Content

Lovro Šturm, Blaž Ivanc, State and Church in Slovenia in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 539 - 562

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5, https://doi.org/10.5771/9783845296265-539

Bibliographic information
State and Church in Slovenia Lovro Šturm and Blaž Ivanc Social Facts In January 2018, Slovenia had a population of 2.066.880. In all, there are 51 registered churches and other religious communities. The 2002 Census data on religious and denominational structure of the population of Slovenia show that Catholicism is a major religion in Slovenia: Slovenian religious demographics according to the 2002 census Confession Percentage of Population Catholics 57.80 % Muslims 2.40 % Orthodox Christians 2.30 % Protestants 0.80 % Other religions 0.30 % Believers without specific religion 3.50 % Atheists 10.10 % Response denied 15.70 % No response known 7.10 % Because a much higher number (15.70 %) of respondents refused to provide an answer to a facultative question on their religious affiliation than during the 1991 Census (4.2%), the statistical data can not provide a reliable image of religious affiliation, especially concerning the numer of adherents of the (Roman) Catholic Church.1 I. Table1: 1 According to the Annual report of the Catholic Church in Slovenia for the year 2017 the total number of its belivers in the year 2016 was 1,523,113 (73.78% of the total population). Retrieved May 2, 2018, from http://katoliska-cerkev.si/media/dat oteke/Dokumenti%20in%20publikacije/LETNO%20POROC%CC%8CILO%20KA TOLIS%CC%8CKE%20CERKVE%20V%20SLOVENIJI%202017_SPLET.pdf. 539 Historical Background Within the boundaries of the Habsburg Empire, which included Slovenia, Catholicism was for a long time considered to be the state church. By the end of the 18th century, the state had become secularised (Josephinism), but the Church retained a special position in society long after that – educational and charitable activities, for example, have remained almost completely in its hands. After World War II, the Catholic Church in the Socialist Federal Republic of Yugoslavia (hereinafter: the SFRY) was heavily persecuted by the State, and relations between Church and State did not improve until the Holy See and Yugoslavia re-established diplomatic relations in 1966. Despite the declared principle of separation between church and state, from 1945 to 1990 every church in Slovenia was actually under strict state control. The legal status and the actual position of religious communities in the former Yugoslav communist régime were not solely determined by generally known and published legal rules. They were, in fact, primarily determined – especially in the case of the Catholic Church – by strictly confidential legal rules which, together with other confidential regulations, formed a parallel secret legal system. For instance, National Security Service documents from 1967, 1970, 1982, and 1985 dealt extensively with the Catholic Church. The common idea binding these secret internal rules together is that the Catholic Church is a "permanent internal enemy" that, after the signed protocol between the SFRY and the Holy See, renounced the idea of directly opposing socialism, yet also "opened an ideological confrontation with then current socio-political conceptions".2 Even though free profession of religion was constitutionally guaranteed, the Catholic Church and other religions were not allowed to play a part in public life. From 1945, the former Yugoslavia prohibited the operation of any kind of private school. Many private schools that had operated before this time were nationalised at the time of prohibition. This prohibition lasted until 1991 in the territory of present day Slovenia. Religious communities could establish religious schools only to train ordinands. Diplomas from these religious schools were not publicly recognised. Between 1945 and 1991 religious communities were forbidden to engage in "activities of a general or social significance." Forbidden activities included educational activities. II. 2 see OdlUS VI, 69, p. 390. Lovro Šturm and Blaž Ivanc 540 Atheism was the privileged ideology in Slovenia for almost half a century and was encouraged throughout the educational system. The Republic of Slovenia has become a sovereign state in June 1991, when it proclaimed its independence and commitment to the principles of democracy, pluralism, tolerance, the rule of law and full observance and promotion of human rights and fundamental freedoms. In 2004, Slovenia became a member state of the European Union. Legal Sources The Constitution of the Republic of Slovenia (adopted in December 1991) regulates in Article 7 the relations between the state and religious communities. The legal position of religious communities is based on the following fundamental principles: (1) separation of the state and religious communities, (2) equality of religious communities and (3) free activity of religious communities within the legal order. In the Slovenian legal system, freedom of conscience and belief is provided for under Article 41 of the Constitution and is entitled "freedom of conscience." This provision broadly protects the freedom of self-definition; it refers not only to religious beliefs but also to moral, philosophical and other views of life. The Article comprises three provisions: the assurance of freedom of conscience or the positive entitlement; the right for a person not to have any religious or other beliefs, or to not manifest such, or the negative entitlement; and the right of parents to determine their children’'s upbringing in the area of freedom of conscience. The first provision protects the particular right of every individual to profess freely his or her religion and other self-definitions in his or her private and public life. The Constitution does not define in more detail which activities are embraced by freedom of conscience. The individual’s freedom of conscience implies both the positive entitlement – the opportunity for individuals to have, change and manifest their optional religious and other beliefs – and also the negative entitlement – the right for a person not to have any religious or other beliefs, or to not manifest them. The Constitution formulates this negative entitlement in such a manner that no individual is obliged to admit to religious or other beliefs. As a special aspect of freedom of conscience, the Constitution provides for the right of parents to give their children a moral and religious upbringing in accordance with their beliefs. Religious and moral guidance given to a child must be appropriate to his or her age and maturity. The III. State and Church in Slovenia 541 guidance must also be consistent with the child's free conscience and religious and other beliefs or convictions. According to the explicit provisions of Article 16 of the Constitution, freedom of conscience is