Content

Balázs Schanda, State and Church in Hungary in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 363 - 388

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5, https://doi.org/10.5771/9783845296265-363

Bibliographic information
State and Church in Hungary Balázs Schanda Social Facts Since the Reformation Hungarians have been divided between Catholicism and Protestantism (mainly Calvinism). Orthodox minorities and a Jewish community have been present in the country since early times. The proportion of the Jewish population has risen in the 19th century from 1% to 5% due to immigration mainly from Galicia. A large majority of Orthodox Christians (Romanians and Serbs) have been cut off Hungary by the post World War I border arrangements. Two-thirds of the Jewish community perished in the Holocaust, particularly in 1944. The history of Hungary was determined from the 15th to the 17th century by the conflict with the Ottoman Empire – widely understood as a war between the Christian and the Muslim world. As the Turks were driven out from the country by the end of the 17th century the presence of Muslims practically ceased until the very recent times. For the last century Hungary has been a country that has lost more of its population due to emigration than it gained from immigration. In fact a large part of immigrants are ethnic Hungarians from the neighboring countries who were cut off Hungary due to the post World War I border arrangements. Since the collapse of the communist regime, the migration balance is slightly positive as about 5% of the population lives and works in other EU countries and slightly more non-nationals have moved into the country. Their ethnic mix varies from Hungarians to Chinese. The percentage of resident aliens is about 2% of the population. The number of Muslims in the country has risen from a few hundred thirty years ago to a few thousand; that is still a relatively low figure. Half of the Muslims declared a Hungarian identity alongside Turkish, Arab, Persian and other identities. The share of those having a higher education is relatively high. There are no exact data on religious affiliation. Whereas at the census in 2001 only 11% refused to answer the question on religious affiliation, ten years later 27% did not provide an answer. The percentage of those declaring that they did not have a religious affiliation has risen from 14,5% to 18%, as 20% of younger generations do not belong to any denomination. I. 363 Data are difficult to compare as in 2001 “religion” was the question, while ten years later the question was to which religious community one “feels one belongs to”. From a population of about 10 million most define themselves as Catholics, but in 2011 only 3.87 million declared that they belonged to the Catholic Church. In 2011 1.15 million declared themselves to be members of the Reformed Church and 214,000 of the Lutheran Church. 167,000 belong to other religious communities. Within younger generations, non-adherence rises but the proportion of declared atheists does not rise. Older generations (over 60) show a higher adherence to religion (almost ten times more declared an adherence than no adherence). Under the age of 40 only two times more stated an adherence than none; data, however, do not show secularisation on the rise. That means that generations born in the 1960s and those born in the 1980s have a similar level of religiosity. The most significant smaller religious communities are the Jehovah Witnesses (31,000 declared adherents), the Faith Church (an Evangelical congregation with 18,000 declared members), Buddhist (9,000), Baptists (18,000), 6,000 Adventists, 9,000 Pentecostals, 2,400 Methodists, 6,800 Unitarians. The number of Muslims was 5,579 (2,907 in 2001).1 Historical Background Hungary is a country that emerged into statehood by its adoption of western Christianity in the first millennium. The foundations of the structure of the Catholic Church were laid by St Stephen (997–1038), the first king of Hungary, who founded ten dioceses. Whereas Hungarian history is determined by adherence to western Christianity, Orthodox minorities have been present in Hungary throughout the country’s history. The Reformation reached the country when the central state power was weak, and the country was engaged in war with the Ottoman Empire. Thus, the Reformation was highly successful in sixteenth-century Hungary, as the majority of the population turned first to Lutheran and, a little later, to Calvinist doctrine. The Reformed (Calvinist-Presbyterian) Church became the birthplace of national culture with respect to Bible translation, schools, and so on. The Counter-Reformation, supported by the royal court (from 1526, the Habsburg dynasty) also achieved success, but the II. 1 Census data available at: http://www.ksh.hu/nepszamlalas/vallas_sb (March 30, 2018.). Balázs Schanda 364 country has preserved a high level of denominational pluralism to the present time. A generally tolerant approach to religious issues is deeply rooted in Hungarian society. After the Turkish wars at the end of the seventeenth century, ethnic Hungarians became a minority in the Kingdom of Hungary. While the Serbs in the south remained Orthodox, large numbers of Romanians in Transylvania and Ruthenians in the Carpathians entered into union with the Catholic Church. In the seventeenth century, the Protestant nobility achieved considerable freedom in Hungary. However, due to the re-Catholicising efforts of the Habsburg kings, this freedom was gradually curtailed, whereas the state influence in the affairs of the Catholic Church was also strong, especially in the enlightened absolutist Josephinist (Joseph II, 1780–1790) era, when, for example, contemplative religious orders were dissolved. The Reformed and the Lutheran religions regained their freedom at the end of the eighteenth century.2 At that time, although the free exercise of these religions was permitted, their status remained far from equal to that of the Catholic Church. Even though revolutionary legislation in 1848 declared the equality of all accepted religions,3 the emancipation of Jews did not occur until 1867.4 Partly due to massive immigration by the end of the nineteenth century, the Jewish population had risen to over 5% (1.3% at the end of the eighteenth century). The liberal era of the late nineteenth century enhanced the rapid assimilation of the Hungarian Jewry. This era produced the legislation which proclaimed religious freedom for all, restricting, however, the right of public worship only to the communities that were acknowledged (either incorporated or recognised).5 After the trauma of the secession of Hungary that took place after World War I, national conservative forces dominated the political and the cultural landscape, cutting back some of the liberal legislation of the late 1800s. Hungary became a small country surrounded by its former territories with large ethnic Hungarian minorities. The country became involved in World War II and came under German occupation on 19 March 1944. In the following few months, three-quarters of the Hungarian Jewry – who had suffered massive discrimination but had enjoyed relative security until then – were deport- 2 Leopoldi II, Decree, Art. 26 (1790). 3 On the Issue of Religion, Act XX/1848. Accepted religions were: Latin, Greek, and Armenian Catholic, Reformed, Lutheran, Unitarian, Serbian, and Romanian Orthodox. 4 On the Equality of Israelites in Regard to Civic and Political Rights, Act XVII (1867). 