Testimony of H. David Baer, Texan Lutheran University, for the Record

Testimony Concerning the Condition of Religious Freedom in Hungary, submitted to the U.S. Commission on Security and Cooperation in Europe (the Helsinki Commission) by H. David Baer, Texas Lutheran University, March 18, 2013

Changes in Hungary’s religion law, 2011-2013

 

In July 2011, Hungary’s 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.”  Act C of 2011 was a cardinal law, requiring a 2/3 parliamentary vote to be passed or amended.  However, the law was passed through a highly irregular parliamentary procedure inappropriate for legislation on such a fundamental matter as religious freedom.  An initial bill was brought to the floor by a representative of the Christian Democratic People’s Party (KDNP), a coalition party in the ruling government, but two hours before the final vote, a member of Fidesz, János Lázár, proposed an amendment from the floor that changed the bill in its entirety.  Lázár’s surprise version of the bill was debated on the floor for two hours and passed by Parliament.

On December 19, 2011, the Constitutional Court struck down Act C on the basis of a narrow objection to the irregular procedure by which the law was passed.  Three days later, on December 22, a new religion bill essentially identical to Act C was submitted to Parliament’s Committee on Constitutional, Legislative and Judicial Matters (Alkotmányügyi, igazságügyi és ügyrendi bizottság).  The Constitutional Committee discussed the bill from 9:09 to 9:53 a.m. and then forwarded it to Parliament, where debate was taken up and closed the very same day.  Although representatives in Parliament had less than 24 hours to consider the contents of the bill and propose amendments, it was passed as Act CCVI of 2011 and went into effect January 1, 2012.

Act CCVI of 2011 introduced an elaborate registration procedure for legal recognition of churches.  The Act stipulates that religious groups seeking legal recognition must conform to numerous criteria, almost all of which are problematic.  Some criteria presuppose a substantive definition of religion that is biased toward Christianity.  For example, groups seeking legal recognition need to have “a confession of faith and rites containing the essence of its teaching.”  Although this criterion may be appropriate for what are called “orthodox” religions, that is, religions like Christianity which emphasize confessional and official teaching, it is hardly appropriate for what are called “orthoprax” religions, that is, religions like Judaism and Buddhism which emphasize religious practices but do not produce authoritative confessions. Other criteria are excessively burdensome.  For example, groups seeking legal recognition need to have been “operating internationally for at least 100 years or in an organised manner as an association in Hungary for at least 20 years.”  Some criteria are sweepingly vague.  For example, the activities of a religious group seeking registration cannot be contrary to the Hungarian constitution – a constitution, one might add, that has already been substantially amended four times in a single year.

According to the Act, legal recognition to churches is granted only by a 2/3 vote of Parliament.  However, even in cases where a religious group meets all of the criteria enumerated in the law, Parliament is not required to grant that religious group legal recognition.  Tamás Lukács, chair of the parliamentary Committee on Human Rights, Minority, Civic and Religious Affairs (Emberi jogi, kisebbségi és vallásügyi bizottság), has stated repeatedly that religious groups do not have a right to be legally recognized as a church or religious community, but that legal recognition is a matter of political discretion.  In Lukács’s view the state is free to refuse recognition to religious groups even in cases where they meet all the criteria enunciated in law.  Importantly, the Committee on Human Rights which Lukács chairs has been responsible for determining whether applications by religious groups for legal recognition are forwarded to Parliament.  Thus Lukács’s views on these matters are of consequence.

When Act CCVI of 2011 was first passed, Parliament recognized only 14 churches/religious communities, all of which were either Christian or Jewish.  In February 2012, perhaps in response to international pressure, Parliament recognized an additional 13 groups, including Muslims, Buddhists, and smaller Christian groups, thereby raising the number of recognized churches to 27. (Numerous reports have listed the number of accepted churches as 32.  However, Act CCVI of 2011 and its “annex” list a total of 27 churches.  Five Buddhist communities merged and were recognized collectively as one church in the law.  If one incorrectly adds those five Buddhist groups separately to the list of 27 accepted churches, one gets 32).  Act CCVI of 2011 also stripped all religious groups not recognized by Parliament of legal standing, forcing them to apply for recognition as civil associations.