one of seven special constitutional rights and freedoms that can never be temporarily suspended, not even in war. The right of conscientious objection is also protected by the Constitution under Article 46. This right is permitted in such circumstances as are determined by statute, to the extent that the rights and freedoms of others are not adversely affected. Conscientious objection is allowed only in two areas: state defence and health care. More precisely, citizens who, because of their religious, philosophical or humanitarian beliefs, are not willing to perform military duty are assured the opportunity of participating in the defence of the state in some other manner. In deciding whether to accept claims of conscientious objection, one of the factors that must be considered is religious belief. The right to conscientious objection is given to everyone who is obliged to participate in performing military duties: recruits, soldiers during their military service, and commissioned officers. Physicians may refuse to operate on patients, except in emergencies, if the operation is contrary to their conscience and to the international rules of medical ethics. In order to exercise this right, they must first inform the medical facility concerned of their objection. That facility must respect their decision and, at the same time, ensure that its patients can exercise their health care rights.3 Further Constitutional provisions regulate not only the relations between individuals and the state but also the religious relations among individuals. Under the provision of Article 63, inciting religious discrimination and inflaming religious hatred and intolerance are prohibited. The provisions of Article 14, as a reflection of the principle of equality before the law, prohibit discrimination on the basis of religion or other belief. The violation of this principle of equality and the prohibition of discrimination in the area of freedom of religion have been criminalised under the Penal Code 2008 (hereinafter: the PC) of the Republic of Slovenia because they violate human rights and freedoms. The Slovenian legal system addresses the churches and religious communities only in general; it does not include statutes regulating individual churches or religious communities. State-church agreements are important source of Slovene law on religion. The Government of Slovenia signed mu- 3 These rights are further detailed in the Health Services Act (1992) and in the Patients’ Rights Act (2008). Lovro Šturm and Blaž Ivanc 542 tual agreements on legal questions with the Catholic Church in 1999 and the Protestant Church in 2000, followed by agreements with the Serbian Orthodox Church (2004), the Seventh Day Adventist Church (2004), the Islamic Religious Community in Slovenia (2007), and the Buddhist Congregation Dharmaling (2008). The first international agreement between the Government of Slovenia and the Holy See was signed in 2001. The Agreement was under constitutional review till 19 November 2003 when the Constitutional Court declared it in accordance with the Constitution.4 In 2007, the National Assembly passed the Religious Freedom Act (hereinafter: the RF Act)5 that provides more detailed regulations concerning the legal position of churches and religious communities. The RF Act replaced the Legal Status of Religious Communities Act 1976 (hereinafter: the LSRC Act) that considered religious freedom to be an individual's private concern only. Differently and in accordance with the democratic Constitution of 1991, the RF Act provides that religious freedom shall be inviolable and guaranteed not only in private life but also in public life (Art. 2). Thus, the modern Slovene legal order provides for the state neutrality and puts an end to the promotion of atheism as the state ideology that was supported by the former Socialist Constitution.6 Accordingly, the statute first provides for the positive aspect of religious freedom that encompasses the right to the free choice or acceptance of a religion, freedom of expressing religious belief and refusal of its expression and freedom for everybody to express, either by himself/herself or together with other people, privately or publicly, his/her religious belief through religious service, religious instructions, practice and religious rites or in some other way (RF Act Art. 29 para. 2). The negative aspect of religious freedom is assured under the provision of Art. 29 para. 3 RF Act that determines that nobody may be forced to become or remain a member of the church or some other religious community, to participate or not participate in the religious service, religious rites and other forms of religious expression. In addition, the RF Act contains a general assurance of the freedom of conscientious objection (RF Act Art. 29 para. 4). The RF Act provides that the state has a positive and general obligation to guarantee smooth exercise of religious freedom (RF Act Art. 29 para. 5). In addition to the RF Act, a series of statutes dealing 4 Decision No. Rm-1/02-21 dated 19 Nov 2003. 5 Official Gazette RS, Nos. 14/07, 46/10 – odl. US, 40/12 – ZUJF and 100/13. 6 See Constitution of the Socialist Federative Republic of Yugoslavia, Part V (February 1974), which provided for upbringing and education to be based on the achievements of contemporary science and especially on Marxism. State and Church in Slovenia 543 with different areas of law also defines the legal position of religious communities in the Republic of Slovenia.7 The Constitution (Art. 63) and the FR Act (Art. 3) prohibit any incitement to religious discrimination, inflaming of religious hatred and intolerance, as well as any direct or indirect discrimination on the basis of religious belief, expression or exercise of such belief. Discrimination on the basis of religious belief may constitute a criminal offence under Article 131 Penal Code 2008.8 Public incitement to hatred, violence or intolerance is punishable under Art. 297 of the PC 2008.9 7 In their provisions, these Statutes explicitly mention religious communities, and protect the freedom of religious belief, e.g. some protect certain religious values (The Media Act, The Film Fund Act, The Penal Code, The Military Service Act, The Health Activities Act, The Patients’ Rights Act); some protect the confidential relationship between an individual and his or her confessor (The Criminal Procedure Act, The Civil Procedure Act, The General Administrative Procedure Act); some enable the implementation of freedom of religion in various areas (The Public Meetings and Performances Act, The Act on Graveyard and Burial Activities and on the Arrangement of Graveyards); some make possible and restrict the participation of religious communities in certain activities and in public life (The Act on the Organization and Financing of Child Rearing and Education, The Radio- Television of Slovenia Act, The Election