5 Act XLIII/1895. State and Church in Hungary 365 ed with the assistance of Hungarian authorities to Nazi extermination camps. It has to be noted that in Principality of Transylvania (independent of the Kingdom of Hungary from 1526 to 1848), the development of religious freedom followed different path. The free exercise of Reformed (Calvinist), Lutheran, Unitarian, and Catholic denominations was allowed by 1568 in Transylvania, while the exercise of the Orthodox faith was also tolerated. No other European state displayed such tolerance in its church policies at that time. After the communist takeover in 1948, religious freedom remained a dead letter of the Constitution. Education was nationalised (1948), religious education limited (from 1949), theological faculties detached from state universities (1950), religious orders banned (1950), property of religious communities mostly confiscated, numerous religious leaders arrested and sentenced, including the Primate of the Catholic Church in Hungary, Cardinal Mindszenty, who was arrested on 26 December 1948 and after being tortured, sentenced to life imprisonment in February 1949. After the arrest of a considerable part of the Hungarian episcopate, the remaining Bishops’ Conference signed an agreement with the Government in 1950, regulating the fate of members of banned religious orders and consenting to the operation of eight Catholic secondary schools managed by four orders. Other denominations had already signed similar agreements in 1948, basically acknowledging the emerging situation. The Churches were generally put under strict state control that was exercised by the State Office of Church Affairs. Although from the 1960s, state pressure began to relax to some extent, the general rules and practices of the regime did not change until the late 1980s. In 1964, the Holy See and Hungary signed a document on the procedure to be followed with regard to the appointment of bishops, the oath of the clergy on the constitution, and the operation of the post-graduate training institution of the Hungarian clergy, the Pontifical Ecclesiastical Institute in Rome. On a much longer list of sensitive issues, no agreement was reached. In a remarkable way, the competence of the Holy See with regard to issues of the Catholic Church in Hungary had been acknowledged; a unique development in the Soviet bloc. From that date, representatives of the regime and the Holy See met twice a year, once in Budapest and once in the Vatican, but diplomatic relations were not reestablished. In the late 80s, control over religions became looser, a number of new denominations were acknowledged, and traditional denominations – including members of the Catholic episcopate – began to claim more freedom. The collapse of the communist system (1989/1990) brought a gradual new beginning for religious freedom and in church-state relations. Balázs Schanda 366 Following the landslide electoral victory of a centre-right political alliance (2010) far-reaching changes were introduced to religion-related legislation, as well as in many other fields of life. Legal Sources The Basic Law (the Constitution) provides for religious freedom with a wording similar to that of the Universal Declaration of Human Rights. In addition to that document, however, the Basic Law expressly recognises the right not to express conviction. Convictions can also be expressed in ways not contrary to the law. The Basic Law also states that church and state function separately and provides for the co-operation of religious communities and the state (Art. VII). The Basic Law also provides for nondiscrimination, that is, on the basis of religion (Art XV (2)), and recognizes the rights of parents to decide on the education of their children (Art XVI (2). The Act on Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities (2011), provides details of both individual and collective aspects of the freedom of religion and for an institutionally strict, but benevolent separation.6 Details are regulated by separate legislation on the restitution of confiscated church property (1991),7 the funding of religious communities (1997),8 laws on public education (2011),9 and higher education (2011)104 – all modified in numerous cases. Agreements concluded with the Holy See (diplomatic relations – 1990, army chaplaincy – 1994, funding – 1997 (revised in 2013)), and other religious communities (Reformed Church, Lutheran Church, Alliance of Jewish Communities, Baptist Church, Serbian Orthodox Church) significantly contributed, in general, to ensuring stability in church-state relations. III. 6 Act CCVI/2011. 7 Act XXXII/1991. 8 Act CXXIV/1997. 9 Act CXC/2011. 10 Act CCIV/2011. State and Church in Hungary 367 Basic Categories of the System The doctrine of neutrality elaborated by the Constitutional Court on the basis of the previous constitution, may be seen as the most important principle governing the State in its relationship with the religious communities as well as with other ideologies. The State should remain neutral in matters concerning ideology; there should be no official ideology, be it religious or secular. Neutrality means that the State should not identify with any ideology (or religion); consequently it must not be institutionally attached to churches or to any one single church, or to any organisation based on an ideology. This shows that the underlying doctrine behind the principle of separation (as explicitly stated in the Basic Law) is the neutrality of the State. Separation goes hand in hand with co-operation especially with regard to public services. Neutrality in Hungary should not be understood as ‘laicism’; the State may have an active role in providing an institutional legal framework as well as funds for the churches to ensure the free exercise of religion in practice. Public institutions, including schools, universities, hospitals, etc., are bound by the principle of neutrality.11 There are no religious symbols at public institutions. The meaning of separation may be defined on the one hand by respecting the autonomy (or self-determination) of the churches (‘the State must not interfere with the internal workings of any church’),12 and, on the other hand, by the principle stated in the law on religious freedom: ‘No State pressure may be applied in the interest of enforcing the internal laws and rules of a church.’13 The State has no competence concerning the nomination of religious authorities or ministers. Legal Status of Religious Communities There has been a recognition procedure for denominations since 1895 when a two-tier system was introduced with incorporated religions (Catholic, Orthodox, Calvinist, Lutheran, Unitarian and Jewish) as well as recognised denominations. In 1947 traditional denominations have lost IV. V. 11 Decision 4/1993. (II. 12.) AB. In English: L. Sólyom & G. Brunner (eds.): Constitutional Judiciary in a New Democracy: the Hungarian Constitutional Court. Michigan, 2000. 