Criticisms of Hungary’s religion law

In March 2012, the European Commission for Democracy Through Law (Venice Commission) issued an opinion on Act CCVI of 2011.  Although the Commission raised questions about many aspects of the law, its most severe criticism was directed against the procedure by which Parliament determined legal recognition.  According to the Venice Commission:

the recognition or de-recognition of a religious community (organization) remains fully in the hands of Parliament, which inevitably tends to be more or less based on political considerations.  Not only because Parliament as such is hardly able to perform detailed studies related to the interpretation of the definitions contained in the Act, but also because this procedure does not offer sufficient guarantees for a neutral and impartial application of the Act. . . .Motives of the decisions of the Hungarian Parliament are not public and not grounded.  The recognition is taken by a Parliamentary Committee in the form of a law (in case of a positive decision) or a resolution (in case of a negative decision).  This cannot be viewed as complying with the standards of due process of law. (Opinion 664/2012 par. 76-77).

In fact, as Tamás Lukács pointed out in the Hungarian media, since church recognition is a matter of political discretion, members of Parliament are not even required to offer reasons related to the criteria enumerated in the law for refusing recognition to a religious group.

That members of Parliament do not feel constrained by the criteria set forth in Act CCVI of 2011 was made clear in a meeting of the Committee on Human Rights, Minority, Civic and Religious Affairs held on November 27, 2012.  The Committee considered and rejected an application for recognition by a Christian group named Lectorium Rosicrucianum.  The publicly available minutes from this meeting indicate clearly that members of the Committee did not make their evaluations on the basis of the criteria enunciated in Act CCVI of 2011.  Mária Wittner, a member of Fidesz, reasoned against legal recognition on the following grounds:

There was a time when we were considered pagans; yet we weren’t pagans – we believed in one God. Then came the Reformation, the Reformed Church, then the Lutheran, and churches have multiplied, even though there is only one God. Well, even though I don’t believe that this association will be able to attract many members in Hungary, I still believe that sects should not be considered churches. I don’t know for what purpose or whether it is to reach worldwide hegemony, but I see that the tendency today, even in religion, is to divide and conquer! We have Christianity here, we have a Catholic Church, which is more than two thousand years old and has existed in Hungary for a thousand years, and we have a reformed Church as a result of the Reformation, but what I was most struck by is that 187 churches have been registered in this country since 1990. Gentlemen! There is only one God! One God! (EMB/147-1/2012, page 11).

The inappropriate character of this reasoning will be apparent to everyone.  The point to emphasize, however, is that Act CCVI of 2011 allowed reasoning of this sort to be the basis for determining whether or not a religious group received legal recognition.

The troubling features of Act CCVI of 2011 led Hungary’s ombudsman to file a petition with the Constitutional Court, and numerous deregistered religious groups also filed petitions.  On February 26, 2013, in a substantial and carefully reasoned decision, Hungary’s Constitutional Court struck down as unconstitutional numerous provisions within Act CCVI of 2011.  Article 7 of Hungary’s new constitution guarantees religious freedom.  Article 15 guarantees equality under the law.  Articles 24 and 29 guarantee each citizen the rights of due process and legal redress.  Thus a religious association of Hungarian citizens has an equal right to apply for recognition as a church by means of a procedure that follows due process and ensures the right of legal redress.  The provisions for recognition set forth in Act CCVI of 2011 failed to do this.  Thus the Court struck down those parts of the Act in which Parliament had determined legal recognition of religious groups.