Campaign Act, The Political Parties Act, The Institutes Act); some determine the special tax status of religious communities or priests (The Tax on Legal Entities' Profits, The Sales Tax Act, The Building Lands Act, The Foreign Trade Act, The Income Tax Act) and a special system for priests' insurance (The Social Protection Act, The Retirement Pension and Disability Insurance Act); and some regulate the return of property in denationalization proceedings and to religious communities (The Denationalization Act). Also relevant are all those general legal acts which apply to a generic legal entity or a legal entity under civil law. 8 Art. 171 of the PC 2008 provides that any individual who, because of a difference in religious beliefs, deprives another individual of any human right or fundamental freedom recognized by the international community or determined by the Constitution and Statutes, or who restricts such a right or freedom, or who grants someone some special right or benefit on the basis of discrimination, violates the principle of equality. A fine or imprisonment for up to one year is prescribed for such an offence. If the offence is committed by an official abusing his or her official position or the rights associated with it, the penalty is imprisonment for up to three years. 9 See more in Ivanc, 2015, p. 119. Lovro Šturm and Blaž Ivanc 544 Basic Categories of the System General Perspectives Article 7 of the Constitution and the RF Act provide for the separation of the state and religious communities, which separation has three basic elements. This provision has been interpreted as meaning that the state remains neutral to all religions, that it does not take a position concerning world views, and that it does not identify itself with any one religion or religious community (Art. 4 paras. 3 and 4 RF Act). Because of the religious or ideological neutrality of the state, there can be no state church. The second element of the principle of church-state separation stipulates that churches and religious communities are autonomous in their own sphere. While religious communities act separately from the state and are free to organise and implement their activities, they must conform to the Constitution, Statutes, and other regulations. Thus, the state must not interfere with the organisation and activities of churches and religious communities, except in cases laid down by the law (Art. 4 para. 1 RF Act). The third element of the church-state separation is a demand for equal treatment by the state of all churches and religious communities that have equal rights and obligations, each of them being independent and autonomous in its order. The RF Act not only provides that the state shall undertake to fully respect this principle in mutual relations, but it also has to cooperate with churches and religious communities for the benefit of the personal development of the individual and for the common good (Art. 4 para. 2 RF Act). Constitutional Review The Constitutional Court (hereinafter: the Court) in the period between 1991 and 2018 delivered the following important decisions regarding religious freedom: The Military Service Act was not consistent with the Constitution insofar as the Act allowed one to claim the right of conscientious objection at conscription but not at a later date10. Church organisations and institutions are bound by State law and also depend, in the matter of their legal status, upon State regulations. These IV. 1. 2. 10 OdlUS IV, 50 (Decision No. U-I-48/94 dated 25 May 1995). State and Church in Slovenia 545 bodies are treated as domestic legal entities, and are as such also governed by positive law.11 Churches and religious communities are universally beneficent institutions.12 Churches and religious communities perform an important function in society.13 After 1999 the Court dealt in more detail with the principle of the separation of the state and religious communities and initially demanded an ultra-strict separation. The prohibition under the Organisation and Financing of Education Act (hereinafter: the OFEA)14 of religious activities in private kindergartens and schools that had been granted state licenses was held to be unconstitutional.15 The Court confirmed the validity of the existing enactment that prohibited all religious activity in public kindergartens and schools. The Court's reasoning was that the rights of non-believers and the principle of the separation made it necessary in a democratic society to ban religion completely from public educational institutions, not only from the curriculum, but also from school premises. The 2001 Census Act ensured that the person counted has the freedom to declare their religion and, indeed, whether or not they are willing to answer that question at all. Collecting data by the state on the religious belief of its inhabitants is not contrary to the principle of the separation of religious communities and the state.16 In 2003, the Court declared in its interpretative decision the Agreement between the Government of Slovenia and the Holy See to be in accordance with the Constitution insofar as the court's recent interpretation of the principle of separation is obligatory for all state organs not only in implementing that agreement but also for all future agreements.17 11 OdlUS II, 23 (Decision No. U-I-25/95 dated 4 March 1993). 12 OdlUS V, 174 (Decision No. U-I-107/96 dated 5 Dec 1996). 13 OdlUS VII, 190 (Decision No. U-I-326/98 dated 14 Oct 1998). 14 Official Gazette RS Nos. 16/07 –oficially consolidated text, 36/08, 58/09, 64/09 – popr., 65/09 – popr., 20/11, 40/12 – ZUJF, 57/12 – ZPCP-2D, 47/15, 46/16, 49/16 – popr. and 25/17 – ZVaj. 15 OdlUS X, 192 (Decision No.U-I-68/98 dated 22 Nov 2001). 16 OdlUS XI, 25 (Decision No. U-I-92/01 dated 28 Feb 2002). 17 Decision No. Rm-1/02-21 dated 19 Nov 2003. Lovro Šturm and Blaž Ivanc 546 The Court annulled the Ljubljana local community resolution calling a referendum that could prevent the building of a mosque at the planned location, because it has interfered with the right to freely profess a religion.18 The Court found no violations of the Constitution when reviewing the legislation that prevented the return of the entire island of Bled to the local parish of the Catholic Church. However, the claimant filed an application to the European Court of Human Rights and the parties agreed to the extra-judicial settlement of the issue.19 In 2008, the Court decided to annul the Moravče commune decree on burials that determined the rules for a Christian burial, because the decree interfered with the principle of separation and the exclusive right of a church or a religious community autonomy to regulate religious rules on burials.20 The decision on the RF Act 2007 is the most comprehensive decision of the Court in the area of religious freedom in which the Court provided a detailed interpretation of the most important principles