12 Constitutional Court Decision 4/1993. (II. 12.) AB. 13 Act CCVI/2011. § 8 (2). Balázs Schanda 368 their “privileges” and all religious communities were put into to the category of recognised denominations. As the recognition procedure was politically abused during the communist regime the new legislation adopted in 1990 aimed at the elimination of state control. Accordingly, the registration of churches was done by the county courts in the same way as associations, political parties or foundations were registered. The requirements were highly formal: communities wishing to be registered needed to submit the names of 100 private individuals as founding members, and a charter containing at least the name of the religion, its headquarters address, and its internal organisational structure, and specifying those internal units of the church that should enjoy legal personality. The founders had to submit a declaration that the organisation they have set up had a religious character and that its activities complied with the Constitution and the law (sections 89). The number of registered churches has grown to over 300. All Churches that were registered had the same rights and obligations. Equality, however, has become a matter of legal status and not of social significance. Following the new constitution (2011) Parliament passed a new law on churches replacing Act IV/1990. The new law (Act CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities) entered into force on January 1, 2012. The Venice Commission (European Commission for Democracy through Law) stated in its opinion on the new law that eliminating “the abuse of religious organisations, which have operated for illicit and harmful purposes or for personal gain” was a legitimate concern. Also the “limitation of number of recognised churches” was legitimate according to the Venice Commission (17). Instead of a formal registration system and equal status for religious communities the 2011 Church Act provided for a two-tier system. Religious communities could either function as religious associations or as recognised churches. Religious associations only needed ten members to obtain registration and enjoy a wide autonomy. Recognition, however, depends on a decision of the Parliament (a qualified majority is needed) and presupposes the co-operation of the community and the state in the fulfillment of public duties. Religious associations could seek recognition if they had been functioning in Hungary for at least twenty years in an organised way or they represent a religion practised internationally for at least a century (the earlier version of the law did not take foreign existence into account). Of the 82 applying for recognition. Parliament recognised 17 religious communities in February 2012, raising their total number to 31. State and Church in Hungary 369 All religious communities registered under the 1990 law that were not recognised as a church have become associations upon request. Religious associations may use the word “church”. In a number of practical matters the legislator when passing the final version of the new law seemed to meet the concerns of minor religious communities including communities that continue to function as associations. Examples could be that these associations have the right to own agricultural land or to run theological colleges. The new religion law (and the law on associations) ensures a base level entity status for all religious communities. The most important difference between religious associations and other NGOs is that unlike other associations religious associations enjoy full autonomy. Like recognised churches they cannot be subjects of state control and function separately from the state. The European Court of Human Rights has found a violation with regard to the freedom of association read in light of the freedom of religion in a case launched by communities that were not recognised by Parliament and only registered as religious associations (Magyar Keresztény Mennonita Egyház and Others v. Hungary). After the judgment Parliament has discussed a bill to make the registration/recognition system mere detailed and granting more rights to communities not recognised by Parliament but the bill failed to obtain the necessary qualified majority in Parliament in 2015. Due to the amendment of the 2011 Church Act from April 2019 instead of the two categories (religious association – recognized church) there are be four categories provided for religious communities. The base level entity remains the religious association (vallási egyesület), a legal person enjoying full autonomy. A novelty of the amendment is that also religious associations have the right to receive tax assignments from income tax payers. This way they will enjoy a kind of public subsidy beyond tax exemption. The law also provides for a possibility to enter into agreements between the state and a religious association for further subsidies and the support of public benefit activities (like education, health care etc.). A religious association can be upgraded into a registered church (nyilvátartásba vett egyház) after three years if in the three preceding years at least 1,000 taxpayers in average have assigned the 1% of their income tax to them and they have been functioning for at least five years as a religious association in Hungary or a hundred years abroad. Smaller religious associations can become registered churches if they declare to have no intention to receive extra public funding beyond the tax assignment system. For Balázs Schanda 370 further subsidies the state can also establish a contractual relation with registered churches. A slightly higher status would be that of the incorporated churches – a kind of second level registration (bejegyzett egyház). A religious association can become an incorporated church if in the previous five years in average at least 4,000 taxpayers have assigned the 1% of their income tax to them and they have been functioning as a religious association for at least 20 years in Hungary or 100 years abroad or it has been a registered church for at least 15 years. Religious associations with at least 10,000 registered members can also become incorporated churches after 20 years if they declare not to run for further public subsidies. Beyond the possibility of agreements between an incorporated church and the state on public benefit activities incorporated churches also take part in the tax assignment system and they also receive an additional subsidy that supplements the tax assignments distributing the relevant share of the tax not covered by assignments (1% of the income tax is distributed between churches – the relevant share of those who do not make use of their right to assign 1% of their tax is distributed according the proportion established by those who assigned the 1% of their tax). Religious associations, registered and incorporated churches are registered at the Budapest Metropolitan Court. The highest status provide for religious entities remains that of recognized churches (bevett egyház). When the state enters a comprehensive cooperation agreement with an incorporated church this grants recognition to it. Such agreements are promulgated by special acts of Parliament. Recognized churches enjoy a wide range of special rights and public support including the public funding of their public benefit institutions (like schools, hospitals etc.). Registered, incorporated and recognized churches as well as their internal entities are ecclesiastical legal persons, church entities. All ecclesiastical legal persons have the right to provide religious education in public schools and to receive public funding for such education. Opening the tax assignment system for non-recognized churches was a consequence of a Constitutional Court decision (17/2017. (VII. 18.) AB) that stated that whereas distinctions between various types of religious communities can be legitimate under the Constitution there can be no difference between private individuals. Institutional subsidies may be different (for example the public support for the reconstruction of architectural heritage) but on the level of the individual believer/taxpayer differences would be discriminative. State and Church in Hungary 371 The legislator has established a highly complex system for providing an adequate status for various communities. The amendment added some rights to all communities (e.g. the tax assignment system). Interim steps between religious associations and recognized churches