Fidesz’s response to this, as to other decisions of the high court, has been to amend the constitution.  The controversial fourth amendment, passed on March 11, grants Parliament the authority to determine which religious groups are recognized as churches by changing the text of article 7 on religious freedom.  The provision of Act CCVI of 2011 most severely criticized by the Venice Commission has now been written into the Hungarian constitution.  Reconciling Parliament’s power to bestow legal recognition with the rights of due process and legal redress will be a challenge.  Furthermore, article 7 allows Parliament to decide not only the content of the law concerning religious freedom, but also its application in individual cases.  Such a provision would appear in tension with the separation of powers principle enshrined in article C of Hungary’s constitution.

Impact of Hungary’s religion law on unrecognized religious groups

In addition to undermining principles of constitutionalism, Act CCVI of 2011 has had a significant impact on religious groups not legally recognized by Parliament.  As a consequence of the Act numerous religious communities that had been legally recognized as churches prior to 2011 were stripped of their status.  Indeed, Act CCVI of 2011 completely replaced the legal regime that had governed religious freedom in Hungary since 1990.  Thus far not much attention has been directed toward assessing the impact of deregistration on those groups.  The Venice Commission opinion focused on the registration procedure itself, as did the ruling of the Constitution Court.  But in the meantime deregistered religious communities have been forced to adapt to a new legal context in which they are denied what most Americans would consider basic aspects of the right of religious freedom.

Over the past six months I have been working to assess the impact of Act CCVI of 2011 on Hungary’s unrecognized religious communities.  Using public records and resources available on the internet, I have attempted to compile a comprehensive list of Hungary’s unrecognized religious communities.  I also visited Hungary in summer 2012 and interviewed numerous representatives of deregistered churches.  Additionally, I recently completed a survey of deregistered religious communities that seeks to measure objective indicators of religious discrimination.

Estimates concerning the number of deregistered churches vary.  The Hungarian government claims there were well over 300 registered churches in Hungary prior to 2011, but has never explained how it arrived at this estimate.  I have been able to identify 122 deregistered churches thus far, some of which ceased operating on their own prior to 2011.  I believe this list to be accurate and close to complete.  I estimate that somewhere between 160 and 180 independent churches/religious communities were operating in Hungary prior to passage of Act CCVI of 2011, and that the Act deprived approximately 130 religious communities of legal recognition.  I have been able to establish contact with 106 unrecognized religious groups, whom I invited to participate in my discrimination survey.  Forty-nine groups responded to my inquiry and 43 agreed to participate, which translates to a participation rate of 40%.   I closed the survey only two weeks ago and have not yet run a complete statistical analysis of the data.  I wish to emphasize, therefore, that the statistical information provided below is provisional.

Initial analysis suggests that while almost all religious groups report some level of discrimination, the amount of discrimination varies significantly, with a little over half of the participants reporting what I would call significant discrimination.  After Act CCVI was passed, deregistered churches were told they must apply for recognition as civil associations.  Failure to apply for status as a civil association, or failure to meet the deadline for applying as such, would result in total liquidation of the community’s assets, that is, appropriation of the community’s property by the state.  The overwhelming majority of religious groups surveyed indicate that they have been recognized as civil associations.  However, I was able to identify two instances were courts ordered the liquidation of a community and a few additional instances were a final decision has yet to be rendered.  Even so, a surprising number of those surveyed, almost 15%, report that some of their property was liquidated after deregistration.  Others report, again about 15%, that leases they held on rental property were terminated.  Among those surveyed, 16% indicated they were forced to shut down schools as a consequence of being deregistered; 30% indicated they were forced to close down charitable organizations; 40% indicated they were forced to abandon additional ministries (other than education and charity work).