and stressed that the state-church separation may be supplemented by different forms of mutual cooperation.21 Although the Court evidently departed from ultrastrict interpretation of the separation principle, some parts of the RF Act were proclaimed not to be in accordance with the Constitution (e.g. the provision that called for at least 100 adult believers and at least ten years of continuous activities in Slovenia as basic criteria for the registration of a religious community, and provisions that enabled employment of religious workers in hospitals and in prisons). In 2014, the Court established that the provision of Article 86 of the OFEA that provided private schools carrying out state-approved education programmes with only 85% of public funding is not accordance with the second paragraph of Article 57 of the Constitution that ensures pupils the right to attend compulsory state-approved primary education programmes free of charge in public and private schools.22 At the moment, the National Assembly has still did not amended the OFEA. Recently, the Court reviewed the Act on national holidays and free days from the perspective of alleged discrimination due to the fact that some days free of work were are also Christian holidays. The Court stressed two arguments for the dismissal of the petition. First, the regulation of days 18 OdlUS XIII, 54 (Decision No. U-I-111/04 dated 8 July 2004). 19 OdlUS XVI, 100 (Decision No. Up-395/06, U-I-64/07 dated June 2007). 20 OdlUS XVII, 52 (Decision No. U-I-354/06 dated 9 October 2008). 21 OdlUS XIX, 4 (Decision No. U-I-92/07 dated 15 April 2010). 22 OdlUS XX/29 (Decision No. U-I-269/12 dated 4. December 2014). State and Church in Slovenia 547 free of work was not based on denomination, but on traditional, family, cultural and historical values and identity that are shared among vast majority. Second, the subject matter is not linked with the individual aspect of religious freedom.23 The last decision of the Court in the area of religious freedom was the annulment of judicial decisions that did not sanction a discrimination – concerning conditions of a public tender in the area of social and humanitarian work – of a charitable institution “Slovenska karitas” that was established by the Catholic Church. The Court established that the condition that prevented charity institutions established by religious communities from applying for public support, interfered with the equal treatment guarantees enshrined in Arts 2 and 13 of the Agreement with the Holy See.24 Legal Status of Religious Communities Although the Constitution only refers to religious communities (Art. 7), the RF Act explicitly refers to churches as well. However, the RF Act does not make a distinction between a church and a religious community (Art. 1). Under Article 7 para. 2 RF Act a church or any other religious community is defined as “…a voluntary, non-profit association of natural persons of identical religious belief, established with the purpose of public and private profession of this religion and having its proper structure, bodies and autonomous internal rules, proper religious service or other religious rites and profession of religion”. The acquisition – via registration – of a legal personality of a church or a religious community is not mandatory. However, a church or a religious community has a legal right to register, if fulfilling statutory conditions that are not demanding (Arts. 6 and 8 RF Act). According to the Art. 13 RF Act, a church or other religious community may be registered if it has at least 10 adult members, citizens of the Republic of Slovenia or foreigners with permanent residence, registered in its territory. The RF Act provides that the establishment (or dissolution) of religious communities is to be decided by the Competent Authority (at the moment this is the Office for Religious Communities situated within the Ministry of Culture; hereinafter also: the Office). The Office issues a decision on reg- V. 23 Decision No. U-I-67/14-11 dated 19. January 2017. 24 Decision No. Up-217/14 dated 7 February 2018. Lovro Šturm and Blaž Ivanc 548 istration according to the Administrative Procedure Act. By registration churches and religious communities acquire legal personality as entities governed by private law, whereas their component parts (e.g. parishes) may also acquire a separate legal personality (Article 6 para. 3 RF Act. Registration entails not only an opportunity to carry out activities as a church or a religious community, but also provides for additional rights for registered churches and religious communities (Chapter IV RF Act). These additional rights are related to various aspects of religious freedom such as: 1. the conclusion of special agreements between the state and a church or a religious community (Art. 21); 2. the assurance of religious spiritual care in the army (Art. 22), in the police (Art. 23), in prisons (Art. 24) and in hospitals and social welfare institutions performing institutional care (Art. 25); 3. the freedom of construction and use of premises and buildings for religious purposes (Art. 26); 4. state financial support for the payment of contributions of an insured person for the social security of employees of churches and other religious communities (Art. 27); 5. the financing of state support for the payment of social security contributions for the insured person (Art. 28); and 6. the state financing of registered churches and other religious communities (Art. 29 para. 3). Registered religious communities are not under any special supervision of the state. They are, however, subject to the same general supervision as other legal entities because their activities must conform to the Constitution, Statutes and other regulations. For example, the registration of religious communities is intended to protect third parties, and religious communities must carry out financial transactions through banks and under the supervision of the Tax Authorities. Various forms of religious gathering are in principle free (e.g. in religious building, customary religious processions, religious burials, congresses) and there is no duty to report such a gathering (Art. 12), though in very exceptional cases the Public Assembly Act demands that a (religious) gathering must be have a special permission (e.g. attendance of more than 3.000 people, use of public roads, use of open fire or other objects or devices that might endanger life or health of participants of such public gathering; see Art. 13). 