could be appealing for some communities (additional funding, religious education at public schools, and a higher social prestige). Whereas religious associations have a right to be upgraded to registered of incorporated church if they meet the criteria the decision on becoming a recognized church remains a discretionary decision of the Parliament: both state and the church have to be willing to cooperate for the public good. If a religious community were adopt an unconstitutional practice Parliament could withdraw recognition after an opinion delivered by the Constitutional Court. Associations could be dissolved by a court decision upon the lawsuit of the public prosecutor in case of unlawful activities. It is to be noted that religious associations – unlike other associations – are not subject to control by the public prosecutor with regard to the lawfulness of their activities. Internal entities of churches are registered by the competent government agency instead of the court if the church wishes to register internal entities. Religious Communities within the Political System There are no legal limitations on the political involvement of churches. The strict interpretation of the principle of separation rules out the possibility of any imposition of bans or limitations on clergy or churches concerning their political activities. Church practices differ on this issue. Mainstream churches prefer not to become involved in partisan politics; this, however, is a case of self limitation, not one imposed by public authorities. The self restraint of churches is often also urged by certain actors in the political arena. Culture Religious education Churches have the right to provide religious education in public schools and kindergartens at the request of children/students and their parents. VI. VII. 1. Balázs Schanda 372 Non-public schools are not obliged to provide religious education, but they may do so. Neutral public schools should not endorse any religion or ideology, but must provide objective information about religions and philosophical convictions. Teachers at public schools should teach on a neutral basis; they have the right to express their opinion or belief, but they should not indoctrinate their students. Schools should provide fundamental information on ethics. Denominational religious education was compulsory at public schools until 1949. After the communist takeover, religious education became an optional subject and a restrictive administrative practice as well the systematic harassment of parents resulted in a reduced proportion of children who received religious education at school. From 1990, the obstacles for religious education were removed and the co-operation of schools and churches reinforced to provide for adequate space and time for religious education and, in many areas, the schools have become the place of religious education again. Churches could freely organize religious education and instruction on the demand of parents. An important element of the recent changes in the education system is the introduction of ethics in the curriculum. Since 2012 children participating in religious education at schools do not take part in the ethics classes, in other words, religious education has become a compulsory elective subject instead of an optional subject.14 Religious education at public schools can only be offered by recognised churches and not by religious associations.15 Religious instruction in public schools is delivered by ecclesiastical entities, not by the school. The instruction is not a part of the school curriculum, the teacher of religion is not a member of the school staff, and grades are not given in school reports only participation is recorded. Churches decide freely on the content of the religious classes as well as on their supervision. Teachers of religion are in church employment; however, the state provides funding for the churches to pay the teachers. The school has only to provide an appropriate time for religious classes as well as teaching facilities. Churches are free to expound their beliefs during the religious classes: they do not have to restrict themselves to providing neutral education, merely giving information about religion, as do the public schools. Religious education is not part of the public school’s task; it is a form of intro- 14 Act XCX/2011. § 35. 15 Act CCVI/2011. § 21. State and Church in Hungary 373 duction into the life and doctrines of a given religious community at the request of students and parents. Private schools are differentiated from church-run schools. They can make denominational religious education compulsory but also can exclude religious education and enrol all the students for ethics classes. Parents pay tuition to private schools if the owner does not enter into a contractual arrangement with the state.16 Church run schools Parents with the constitutional right to decide on the education of their children also have the right to set up non-neutral schools. ‘Church schools’ are classed as neither public nor private. After public schools run by the municipalities, most schools are run by churches: At the level of secondary education, the proportion of church schools is over 20%. In Hungary, all schools, including church-run schools, are bound by a national core curriculum. This, however, allows each school to establish its own teaching programme. Church schools are not bound by the principle of ideological neutrality. This means that such schools can identify themselves with a particular religion. Religious symbols are allowed on the building as well as in the classrooms. Religious instruction may be a compulsory part of the curriculum (in this case ethics is not a compulsory subject),17 and the marks gained are shown in the school report. The church schools are allowed to select not only their staff but also their pupils according to religious principles – none of this is allowed in public schools. Church-run schools, however, can be obliged to enrol a minimum number of students from the local municipality. The State budget grants equal funding for church schools formally maintained by the church, but with the State providing the running costs. The enjoyment of public subsidies, however, precludes the right to collect tuition fees. 2. 16 Act XCX/2011. § 31(2.). 17 Act CXC/2011. § 32(1)j.). Balázs Schanda 374 Theology The training of religious personnel and the training in theology have been almost identical until recent times. During certain periods, public authorities showed interest in the formation of the clergy; at other periods, higher education was an issue of state concern, whereas the state sometimes seemed to be interested in both, universities and the future clergy. The first university in Hungary having a Catholic faculty of theology was set up by Cardinal Péter Pázmány, archbishop of Esztergom (as his seat was under Ottoman occupation, he resided in the northern part of his archdiocese in Trnava, now in day Slovakia) in 1635. The university came under state control during the reign of Maria Theresa in 1769 and moved to its present seat in (Buda)Pest in 1777. In 1950, the Faculty of Theology was detached from the University and entrusted to the Bishops’ Conference. Discussions on an eventual re-integration in the state university were rejected both for constitutional reasons (the interpretation of separation seemed to rule out mixed – non-neutral – public institutions), and by the Church that decided to launch a Catholic University based on the Faculty of Theology in 1992. It has to be added that a significant number of young clergymen receive training abroad, especially at the pontifical