The statement of the Forum for Religious Freedom Europe on Hungary’s law on the churches

Every year the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) organizes the Human Dimension Implementation Meeting (HDIM). This year the meeting takes place in Warsaw. One of the participating organizations is the Forum for Religious Freedom Europe (FOREF). They prepared an “intervention” which they will present on September 30 at one of the working sessions entitled “Tolerance and non-discrimination II/Intolerance against Christians and members of other religions.”

This is the text of FOREF’s recommendations and intervention:

* * *

Hungary: New Religious Law at Variance with OSCE Standards and
the European Convention on Human Rights

Recommendations:

That the Government of Hungary, and specifically the Minister of Human Capacities, place back on the official registry of incorporated churches included in the appendix of Act CCVI (206) of 2011 those churches deregistered unconstitutionally and in breach of the European Convention on Human Rights by Parliament in 2011. Hungary should honor its international legal commitment to the European Convention and abide by the Court’s decision.

That Hungary should modify its church law so that legal recognition of churches is not determined by 2/3 vote of Parliament, something criticized in both the European Court and the Hungarian Constitutional Court.

That participating States to assist Hungary to harmonize its laws in accordance with the Helsinki standards and international human rights law.

Intervention:

The Forum for Religious Freedom Europe (FOREF) is an independent, secular, civil society formation dedicated to defending the freedom of religion in accordance with international law.  We wish to express our deep concern about policies of the government of Hungary that violate Human Dimension commitments undertaken by the participating States in the Helsinki Final Act and in the Madrid, Vienna, Copenhagen, and Maastricht documents.  These policies have resulted in arbitrary discrimination against religious communities, and have given the state illegal and inappropriate power to interfere in religious life.

In 2011, the Hungarian Parliament passed a new law on “the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities.”  The law abolished the previous practices of treating religious communities equally and registering them through the courts, and instituted a tiered system that discriminates between “incorporated churches” and others that enjoy fewer rights and privileges, and which refers determination of “incorporated church” status to a 2/3-majority vote in Parliament. The law resulted in the de-registration of at least two hundred churches, including, inter alia Methodist, Pentecostal, Adventists and reform Jewish churches, as well as Buddhist and Hinduist congregations.  It has exposed religious organizations to bureaucratic harassment.
In February 2013, Hungary’s Constitutional Court ruled that 67 churches that had been deregistered unconstitutionally were therefore still churches.  According to point 217 of the Hungarian Court’s decision,

One of the requirements of possessing church status is that the minister must place religious communities that possess such status on the registry. Since, as a consequence of the Constitutional Court’s present decision, the provision is no longer in effect which stipulates the minister’s act of registration is tied exclusively to Parliament’s recognition of a church, there is no legal obstacle preventing religious communities, whose applications were rejected by the decision of Parliament, but who, as a result of the retroactive effect of this decision have not lost their church status … from reporting their data to the minister who can then register them.

Unfortunately, the government has deliberately disregarded the Court’s orders. The Ministry of Human Capacities has rejected the written requests of at least four deregistered churches to be placed on the registry of incorporated churches (Magyarországi Evangélium Testvérközösség, Budapesti Autonóm Gyülekezet, Isten Gyülekezete Pünkösdi Egyház, Fény és Szeretet Egyháza).   In a response worthy of a novel by Franz Kafka, the Ministry stated that it could not place the groups on the registry because according to the law, incorporated churches are already on the registry, and the churches making the request were not on the registry.  Of course, the reason they are not on the registry is because the government will not place them there. In yet an even more Kafkaesque twist, when these deregistered churches have turned to the Hungarian courts, the courts have consistently ruled that the Ministry should have placed them on the official registry. But because the courts can’t force the Ministry to register the churches, it has ordered that the churches should resubmit their request to the Hungarian Government, which can, of course, refuse again to comply with the written request ad infinitum.

Instead of adhering to the rule of law and abiding with the highest court, the Hungarian Parliament amended Hungary’s Basic Law in a way that explicitly grants Parliament the right to render arbitrary decisions concerning church registration.   The procedure by which Parliament determines the legal status of individual churches was also criticized explicitly by the European Commission for Democracy through Law (Venice Commission) as incompatible with the standards of due process (Opinion 664/2012 par. 76-77).  According to the European Court of Human Rights the scheme of parliamentary recognition “inherently carries with it the disregard of neutrality” (Magyar Keresztény Mennonita Egyház and Others v. Hungary, par. 102).  The Basic Law is thus in blatant violation of a fundamental principle of religious freedom and human rights.  No legislative body should have the power to rule over religious freedom.

In April 2014, the European Court of Human Rights ruled that that Hungarian Parliament’s deregistration of legally recognized churches constituted an interference with those groups’ fundamental rights as secured by articles 9 and 11 of the European Convention (Magyar Keresztény Mennonita Egyház and Others v. Hungary). Hungary appealed the decision to the Grand Chamber.  The Grand Chamber rejected that appeal in September 2014, so the decision is now final and binding.
In light of the ruling of the European Court of Human Rights, as well as our common Helsinki principles that uphold the freedom of religious communities from discrimination, and given the ruling by Hungary’s own Constitutional Court, FOREF respectfully asks that the Government of Hungary, and specifically the Minister of Human Capacities, Zoltán Balog, place those churches deregistered unconstitutionally by Parliament in 2011, in breach of the European Convention on Human Rights, back on the official registry of incorporated churches included in the appendix of Act CCVI (206) of 2011. Hungary should honor its international legal commitment to the European Convention and abide by the Court’s decision.