25 Although, Slovenian legislation has no explicit mention of the right to observe and celebrate religious holidays, the data about religious holidays is gathered by the State when deciding an application for the registration of a religious community (Art. 14 RF Act). That right is encompassed by 25 Official Gazette RS, No. 64/11. State and Church in Slovenia 549 the right to profess one’s religion privately and publicly (Art. 2 RF Act). Under Art. 2 of the Public Holidays and Work-off Days in the Republic of Slovenia Act26 certain church holidays are regulated not as State public holidays, but as work-off days: Christmas (December 25), Easter Monday, Whitsuntide, Pentecost, the Assumption of the Virgin Mary (August 15), and the Protestant Day of Reformation (October 31). Culture Education The main Statute in this area is the OFEA that established the separation of public and private educational institutions. Private institutions may perform educational programmes certified under the same standards as public programmes. Accordingly, the diplomas issued by private institutions are recognised as public documents if their conferring institutions fulfil the same standards as public schools. These statutory standards require certain minimum levels in the training and education of employees, upkeep of premises, and availability of equipment. In Slovenia, municipalities and local communities establish public kindergartens and elementary schools, while the state generally establishes and finances secondary schools. Urban municipalities may also establish general secondary schools by agreement with the state. Public schools (and kindergartens) must be neutral vis à vis religion. The OFEA, on the basis of the strict interpretation of the constitutional provision separating the state and religious communities explicitly prohibits denominational activities (Art. 72 paras. 3 and 4). Initially, these prohibitions applied both to public kindergartens and schools, as well as private kindergartens and schools that had been granted state licences. The only exceptions to this were the private schools which were licensed prior to the coming into force of the Education Act. After the Constitutional Court held in 2001 that the prohibition concerning private kindergartens and schools that have been granted state licences was unconstitutional, the OFEA was consequently amended in 2002. However, certain restrictions remain. Religious activities in private schools must be extracurricular, so that the regular programme must not be interrupted in time or for a change of premises (Art. 72 para. 3). VI. 1. 26 Official Gazette RS, No. 112/05. Lovro Šturm and Blaž Ivanc 550 The restrictions applicable to public schools prohibit: lessons in religion with the aim of educating children in a particular religion, lessons where religious communities decide on the content of the syllabus, textbooks, educational criteria of teachers, and the suitability of a particular teacher for teaching, and the organisation of religious observances (Art. 72 para. 4). In special cases, the Minister of Education may allow religious lessons on the premises of kindergartens and schools. Such lessons are allowed only if there are no other "appropriate premises" in the local community (Art. 72 para. 5). Additionally, such religious instruction requires the headmaster's approval and must be given outside the regular curriculum and regular operation of the school. In practice, no other "appropriate premises" in the local community means that: no premises whatsoever are available in the local community; premises exist but their condition is bad enough to pose a health and security risk; the premises are more than four kilometres away from the kindergarten or the school; or if the premises are less than four kilometres away from the kindergarten or school but travel to those premises threatens the safety of the children. The OFEA lists autonomy as one of the goals of child-rearing and education. Under the Act, this concern for autonomy is shown in extracurricular "types and varieties of knowledge and persuasion," and by ensuring the optimal development of individuals irrespective of their religious belief. Accordingly, the Act requires that schools be religiously neutral and independent of religious communities. Additionally, this principle of autonomy prohibits discrimination against any religious belief and urges principled tolerance. While the Constitution does not regulate religious lessons, the OFEA explicitly prohibits lessons whose aim is to teach children to follow a particular religion. This prohibition applies to public schools and kindergartens. The Elementary School Act obliges schools to provide non-religious lessons on religion and ethics within the framework of their elective cours.27 All religious communities have the opportunity to organise religious lessons on their premises at any time, but this is not a concern of the school or the state. The nub of this issue is that it is a private matter for students. Regarding religious lessons, the OFEA states that religious communities may hold them on premises designated for observances and other 27 The Elementary Schools Act, Art. 17, para. 2. State and Church in Slovenia 551 premises where a religious community permanently carries out its religious activities. Minors, however, can attend these lessons only if they consent and have the consent of their parents or guardian. As previously described, the OFEA prohibits religious lessons in public schools where religious communities decide on syllabus, the textbooks, the educational requirements of teachers, and the suitability of a particular teacher for teaching. Accordingly, this legislation prevents the churches from designing religious lessons for public schools and from nominating the teachers of these courses. In unlicensed private (religious) schools, they may be, and usually are, a mandatory course. Statutes prohibit religious observances, such as prayer meetings, from being held in public schools and kindergartens. This prohibition, however, does not extend to private schools that were granted licences before the statute came into force. Among these private schools licensed before the statute entered into force are three Catholic general secondary schools. In these schools prayers are permitted but not mandatory. While legislation does not explicitly prohibit or allow displaying a crucifix or the cross (there is no distinction between them) in schools, these symbols are prohibited in practice as violating the principle of separation of the state and religious communities. However, there is no information indicating that any public school has ever tried to hang a cross or a crucifix nor has the Constitutional Court yet adjudicated in such a case. The Slovenian legal order envisages no difference between private religious kindergartens and schools and other private kindergartens and schools; the OFEA, for example, exclusively regulates private schools in general and does not mention religious schools. Religious communities may establish kindergartens and schools under the same conditions as other private law subjects. For the private religious schools that were granted licences before adoption of the OFEA, there were special transitional rules governing their funding and they have – by adjusting their curriculum and the execution of their programme according to the autonomy requirements – kept 100% state funding.28 Private schools may be freely established. This means that on the basis of the Act on Establishment it is necessary to enter an educational organisation into the court register or another appropriate register. 