faculties in Rome. The most important Reformed (Calvinist) Theological College was founded in 1538 in Debrecen and became incorporated to a state university in 1912. Since 1949, it is independent of the state university, maintained by the Church District of the Reformed Church. Training in Reformed Theology was provided at schools from the 1530s in Sárospatak and Pápa. The Reformed Theological Academy in Budapest was launched in 1855. The Lutheran faculty of Sopron (founded in 1557) was incorporated in 1923 in the University of Pécs. In 1950, it was detached from the university and a year later the Lutheran Academy of Theology moved to Budapest where it functions nowadays as the Lutheran University of Theology. The Jewish Rabbinical Seminary in Budapest was set up by government decision in 1877. Since 1999 the institution functions as the ‘Rabbinical Seminary – Jewish University’, where not only rabbis and cantors receive training but courses in Judaism are offered too. Church institutions can be acknowledged by the state to issue recognised degrees. The state acknowledgement does not change the purely ecclesiastical nature of church institutions. A list of the theological institutions – extended several times – is annexed to the Act on higher education. These institutional arrangements do not mean that in reality church institutions must be cut off from other institutions of higher education. This is determined by local arrangements between church institutions and uni- 3. State and Church in Hungary 375 versities. In some university cities, the church institution and the public university have formed a close co-operation with a number of students who frequent courses in both institutions. Religious training and training in theology can be provided by church-run institutions of higher education. The law on higher education requires the accreditation of theological institutions, but the content of theological courses is not subject to scrutiny, only material conditions (like the existence and the quality of the library) are controlled.18 Degrees are recognized by the State. Professors of church universities are appointed by the President of the Republic as are other university professors, but in their case the nomination is not made exclusively by the Minister of Education but jointly by the maintaining church and the Minister. Media Churches may provide mass media as may other legal entities. The distribution of frequencies is done by the National Media and Infocommunications Authority. In fact, there are a few local radio stations run by the Catholic Church and a national one, too. Broadcasting contracts are concluded between the Authority and the broadcaster selected in a tender procedure. The broadcaster pays a fee and is bound by its commitments made at the tender. Violations are sanctioned by the Authority. There are both religious and church programmes in the public media: religious programmes are on general religion (on a neutral base), whereas church programmes reflect the beliefs of their respective community. The public media allocate airtime (not to be interrupted by commercials) to eight religious communities based on agreements signed with these communities. The board of the public media (the Hungarian Television, the ‘Duna’ Television and the Hungarian Radio) has four seats for the four major religious communities of the country.19 It has no competencies with regard to programming, but it is the supervisor of the public media. Print media is not bound by detailed regulations as is electronic media. Newspapers and periodicals have to be registered with the Media Authority. Churches and religious organisations publish a wide selection of print media. The Internet has become a powerful forum of religious presence. 4. 18 Act CCIV/2011. § 91(7.). 19 Act CLXXXV/2010. Annex 1. Balázs Schanda 376 Cultural heritage Over 20% of buildings under architectural heritage protection belong to churches. The maintenance and the protection of national monuments is the responsibility of the owner.20 Observing the complex rules related to protected monuments is a heavy burden on owners. Due to the dissolution of religious orders in 1950, the continuity of historical monasteries was interrupted for at least four decades. The only important exception was the famous Benedictine abbey, Pannonhalma. Museums and archives of churches may acquire the status of quasi-public institutions.21 This status gives access to additional state funds; these, however, do not cover the burden of employing additional qualified staff and providing access to researchers and visitors. Churches (like other entities) can also seek public status for their libraries, but in that case they have to be accessible, have to employ a qualified librarian, have to have appropriate opening hours and facilities, and provide services free of charge.22 Churches in general do not have the financial means to play a determinative role in sponsoring arts. In some rural areas parish communities play an important role in preserving folklore traditions, while many urban congregations are innovative in organising a wide range of cultural events, exhibitions, concerts, and festivals. Many local congregations have a choir. Labour Law within the Religious Communities Labour law as well as tax law developed the term ‘ecclesiastical persons’, who have a special ‘ecclesiastical working relationship’ with their respective church. Ecclesiastical persons can be engaged in ecclesiastical service that is not employment in the sense of state law, but a relationship exclusively determined by internal church law. The new law on religious communities expressly provides for the special status of ecclesiastical persons: ‘Church personnel shall be natural persons who are defined in accordance with the internal rules of the legally recognized church, are in the service of the ecclesiastical legal entity and perform their service in specific church 5. VIII. 20 Act LXIV/2001 § 41. 21 Act LXIV/2001. § 7 3. 22 Act CXL/1997. § 54(4.). State and Church in Hungary 377 service relationship, in employment relationship or in another legal relationship.’23 As churches run a significant part of the education, health care, and social care systems they are notable factors of the labour market. Work for churches can be carried out under four different legal regimes: (a) Ecclesiastical persons can be employed in ecclesiastical service that is not employment in the sense of state law, but a relationship exclusively determined by internal church law. A priest or a pastor would usually work in ecclesiastical service, but churches may also choose to employ him under another legal regime – and they are free to classify persons in their service as ‘ecclesiastical persons’. (b) Employees of church institutions in genuine religious offices are usually lay persons, such as cantors or catechists. They usually stay in a regular work relationship with a church legal entity and, in their case, the equal treatment considerations with regard to discrimination on the basis of religion would not apply to them. (c) Employees of church institutions in secular offices would be a third category. This is the category where equal treatment issues raise challenges both in theory and in practice. The intention of the lawmaker was probably not grant exemption from the principle of equal treatment for employees like teachers of secular subjects at church-run schools, staff of church-run institutions of social care, etc.24 (d) Other types of contracts may also engage people in the service of religious organisations, mainly contracts under civil law. For example, at a construction or restoration project, it is the contractor who will employ a number of workers to carry out the actual work. So, the painter painting the church does not enter into any kind of contract with the church. Employees of church-run institutions, like schools, hospitals, and institutions of social care, are (unlike their counterparts in public institutions) not public employees, but fall under general labour law. For this type of employees, a status similar to that of public servants is ensured. The employment relationship of persons employed in church-run schools, hospitals, etc., must conform to public employment rules with respect to wages, 23 Act CCVI/2011. § 13(1.). 