely tortuous history which (if I understand the documentation correctly, not being able to read Magyar) goes like this.

In July 2011 the Hungarian Parliament passed Act C of 2011, On the Right to Freedom of Conscience and Religion and on the Legal Status of Churches, Religious Denominations and Religious Communities. The law recognised fourteen “traditional” religious groups and communities specifically but provided that all the others would have to re-register and would only be allowed to do so if they had been in existence in Hungary for twenty years or more. The new law came in for withering criticism from opponents, who estimated that it would affect about 300 minority faiths. One of the severest critics was the European Humanist Federation, which pointed out that though it had no direct interest in state control of religions

“… the new law in Hungary represents a serious breach of freedom of religion and belief as set out in Article 9 of the European Convention on Human Rights”.

The Government’s response was that the law was intended to prevent groups that did not carry out religious activities from taking advantage of tax benefits – in short, to deal with fraudulent organisations operating behind the protection of religion – and that deregistered religious organisations would still be able to operate as “civil associations performing religious activities”.

The law was scheduled to enter into force on 1 January 2012 but in December 2011 was struck down by the Constitutional Court on procedural grounds. Parliament then passed further  Act CCVI of 2011, On the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities, under which the fourteen so-called “traditional faiths” would be recognised. Section 15 provides an extremely tortuous procedure for the recognition by Parliament of an association as a Church: those not listed in the Act would be permitted to apply to Parliament for recognition if they had been operating in Hungary for at least 20 years. One effect of the new law would be that every Muslim, Buddhist and Hindu congregation, together with such denominations as the Methodists and the Salvation Army, would have to apply for recognition; and an amending Act was tabled for approval on 29 February 2012 to remedy that situation. The Act came into force on 1 March 2012; but in February 2013 the Constitutional Court struck it down as unconstitutional, on the grounds that it did not include any mechanism for appealing parliamentary decisions on recognition.

Deutsche Welle now reports that the ruling Fidesz Party, which has a two-thirds majority in Parliament, has retaliated by approving a  Fourth Amendment to the Constitution that will limit the authority of the Constitutional Court by removing its power to strike down a constitutional law that has been passed with a two-thirds parliamentary majority: moreover, in future the Court will only be able to review amendments on procedural grounds rather than on grounds of substance.

The President of the European Commission and the Secretary General of the Council of Europe issued an immediate Press Release as follows:

“Unfortunately, experts from the Council of Europe and from the European Commission did not have the opportunity to discuss and clarify in detail the content of these amendments before their adoption. These amendments raise concerns with respect to the principle of the rule of law, EU law and Council of Europe standards. The Council of Europe (Venice Commission) and the European Commission will now make a detailed assessment of these amendments, as adopted today”.

It should be said that the Venice Commission (more formally, the European Commission for Democracy through Law) tends to take a very stern view indeed of anything that smacks of a watering-down of Convention rights and it will be interesting to see its response.

Should the issue ever reach the European Court of Human Rights itself, the suspicion is that the ECtHR will only be prepared to concede a very narrow margin of appreciation on the matter of registration. It has already criticised the length of the registration process in Austria: see Religionsgemeinschaft Der Zeugen Jehovas & Ors v Austria [2008] ECHR 762 (No. 40825/98) and Verein Der Freunde Der Christengemeinschaft & Ors v Austria [2009] ECHR 353. In both cases it was held that the requirement of a ten-year waiting period in order to register as a religious community was unreasonable and in breach of Article 14 ECHR (discrimination) taken in conjunction with Article 9. More recently, the Court has again commented unfavourably on Austrian registration requirements in Jehovas Zeugen in Ősterreich v Austria [2012] ECHR 1752.

(By way of a footnote, the joint reaction of José Manuel Barroso and Thorbjørn Jagland demonstrates how close the relationship now is between the EU and the Council of Europe on human rights issues. Which gives support to the reported remark by Lady Hale JSC at a lecture at the LSE last night that even if the EU were to allow the UK to remain in membership should it leave the ECHR we would still have to abide by the terms of the EU Charter of Fundamental Rights. So on her analysis there is no point in leaving the ECHR.)