28 These schools were organized and operate under the 1991 Act on the Organization and Financing of Child Rearing and Education. Their licences are dependent on meeting the state educational and instructional requirements that were in force before the Education Act. Lovro Šturm and Blaž Ivanc 552 Private schools are free to follow their own educational programmes, unless they wish to obtain state licensing. In that case, they must obtain approval from the Government of Slovenia, or from its competent professional council, that their educational programme meets the same educational standard as the public educational programme. Founders of schools may be either domestic or foreign legal entities; however, only domestic natural persons or legal entities may establish elementary schools. In Slovenia there are 6 private elementary schools; there are 771 public elementary schools with branches and 57 public elementary schools for pupils with special needs. Among 124 secondary schools29 there are 4 private religious general secondary schools and 2 private non-religious general secondary schools (i.e. 4 % of secondary schools). Evidently, the share of private educational institutions on primary and secondary level is only 1.3 %. Consequently, a vast majority of pupils in Slovenia (98% or more) attend public educational institutions. The State supervises the registration of schools. It also supervises their educational programmes when schools are licensed, that is, when they want their diplomas to be recognised as public documents. The State does not, however, control the internal organisation of schools, except when it grants licences, and then statutory provisions apply ex lege to licensees. If the State, on the basis of a public call for tenders, makes licence contracts with private educational institutions for operating public services, all the provisions of the OFEA apply to licensed public kindergartens and schools. The most significant of these provisions concern the equal rights and obligations of students and their parents; the same quality in implementing the programmes; the internal organisation; the financing of programmes; and the educational conditions for professional employees. The rules concerning the enrolment of students and admission criteria that apply for public schools also, in principle, apply for licensed private schools, whereas religious (or world view) orientation of a student is not important. The certificates of religious private schools (general secondary schools) are recognised as public documents. Private educational institutions may be financed in two ways: they are either granted licences or financed directly under statute. The receipt of a licence means that the formally private school or kindergarten is part of the public network. Consequently, all conditions that apply to public schools or kindergartens also apply equally to the licensed school – they must carry out the same educa- 29 Ministry of Education, 2018. Retrieved May 2, 2018, from https://paka3.mss.edus.si/registriweb/Seznam2.aspx?Seznam=3010. State and Church in Slovenia 553 tional programme and fulfil all other conditions (and equally regulate the rights and obligations of students and their parents, maintain the same quality in implementing programs, have equal internal organisation and provide the equal financing of programs and educational conditions for professional employees). According to the statute itself, if private kindergartens, private elementary and music schools, and private general secondary schools (but not including professional schools) which carry out public programmes and are not licensees comply with statutory conditions, they have the right to public funds to a maximum of 85% of the funds that the State or local community designate for salaries and material costs per student in public schools. The only condition is that the existence of public elementary schools in the same area is not thereby threatened. The legislator still has to implement the decision of the Court that demands full financing educational programmes of primary private schools. Private schools carrying out public programmes must comply with conditions prescribed for professional employees of schools. If teachers comply with the statutory conditions (particularly concerning their education), private schools are free to choose their own staff. Thus far, in Slovenia, there have been no cases concerning the possibility of terminating an employment contract because of the nature of the school. Media Churches and religious communities are entitled to freedom of expression (Art. 39 Constitution) and have the freedom to establish and own the pubic media. The Media Act, which regulates the manner of realising the freedom of public information and the rights and duties of the media and journalists, explicitly exempts bulletins, press, and other forms of publishing information intended exclusively for use within Church organisations from the domain of (public) media (Art. 2). A religious community can publish a public gazette, if this is related to its activities. The dissemination of a programme that encourages ethnic, racial, religious, sexual or other discrimination, violence and war, or that incites racial, sexual, religious or other hatred and intolerance is not allowed (Art. 8 Media Act). In addition, advertising in public media may not encourage religious discrimination or religious intolerance or offend religious beliefs (Art. 47 para 3). A publisher of a radio or television program has the right to short reporting on major events and all other events that are open to the public, with the exception of religious ceremonies (Article 2. Lovro Šturm and Blaž Ivanc 554 74). The integrity of religious ceremonies is protected under Art. 93 Media Act, which assures that broadcasting of a religious ceremony may not be interrupted due to advertising. The Radio-Television of Slovenia (hereinafter: the RTV Slovenia) is Slovenia's national public broadcasting organisation with a public function. Its activities are regulated by the RadioTelevision of Slovenia Act (hereinafter: the RTV Slovenia Act). The mission of RTV Slovenia is of special importance for churches and other religious communities. In principle, the RTV Slovenia Act does not allow for religious propaganda in its programmes, whereas the term “religious propaganda” only relates to paid advertisements of religious communities (Art. 11). However, RTV Slovenia has several important tasks: 1. it must take into account the importance of religious