Unlike legally recognized churches, religious groups classified as civil associations do not enjoy complete internal autonomy.  Civil associations must have a specific administrative structure.  For example, they must have a presidency and all members must have the right to vote on decisions made by the association.  In many cases, although not all, these administrative requirements violate the religious conscience of believers.  Among deregistered religious groups participating in my survey, 17% refused to apply for civil association status, and many of them reported in written comments that their refusal to apply was based on reasons of conscience.  These groups now live under the fear of court ordered liquidation.  Among deregistered religious groups that did apply for recognition as a civil association, 36% reported that they had been required to change their organizational structure.  Additionally, a high number of respondents, 30%, reported that their clergy had been prevented from visiting patients in the hospital; 27% reported that they were prevented from visiting persons in prison.  A small but noticeable number of respondents, a little over 10%, reported that they had been forced to change their religious confession, their official teaching, or worship services in order to be recognized as a civil association.  Also, unrecognized religious groups are not permitted to have the word church in their official name.  Among those groups applying for recognition as a civil association, 60% reported that they had been forced to change their name.

Reasons offered for the new law by the Hungarian government

 When Parliament first passed Act CCVI of 2011, the Hungarian government claimed the new law was necessary in order to correct abuses made possible by the previous religion law.  In the Hungarian media, representatives of the government frequently spoke of “business churches,” an imprecise and polemical term.  The claim was that non-religious organizations were registering themselves as churches in order to receive tax exemptions and state subsidies.  However, no impact studies were conducted, so neither the extent of abuse nor the effectiveness of the remedy could be evaluated.  The only evidence of abuse offered by the government was the claim that more than 300 churches were operating in Hungary.  This number, the government believed, was clearly excessive and indirect evidence of the existence of “business churches.”  As already indicated, I believe the 300+ estimate is too high.  I would also add that in the course of my research I have been able to identify only two cases where I suspect organizations registered as churches under pretext.  The most notable of these involves the mayor of Érpatak, a man named Mihály Orosz who is a member of the right-wing political party Jobbik.  Mr. Orosz was affiliated with, or the founder of, at least four different groups registered as churches under the old law.

Even if there were significant abuse under the old law, having Parliament bestow legal recognition on religious groups hardly seems an effective remedy.  In fact, the possibility of remedy existed under the old legal regime, something pointed out by the Constitutional Court in its February 2013 ruling.  According to the Court, under the old law a state prosecutor had a right to request information and investigate a church suspected of illegal activity.  An organization engaged in running a business but seeking registration as a church could thus be prevented from registering, or if already registered, prosecuted for violations of the law.  According to the Constitutional Court, under the old law state prosecutors initiated legal proceedings against registered churches on a number of occasions.

Conclusion

When attempting to interpret the behavior of a political regime whose decision-making process is not transparent, political scientists often attempt to infer intentions from effects.  That is, instead of taking the public pronouncements of the regime at face value, political scientists examine the effects of the regime’s actions to determine its true intentions.  Viktor Orbán’s government is not transparent.  Cardinal laws addressing basic human rights and constitutional amendments addressing the rule of law are introduced in Parliament and approved in a matter of hours.  Even after fundamental laws have been passed, they are amended immediately whenever the Constitutional Court renders a decision not to the government’s liking.  I therefore submit that the best way to understand Viktor Orbán is to look not at what he says, but at what he does.

If we look at what the Orbán government has done in respect to religious freedom, infering intentions from effects, it becomes difficult to believe that the intention behind Act CCVI of 2011 was to eliminate legal abuses occuring under the old law.  First, the Orbán government never made an attempt to assess the extent and nature of the alleged abuse.  Second, legal remedy against abuse was already available.  Third, the negative impacts on religious freedom caused by Act CCVI of 2011 were far greater than any legal abuses the Act putatively sought to correct.  If the aim of the government had been to eliminate abuse, much simpler and less destructive solutions were available.  Addressing the problem of “business churches” certainly did not require modifying the constitution in a way that allows Parliament to bestow legal recognition.

A more plausible explanation for Act CCVI of 2011 is that the Orbán government is seeking to hinder the activities of religious groups it dislikes, perhaps because it views those groups as “sects,” perhaps because the leaders of some of those groups have criticized the government, or perhaps because the membership of many of those groups is Roma.  Whatever the Orbán government says, its actions indicate that it holds the right of religious freedom in low regard.