24 Act CXXV/2003. Balázs Schanda 378 working time, and rest periods.25 Salaries, holidays, etc., are not subject to the discretion of the employing entity – protecting, in a way, both of them. Legal Status of Clergy and Members of Religious Orders Clergy (“ecclesiastical persons”) enjoy some special rights e.g. vocational secrets, personal income tax, national service. Clergy and members of religious orders may be employed in a special ecclesiastical service, so avoiding the normal requirements of labour law. The relationship between the diocese and a priest or between a religious order and its member is governed exclusively by canon law. Social security also applies to ecclesiastical persons. In their case, the respective church agrees with the National Pension Insurance Agency on the pension insurance of its clergy. Usually churches insure clergy based on the minimum wages, including the compulsory private pension insurance for new employees (this, in the case of a member of a religious order, is in fact theoretical). Finances of Religious Communities Property issues Mainstream religious communities – especially the Catholic Church – used to own vast properties, especially land and forests, until 1945. Endowments used to secure the operation of ecclesiastical institutions, on the one hand; on the other hand, patronage played a special role in Hungary: even between World War I and II about two-thirds of the Catholic parishes had a patron (a landowner, an ecclesiastical entity, or, often, an urban municipality or a company) covering the expenses of the church building and the clergy. The Communist takeover after World War II brought a radical change: almost all church property was confiscated, education and health care nationalised, practically only church and parish buildings and a very limited number of church institutions remained in the hands of churches. With the collapse of the Communist regime, it was evident that churches were in need of some kind of public assistance to be able to function, IX. X. 1. 25 Act CCVI. § 20(2.). State and Church in Hungary 379 but state control had to be overcome once and for all. In Hungary there was no re-privatisation after the transition. Nationalisation was regarded as unjust, harmful, and also illegal, but not invalid. The economic situation, which the ‘real socialism’ left behind, however, did not enable a full restitution or a full compensation. Private individuals who lost their property got partial compensation receiving compensation vouchers that they could use in the course of the privatisation process. Churches were the only juridical persons compensated on the basis of a special law. Based upon the Act on the Settlement of Ownership of Former Real Properties of the Churches of 1991, churches could reclaim buildings (together with the site of the building) expropriated after 1948 and originally used for specific purposes, in so far as these properties were – at the time the Act came into force – the property of the state or a local municipality.26 Restitution was meant to be partial as the purposes defined by the Act did not cover economic utilisation (e.g., agricultural properties, land, vineyards, forests, apartment houses, press were excluded), but only property serving a wide range of religious and non-profit activities like religious life, education, culture, health care institutions were covered by restitution. The law affected thirteen churches27 filing about 6,000 claims that fell under the Act. Following the agreement on financial issues with the Holy See signed on 20 June 1997,28 a new law passed in 1997 provided for the possibility of capitalising the value of property not restored to the church to form a virtual fund that granted a sum every year to the church concerned.29 The Holy See followed a highly modest approach in property issues: pastoral considerations and the need to secure the continuing operation of the Church were at the forefront instead of restitutio in integrum. 26 Act XXXII/1991. 27 These were the Catholic Church, the Reformed Church, the Lutheran Church, the Jewish Communities (29 properties), the Serbian Orthodox Church (21 properties), the Romanian Orthodox Church (7 properties), the Hungarian Orthodox Church under the Moscow Patriarchate (3 properties), the Baptist Church (4 properties), the Unitarian Church (1 property), the Methodist Church (2 properties), the Adventist Church (2 properties), the Salvation Army (1 property). The number of property claims is not necessarily proportionate to their value as some communities used to own (and now claim) more small properties, whereas others had large buildings. The Catholic Church had over 2,500 claims, the Reformed Church over 1,500, the Lutheran Church close to 500. Data taken from the Secretariat for Church Relations at the Ministry of Education and Culture, http://www. nefmi.gov.hu/egyhaz/egyhazi-ingatlanrendezes/egyhazi (30 March, 2018). 28 Promulgated by Act LXX/1999, AAS (1998) 330–340. 29 Act CXXIV/1997. Balázs Schanda 380 Instead of all claims being pressed, a fund was set up that provides an annuity to the church. Besides the agreement with the Holy See, the Government concluded similar agreements with the Alliance of Jewish Communities, the Lutheran Church, the Reformed Church, the Baptist Church, and the Serbian Orthodox Diocese that opted for annuity instead of taking some of their buildings back. The claims falling under the Act could be settled in different ways: (a) direct agreement between the owner (the municipality) and the church on the transfer of the property; (b) transfer of the building by Government decree, with compensation paid to the owner; over 2,000 properties were dealt with in this way, partly restoring the buildings to the churches, partly the churches; (c) transfer of property claims to a virtual fund that pays a fixed annuity without limit Tax assignment Since 1998, a major form of public funding is a tax assignment system, as income tax payers were given the right to assign 1% of their tax to a religious community of their choice or to alternative public funds. Beginning with the tax return for the year 1997 (due in March 1998), income tax payers could direct that 1% of their income tax be paid to a church of their choice or to a public fund (another 1% could be directed to NGOs, museums, theatres, and other public institutions).30 The denominational proportions did not bring big surprises: over 60% of the declarations are made for the benefit of the Catholic Church, about 20% for the Reformed Church. According to the proportion of the declarations, the Faith Church (a charismatic-evangelical congregation) has become the fourth biggest religious community, followed by the Jewish Community, and the Baptist Church. As Hungary introduced a flat tax system from 2011 with considerable family allowances, the role of income tax has reduced. The state supplements the sum assigned to churches by taxpayers based on the denominational proportion of assignments, so that 1% of income tax is effectively distributed among churches even if only less than a half of the taxpayers make use of the possibility. 