issues and public activities of churches and religious communities; 2. it has to deliver high-quality educational programs and transmit a full range of issues related to not only to social, scientific and technological topics, but also to religious issues; 3. a special attention must be given to the functioning of registered churches and religious communities.30 Noticeably, churches and religious communities do have some influence on the composition and on decision-making process of the programme board of the RTV Slovenia, because the President of the Republic is empowered to appoints two members of the programme Board on the proposal of registered churches and religious communities (Art. 17). Labour Law within the Religious Communities General labour law applies to the (very few) church employees; these are mainly in church sponsored private schools. The RF Act (Art. 3) and the Equal Treatment Act provide for exceptions from general prohibition of discrimination in the field of employment within religious communities. Under Art. 2.a of the Equal Treatment Act, occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief do not constitute inadmissible discrimination based on religion or belief, if by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitutes a genuine, legitimate, and justified occupational requirement, considering the organisation’s ethos. VII. 30 See Ivanc, 2015, p. 176–179. State and Church in Slovenia 555 Financing of the Religious Communities Because of the absence of a church tax system, the main financial source remains self-financing of churches and religious communities. Consequently, churches and religious communities mainly rely on donations and other contributions of natural and legal persons on the one hand, and on the use of their property rights on the other hand. They are equally entitled to private property and inheritance as other persons governed by private law. The Denationalisation Act (1991) to some extent remedied injustices related to the violation of the property rights of religious communities, but the process of returning the nationalised property or compensations has still has not been completed. Registered churches and religious communities are free to receive voluntary contributions and may also receive contributions from religious organisations abroad. The Slovene Law on Religion provides for direct and indirect financing of religious entities from the state and local authorities. The provision in Article 20 of the Legal Status of Religious Communities Act (1976) remains in force and provides for such direct financing. In addition, the RF Act enables states financial support (with or without a specific purpose), if registered churches and religious communities are involved in activities of general benefit. An important direct state aid is targeted financial support for the payment of contributions for the social security of priests and members of religious orders (RF Act, Art. 27). The six largest religious communities benefit from state remuneration of their staff in proportion to the number of their personnel. The total amount of such direct financial aid in 2017 was around EUR 1.7 million. Indirect financing is mostly provided by certain exemptions in fiscal and customs matters. Priests and members of religious orders have to file tax returns, but may claim a 40% business expense deduction. In principle, churches and religious communities may also receive financial support by participating in humanitarian, non-profit, or charitable projects financed by the state or local authorities. As evident from the above mentioned decision of the Court on Slovenska Karitas, the state had a discriminatory policy in this area. Public co-financing of activities in the areas of culture, art, social care, and healthcare, is also enabled by the Slovene Law on Religion. Reconstruction of sacred buildings (mostly owned by the Catholic Church) are usually co-financed up to 30% or 50% and given with a sole purpose of preservation of objects of Slovenian cultural heritage. Religious communities are exempted from paying income tax. In practice this statute is usually interpreted to mean that while religious communities and societies as a rule do not pay taxes, since it is assumed that they were estab- VIII. Lovro Šturm and Blaž Ivanc 556 lished with non-profit intentions, they must however pay taxes on all profit generating activity, e.g. on publishing and selling books. Religious communities are also exempted from paying property tax on buildings used for their religious activities.31 Religious Assistance in Public Institutions Constitutional protection of the right to religious freedom also includes religious assistance to persons that work, reside or are being held in public institutions of different types. In 2007, the RF Act in a comprehensive manner regulated religious assistance in and access to the following types of public institutions: in the Army (Art. 22), in the Police (Art. 23), in prisons (Art. 24), in hospitals, and in social welfare institutions (Art. 25). Beside statutory rules, special agreements with registered churches and religious communities also regulate some areas of religious assistance in public institutions. Already in 2000, the government signed two agreements with the Catholic Church and the Evangelical Church that provide for religious spiritual care in the Army. This has led to the establishment of military chaplaincies and employment of military chaplains as public servants within the Army. Under Art. 52 of the Defence Act all members of the Slovenian Army enjoy the right to religious spiritual assistance during their military service. The Police Act was supplemented after the adoption of the RF Act and now provides that religious or spiritual care must be given to police officers in circumstances that make the exercise of their religious freedom difficult (Art. 73.a). In the decision on the constitutionality of the RF Act (in 2010), the Court held that such special circumstances that limit the individuals’ access to religious assistance, by raising burdens and provoking different life conditions, justify the employment of religious workers in the Army and in the Police. However, the Court was of different opinion concerning the employment of religious workers as public servants in public hospitals, social welfare institutions and in prisons. Thus, the Court annulled the provisions of the RF Act that made this possible. In general, the right to religious assistance in public institutions guarantees: 1. that a priest has a free access to the institution – although he or she must respect its internal rules – and may perform his or her work undisturbed and may visit individuals of the relevant religious belief without supervision at the appropriate time, 2. participation in religious cere- IX. 31 See Ivanc, Šturm, 2016, p. 373. State and Church in Slovenia 557 monies organised