Furthermore, Hungary should modify its church law so that legal recognition of churches is not determined by 2/3 vote of Parliament, something criticized in both the European Court and the Hungarian court.

We ask the support of participating States to assist Hungary to harmonize its laws in accordance with the Helsinki standards and international human rights law.  Thank you for your attention.

Attila Mesterházy and Ferenc Gyurcsány outline their plans for the restoration of Hungarian democracy

It’s time to get back to the present, which is a great deal  less upbeat than the days just before the Hungarian government allowed the East Germans to cross into Austria. Those days were full of hope. The Round Table Negotiations were winding up and within a few days the establishment of the Fourth Republic was declared.

Today the mood of the country is outright gloomy. The economy is languishing and the opposition is in disarray. And yet one must move ahead. One helpful sign: a discussion about how the wounds the Orbán government inflicted upon the democratic institutions of the country can be healed is going on in earnest on the Internet. Zsófia Mihancsik, editor-in-chief of Galamus, was the one who initiated a series of articles on the topic. Up to date eleven pieces have appeared; I will compare the last two. Yesterday Ferenc Gyurcsány wrote and today Attila Mesterházy.

Attila Mesterházy

My first impression was that their ideas on the restoration of democracy in Hungary run along very similar lines. In my opinion, if it depended only on these two men, MSZP and DK could come to an understanding on practically all the important issues in no time. I don’t know whether Gordon Bajnai will join these two politicians and outline his own ideas on Galamus, but from what I know about E14-PM ‘s view of the future without Viktor Orbán it is quite different from those of Gyurcsány and Mesterházy.

Ferenc Gyurcsány

So, let’s see what they agree on. Practically everything. Neither of them believes in any kind of compromise with Viktor Orbán’s party. Gyurcsány, as is his wont, puts it in stark terms. He considers the Orbán government illegitimate and illegal. Illegitimate because it didn’t receive a mandate to change the basic democratic structure of the country and lead it toward autocracy. It is illegal because it strives toward the acquisition of exclusive power. He also finds the 2012 Constitution illegal and illegitimate.

Neither Gyurcsány nor Mesterházy thinks that the 2012 Constitution can be left in place, but while Gyurcsány considers a two-thirds majority necessary to write a new constitution, Mesterházy perhaps  a little bit more realistically thinks that some kind of legal possibility exists that might solve the problem. For example, wide societal support for a new constitution that could force a referendum on the issue. That would require some very clever legal finagling given the current restrictive provisions of the Hungarian constitution.

Mesterházy spends some time distinguishing between Fidesz as a party and the Fidesz voters. He is convinced that the majority of those who voted for Fidesz in 2010 did so in the hope that Viktor Orbán would ensure them a better future but that by now they are disappointed in their man and his government. I disagree with his assessment of the current state of affairs. I don’t think that most Fidesz voters are disappointed. Yes, a lot are, but the so-called hard core is unshakable. In my opinion Mesterházy is far too optimistic when he writes about the eventual attrition of Orbán’s followers. Past experience tells us that 1.5 million people will always vote for Fidesz no matter what. Gyurcsány doesn’t address this problem.

Both think that political appointees must be relieved of their jobs because otherwise the new government would be totally powerless to make the changes necessary for the restoration of democracy. Gyurcsány specifically mentions a few crucial appointments in the judicial system such as Fidesz nominated judges to the Constitutional Court, new high-level judges, and the supreme prosecutor. He also thinks that many of the newly appointed civil servants most likely will have to be let go because by now the whole civil service is completely politicized. Unfortunately neither of them tells us how he would be able to accomplish this legally.

Both agree that the illegal concessions, be they land leases or tobacconist shops, must be reevaluated and if necessary revoked. As for the tobacco state monopoly Gyurcsány specifically calls for an immediate abrogation of the law. Let’s open the tobacco market, he says, and let the new Fidesz owners compete on a level playing field.

Gyurcsány is quite specific about which Fidesz changes he would leave alone. He would allow municipalities to choose whether they want to have their schools back or whether they are satisfied with having local schools under centralized state administration. One could even make an argument to leave hospitals in the hands of the state. He would not abolish the new administrative unit, the járás, although one most likely would give them autonomy instead of centralized state oversight.

These two men could easily see eye to eye. EP14-PM is a different matter. Bajnai’s team are ready for a compromise with Fidesz, and they think they could live with the current constitution after a little fiddling with it. On this point both Mesterházy and Gyurcsány are clear: there can be no compromise with Fidesz. This is such a basic disagreement of principle that it will be difficult to resolve. And, by the way, E14-PM again lost a couple of percentage points according to the latest Tárki poll that was released only today. The postponement of the negotiations in the hope of gaining strength didn’t bring the expected results. On the other hand, MSZP gained a couple of percentage points.