2. 30 Act CXXIX/1996. State and Church in Hungary 381 Public funds for religious activities Churches are exempt of various taxes and fees. For example, ecclesiastical legal entities do not have to pay local taxes31 and fees32 when purchasing or inheriting real estate or become parties to civil or administrative procedures. The stipend given by private individuals to Church persons for Church services is free of tax.33 In the agreement with the Holy See on financial issues the Parties agreed that the ‘scope of benefits and exemptions (…) shall not be narrowed down by the Hungarian State without the consent of the Church’. The state contributes to some church activities, like restoration projects of architectural heritage, to a limited extent, based on individual decisions of Parliament and the Government. Local authorities may contribute to reconstruction projects, may sponsor expenses like the illumination of the church building, and often provide the building plot for new church buildings free of charge. Beginning with 2002, churches receive a special fund to contribute to the salary of their staff (clergy or other full time church employees) serving and living in rural settlements of less than 5,000 inhabitants. With this contribution, the Government acknowledges that churches have a vital role in keeping the rural areas alive. Religious instruction is sponsored by the state. The churches have to submit the number of religious classes they run to receive an amount per class. The funding of religious instruction was not included in the agreement with the Holy See, but the agreements concluded between the Government and Protestant Churches in 1998 contain this title and finally the 2013 modification of the agreement with the Holy See provided for the funding of religious education. It is not the school that pays for the religious instruction, and the teacher is employed by his church (i.e., using public funds to cover his salary). The new law on religious freedom expressly provides for the funding of religious education upon agreements concluded with churches.34 Institutions providing higher education in theology can be accredited by the National Board of Accreditation to become entitled to issue degrees acknowledged by the state, but they are maintained by the churches in- 3. 31 Act C/1990. § 3(5.). 32 Act XCIII/1990. § 5(1)e. 33 Attachment 4.8. to Act CXVII/1995. This covers mass stipends according to can. 945 of the CIC. 34 Act CCVI/2011. § 21(3.). Balázs Schanda 382 stead of being integrated in state universities. The church maintaining the institution can enter an agreement with the state to get the training funded (in the case of university-level training, the funding includes the funding of the teacher training quota in arts faculties). In Hungary army chaplains qualify as officers, prison chaplains as public employees. This way the personnel of the four ‘mainstream’ religious communities (Catholics, Calvinists, Lutherans, and Jews) in the army and the prisons are directly paid by state organs. Ministers of other denominations have free access to military and penitentiary facilities, but receive no public salaries. The major part of church activities is not covered by public funds. ‘The assets of churches (…) shall be composed primarily of the donations and other contributions …’35 Churches are free to raise funds. Public authorities are not entitled to obtain any kind of information on these revenues,36 that is, churches manage and administer these funds freely. Foreign aid played a significant role in financing the Church during Communist rule. Since the fall of Communist regime, the role and the amount of foreign aid is shrinking. Various foundations and since its establishment Renovabis, however, still play an important role in funding concrete projects. Public funds for public activities of religious communities Education, health, and social care are considered state duties. Religious communities are free to perform any public activity that is not reserved to the state. Religious communities have regained their freedom with the collapse of the Communist regime, and so may have a more important role in serving society, opening schools, institutions of higher education, health care, and social care. If a religious entity provides public services on demand to the citizens, it is entitled to the same subsidy as the state gives to public institutions. Church-run museums, archives, and libraries may receive public funding if they fulfil certain criteria.37 Restoration of church architectural heritage can be subsidized. 4. 35 Act CCVI/2011. § 19/A.(1.). 36 E.g., decision of the synod of the Archdiocese Esztergom-Budapest § 61. (1994.). 37 Act CXXIV/1997. § 7 (1.). State and Church in Hungary 383 The principle of equal funding was also reinforced by the agreement with the Holy See concluded in 199738 as well as the agreements concluded between the Government and the mainstream Protestant denominations in 1998. Also, the law on church finances of the year 1997 restates the principle. It is important to note that these subsidies are due to the church maintaining the institution and not directly to the institution itself. Religious Assistance in Public Institutions After decades of interruption the army chaplaincy was set up again in 1994.39 The chaplaincy is maintained by the state, and army chaplains are given military ranks. The Chaplaincy is not regarded as an unconstitutional entanglement as it has not become an institutional part of the military, but instead works alongside it. In creating the Chaplaincy, the state had the right to single out the four ‘historical’ religions, all of which had a minimum number of adherents. Equality does not require the provision of a chaplain from every church, especially if there are no members of that church in the military, either because of its small size or because of conscientious objection. Smaller communities certainly have the same right to exercise their religion on military premises, as do the Catholic Church, the Reformed Church, the Lutheran Church, and the Alliance of Jewish Congregations. In 2000, a chaplaincy for the prisons was established for the Catholic, the Reformed, and the Lutheran churches, as well as for the Jewish community. This institution is similar to the Army Chaplaincy. All registered religions have the right to pursue religious activities in the prisons on the request of the inmates; however, the four largest religions are institutionalised, and their pastors can become public servants, paid by the prisons as their own staff. To qualify, these chaplains must have permission from their churches, and they must comply with the rules governing of civil servants.40 The pastoral care of the sick and the elderly is an important activity of religious communities. Ministers have access to hospitals and other social XI. 38 The principle of the equal funding of public activities is in full compliance with Canon 797 of the Code of Canon Law (CIC) urging in the name of the iustitia distributiva the truly free choice of schools for parents. 