Hungary’s registration of religious groups breaches Arts. 9 & 11 ECHR

In a case concerning Hungary’s new Church Act the Second Section ECtHR found by five votes to two (Spano and Raimondi JJ dissenting) that some of its effects had violated Article 11 (assembly and association) read in the light of Article 9 (thought, conscience and religion).

The facts

In Magyar Keresztény Mennonita Egyház and Ors v Hungary [2014] ECHR 552 the applicants were a range of religious groups and individual members of those groups that had previously operated as communities registered by the competent court in conformity with Act no. IV of 1990 (“the Church Act 1990”): the Mennonites, various Congregationalist and Evangelical Christian groups, the Alliance of Hungarian Reformed Jewish Communities, the European Union for Progressive Judaism, the Buddhists and some others.

In December 2011 Parliament enacted Act no. CCVI of 2011 (“the Church Act 2011”) on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities. It came into force on 1 January 2012 and was subsequently amended, most recently in August and September 2013 [para 16]. As a result, apart from the recognised churches listed in the Schedule to the 2011 Act, all other religious communities previously registered as churches lost their status as churches and lost their state funding; but they could continue their activities as associations. If intending to continue as churches, religious communities were required to apply to Parliament for individual recognition [para 17].

The applicants complained that their deregistration under the 2011 Act and the discretionary re-registration violated Article 11 (assembly and association) read in light of Article 9 (thought, conscience and religion) ECHR. They also argued that the deregistrations had breached Article 14 (discrimination) read in conjunction with Articles 9 and 11 and that the loss of state subsidies contravened Article 1 of Protocol No. 1 (property).

The judgment

The Court found that the Government had not demonstrated that there were no other less drastic solutions to the problems of abuse of state subsidies by certain religious groups than to deregister the applicant communities [para 96]. The deregistration had therefore violated their rights under Articles 9 and 11.

It was undisputed that the interference had been “prescribed by law”: the Church Act 2011 [para 85]. The measure could also be considered to have the legitimate aim of preventing disorder and crime for the purpose of Article 11 by attempting to combat fraud by certain religious groups [para 86]. As to whether or not the measure had been “necessary in a democratic society”, while Article 9 and 11 required the state to ensure that religious communities were able to acquire legal capacity as entities under civil law [ara 90] there was no right for religious organisations to have any specific legal status [para 91].

That said, however, distinctions in the legal status granted to different religious communities should not portray some of them in an unfavourable light. In many countries, state recognition was the key to social reputation without which a religious community might be seen as “a suspicious sect” [para 92]. Therefore:

“The Court cannot overlook the risk that the adherent of a religion may feel no more than tolerated – but not welcome – if the State refuses to recognise and support his or her religious organisation, whilst extending the same to other denominations. This is so because the collective practice of religion in the form dictated by the tenets of that religion can be quintessential for the unhampered exercise of the right to freedom of religion. In the Court’s eyes, such a situation of perceived inferiority goes to the freedom of manifesting one’s religion” [ara 94].

Furthermore, it was inconsistent with the state’s duty of religious neutrality that religious groups should have to apply to Parliament and canvass political parties for their votes in order to obtain re-registration as churches and that they were treated differently from incorporated churches with regard to material benefits without any objective grounds for such treatment [para 102]. The Government had not given any reason why it was necessary to scrutinise afresh religious groups that were already active on the grounds that they might be dangerous to society, nor had it demonstrated any element of actual danger emanating from the applicant communities [para 104].

Article 9 did not give the applicants a right to state funding; however, subsidies that were granted to various religions in different ways called for “the strictest scrutiny” [para 106]. The withdrawal of benefits following the Church Act 2011 had only applied to certain denominations because they did not fulfill certain criteria in the new Act, notably the requirements as to the minimum membership and duration of their existence.

The European Commission for Democracy through Law (the Venice Commission) had published a report on the Church Act in which it concluded that it was the requirement for a religious entity to have existed as an association internationally for at least 100 years or in Hungary for at least 20 years was excessive. The Court agreed with the Commission’s findings. The state’s neutrality required that distinctions in recognition, partnership – for example, for outsourcing public-interest tasks – and subsidies should be based on ascertainable criteria,such as a community’s material capacity [para 109]. There were no objective grounds for the difference in treatment as regards the income-tax-based donations of one per cent, which were intended to support faith-based activities and to which only incorporated religious organisations were entitled [para 112].

The measures imposed by the Church Act 2011 had not been “necessary in a democratic society” and therefore violated Article 11 read in the light of Article 9. It was not necessary separately to examine the complaints under Article 14 read in conjunction with Article 9 and Article 11 or from the standpoint of Article 1 of Protocol No. 1 read alone or in conjunction with Article 14. Furthermore, the Court did not consider it necessary to examine separately the admissibility or the merits of the complaint under Article 6 § 1.

Just satisfaction under Article 41

The Court held by a majority that the finding of a violation constituted sufficient just satisfaction in respect of the claims of non-pecuniary damage of five of the individual applicants. Furthermore, the Court held by a majority that the remaining questions of the application of Article 41 were not ready for decision. It therefore reserved that question and invited the parties to notify the Court within six months of the date when the judgment became final of any agreement that they might reach.

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