39 On the Army Chaplain’s Service, Government Decree No. 61/1994 (IV.20) Korm. 40 8/2017. (VI. 13.) IM. Balázs Schanda 384 institutions that are expected to co-operate in order to facilitate religious practice. Matrimonial and Family Law Religious and civil marriage laws have been separate in Hungary since 1895.41 Civil marriage law does not know religious impediments. Consequently, a person under an ecclesiastical ban on marriage could enter into a civil marriage without any kind of legal difficulty. Since 1962, the separation of church and state has the consequence that the civil wedding does not have to precede the church wedding, so one can enter a marriage in church without any consequences under the state law (in state law such couples may qualify as non-marital cohabitants). Criminal Law and Religious Communities Blasphemy – when causing public scandal – used to be a criminal offence under the first criminal code (1878).42 The provision, however, was abolished in the early years of the Communist regime. At the moment, there is no offence like blasphemy. Since 1992, mere defamation does not qualify as a criminal offence any more as the Constitutional Court has found that this would be a disproportionate limitation of the freedom of expression.43 The Criminal Code has a provision on the ‘Violation of the Freedom of Conscience and Religion’ that was incorporated into the Code by Act IV/ 1990. According to that provision: Whoever a. restricts another person by violence or by threats in his freedom of conscience, b. prevents another person from freely exercising his religion by violence or by threats, commits a crime, and is punishable by imprisonment extending to three years.44 XII. XIII. 41 Act XXXI/1894. 42 Act V/1878. § 190. 43 Decision 30/1992. (V. 26.) AB. 44 Act C/2012. § 215 (Criminal Code.). State and Church in Hungary 385 The abuse of someone because of his or her actual or assumed membership of a national, ethnic, race, or religious group is punishable by five years' imprisonment.45 As a misdemeanour, the ‘Violation of the Right of Worship’ is penalised. It is committed by: ‘Whoever causes a public scandal in a church or on premises designated for the purposes of religious ceremonies or desecrates the object of religious worship or an object used for conducting the ceremonies on or outside the premises designated for the purposes of ceremonies.’46 In the case of theft, punishment is higher when an object stolen, albeit of minor value is one designated for worship, or is a religious or consecrated object, or is stolen from a consecrated property.47 In compliance to the Genocide Convention, genocide is penalised. along with national, ethnic, and racial groups, religious groups are protected against crimes aimed at the exterminated the group.48 Following disturbing developments in criminality, the rise of violence against church buildings and churchmen, the clergy were recognised as persons ‘pursuing public tasks’.49 This means a higher penalty for the perpetrator of murder and robbery against a member of the clergy, as well as punishment for those attacking a person pursuing a public task (relating to his public task). The clergy enjoys a status equal in this respect to that of teachers, medical staff, public transport workers, or firemen. Major Developments and Trends The two-tier system of religious communities that has been (re-)introduced in 2011 has brought a higher emphasis on the co-operation between mainstream churches and the state. Traditional religious communities have not regained their pre-war social status, however their role in education and social care has become essential. The question of cultural identity seems to be a central issue especially in an era when many have just a vague reli- XIV. 45 Act C/2012. § 216. 46 Act II/2012. § 188. 47 Act C/2012. § 370. 48 Act C/2012. § 124. 49 Act C/2012. § 459(1)12d.). Balázs Schanda 386 gious identity. This identity is also expressed by the preamble of the new constitution (2011) that expressly refers to the Christian heritage.50 XV. Bibliography Ádám, Antal: Bölcselet, vallás, állami egyházjog. Pécs: Dialóg Campus 2007. Boleratzky, Lóránd. A magyar evangélikus egyházjog alapjai és jogforrásai. Budapest. Vol. 1 & 2 (1991 & 1998). Rixer, Ádám: Religion and Law – Vallás és jog, Budapest: Károli Gáspár Református Egyetem Állam- és Jogtudományi Kara, 2010. Schanda, Balázs, Állami egyházjog (Ecclesiastical law), Budapest 2013. Szathmáry, Béla. Magyar egyházjog. Budapest: Századvég, 2004, 507. Szuromi, Szabolcs Anzelm: Development of Church and State relations in Central and Eastern Europe, mirrored by the recent two decades. Anuario de Derecho Eclesiástico del Estado 28: p. x. (2012) Szuromi, Szabolcs – Ferenczy, Rita. Kérdések az állami egyházjog köréből. Budapest: Szent István Társulat 2014. Schanda, Balázs: Kirche und Staat in Ungarn. In: Mückl, Stefan (ed.) Kirche und Staat in Mittel- und Osteuropa: Die Entwicklung des Staat-Kirche-Verhältnisses in den Transformationsländern Mittel- und Osteuropas seit 1990. Berlin: Duncker und Humblot, 2017. pp. 165-188. (Staatskirchenrechtliche Abhandlungen; 56/I.) Uitz, Renáta: The Pendulum of Church-State Relations in Hungary. In: Peter Cumper, Tom Lewis (eds.), Religion, Rights and Secular Society, European Perspectives. Cheltenham: Edward Elgar Publishing, 2012. pp. 189-214. 50 Horkay-Hörcher, Ferenc: The National Avowal, In: Schanda Balázs, Varga Zs András, Csink Lóránt (eds.), The basic law of Hungary: A First Commentary. Dublin: Clarus Press, 2012. pp. 25. State and Church in Hungary 387

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Abstract

Churches as essential components of European culture have major significance for European integration. A Europe, bound by common constitutional traditions, cultures and traditions of its Member States, their national identity and the principle of subsidiarity, will have to respect the deep-rooted systems of State and Church relationships in its Member States.

The volume presents in its second edition a broad comparison of different systems of State and Church relationships in the Member States of the European Union. It includes the new Member States and gives an account of the new developments throughout Europe. The volume shows the implications of European integration on the position of the Churches. It is of interest to all working in the field of State-Church relationship as well as to public and church institutions.

The volume has been produced in association with the European Consortium for State-Church Research. The authors are experts in the field from the different Member States of the European Union, presenting the relevant systems of their home countries. The editor is professor for public law at the University of Trier and head of the Research Centre for European Constitutional Law.

Zusammenfassung

Im Prozess der europäischen Einigung kommt den Kirchen als wesentlicher Bestandteil der europäischen Kultur eine besondere Bedeutung zu. Ein Europa, das den gemeinsamen Verfassungsüberlieferungen, den Traditionen und Kulturen der Mitgliedstaaten, ihrer nationalen Identität und dem Grundsatz der Subsidiarität verpflichtet ist, wird das gewachsene Staatskirchenrecht seiner Mitgliedstaaten zu respektieren haben.

Die 2. Auflage bietet einen umfassenden Vergleich der unterschiedlichen staatskirchenrechtlichen Systeme in den Mitgliedstaaten der Europäischen Union. Der Sammelband berücksichtigt auch die neuen Mitgliedsländer und beschreibt europaweite Entwicklungen. Er macht deutlich, wie sich die europäische Integration auf die Stellung der Kirchen auswirkt. Das Werk ist für jeden, der im Staatskirchenrecht arbeitet, aber auch für staatliche und kirchliche Institutionen von Interesse.

Das Buch ist in Zusammenarbeit mit dem Europäischen Konsortium für Staat-Kirche-Forschung entstanden. Die Autoren, führende Staatskirchenrechtler aus den verschiedenen Mitgliedstaaten der EU, erläutern die religionsverfassungsrechtlichen Systeme ihrer Heimatländer. Der Herausgeber ist Professor für öffentliches Recht an der Universität Trier und Leiter der Forschungsstelle für Europäisches Verfassungsrecht.