in the institution to the extent practicable, and 3. access to books with religious content and instruction. Public institutions have positive obligations to make the exercise of religious assistance possible (e.g. providing material conditions, premises and technical conditions). The Legal Status of Priests and Members of the Religious Orders A special legal status for priests and members of religious orders is provided under RF Act that sets two conditions for a “religious employee”: 1. he/she must a member of a registered church or other religious community, 2 he/she must me dedicated in his/her religious community exclusively and fully to the religious-ritual, religious-charitable, religious-educational and religious-organisational activities in compliance with the order, regulations, required qualifications and powers of the supreme authority of his/her church or other religious community (Art. 7). The RF Act provides for a targeted financial support for the payment of contributions for the social security of priests and members of religious orders, by which the state covers a certain part of the costs of mandatory health, social, and pension insurance. The legislator based such a solution more on the intention to protect corporative religious freedom of religious communities (Art. 41 in connection to Art. 7 para. 2 Constitution) than on the individual's constitutional right to social security (Art. 50 Constitution). To protect individual religious freedom and confidential relations between individuals and religious confessors, confidential religious communications are privileged in criminal, civil (litigious and non-litigious), and administrative procedures. Clergy are exempted from the duty to testify on what they have heard as the defendant's or party's confessor. It is left to religious confessors to decide for themselves whether to testify, but if they do testify they must tell the truth. Religious confessors are exempted from the general duty to report criminal offences or their perpetrators. The crime of the unauthorised betrayal of a business secret may also be committed by priests, if they without authorisation betray a secret they heard while carrying out their profession, unless they do this for the general good or the good of an individual, this being greater than the good of keeping the secret. It is considered that they must keep such information confidential even after they cease to follow their profession (Art. 142 PC 2008). Prosecution in such cases is brought by a private action (Art. 142 para. 3 PC 2008). X. Lovro Šturm and Blaž Ivanc 558 XI. Matrimonial and Family Law Article 53 of the Constitution and Arts. 33 and 38 of the Family Code32 provide for mandatory civil marriage that has to be solemnised before an empowered state authority (e.g. the registrar, head of the administrative unit, mayor). The state holds that religious communities cannot be granted any public authorisation. Accordingly, they have no authority to conduct legally binding civil marriages. They may marry or divorce couples only according to their internal law, which has no civil law consequences; i.e. from the state's position, these acts are not binding. Registers concerning marital and family status are kept by the state. The archives of religious communities are defined as private archives. The archival material of the Catholic Church (historical documents, e.g. records of births, deaths, and marriages) must be selected from church documentary materials according to its regulations. However the Minister of Culture, in agreement with the Slovenian Bishops' Conference, determines the special conditions and the means for carrying out the archival activities of the Church.33 XII. Bibliography Constitutional Court RS: Constitutional jurisprudence in the area of the freedom of religion and beliefs, XI the Conference of the European Constitutional Courts, Tribunal Konstytucyjny, Warsaw 2000, National report by the Constitutional Court of Slovenia, p. 677718. Drago Čepar (ed): The State and Religion in Slovenia, Ljubljana 2008. Drago Čepar and Blaž Ivanc (eds.): Legal Aspects of Religious Freedom/Les Aspects Juridiques de la Liberte Confessionnelle, International Conference, September 15–18, 2008/Conference International, 15–18 Septembre 2008, Ljubljana 2008. Andrej Graselli, Sporazum s Svetim sedežem (Agreement with the Holy See), Pravnik 55, 2000, 13, p. 94106. Blaž Ivanc: Religion and Law in Slovenia, Alphen aan der Rijn 2015, p. 1-230. Blaž Ivanc, Lovro Šturm: Slovenia, in: Gerhard Robbers, Cole W. Durham, Donlu D. Thayler (eds.): Encyclopedia of law and religion, Leiden; Boston 2016, vol. 4: Europe, p. 379-387. OdlUS: Decisions and Rulings of the Constitutional Court IXII, Ljubljana 19922018. 32 Official Gazette RS Nos. 15/17 and 21/18 – ZNOr. 33 The Act on Archival Materials and Archives, Art. 52. Official Gazette RS Nos. 30/06 and 51/14. State and Church in Slovenia 559 Urša Prepeluh, Pravni položaj verskih skupnosti v Sloveniji (The legal status of religious communities in Slovenia), Ljubljana 1997. Anton Stres, Država in cerkev (State and Church), Ljubljana 1998. Statistični urad Republike Slovenije: Popis prebivalstva, gospodinjstev in stanovanj 2002 (Statistical Office of the Republic of Slovenia, Census 2002). Retrieved May 5, 2018, from: http://www.stat.si/StatWeb/File/DocSysFile/8164 Lovro Šturm (ed.): Cerkev in država. Pravna ureditev razmerja med državo in cerkvijo (Church and State. Legal regulation of the relationship between the state and the church), comparative survey, Ljubljana 2000, p. 1360. Lovro Šturm: The State and Church relationship in Slovenia, p. 157196, in: The status of the states applying for membership to the European Union, Francis Messner (ed.). Milano 2002. Lovro Šturm: The Legal Status of Religious Communities in the Republic of Slovenia at the Time of Its Inclusion in the Free Democratic Society of Modern Europe, p. 385398, in A. Šelih (ed). State and Church. Selected historical and legal issues, Slovenian Academy of Sciences and Arts, Ljubljana 2002. Lovro Šturm (ed): Komentar Ustave Republike Slovenije (Commentary of the Constitution of the Republic of Slovenia, Ljubljana 2002, p. 11247. Lovro Šturm: Church and State in Slovenia, in: Silvio Ferrari, W. Cole Durham (eds.), Law and Religion in PostCommunist Europe, 2003. Lovro Šturm (ed): Komentar Ustave Republike Slovenije – Dopolnitev A (Commentary of the Constitution of the Republic of Slovenia – Supplement A, Kranj 2011, p. 11706. Tanja Taštanoska (ed): Vzgoja izobraževanje v Republiki Sloveniji 2016/2017, Ljubljana 2017. Retrieved May 2, 2018, from: http://www.eurydice.si/images/publikac ije/BROSURA-vzgoja-in-izobrazevanje-v-RS-2016-17.pdf. Legislation: Constitution of the Republic of Slovenia (Ustava Republike Slovenije) (1991), Official Gazette RS No. 33I/1991, 42/1997, 66/2000, 24/2003, 69/2004, 69/2004, 69/2004, 68/2006, 47/2013, 47/2013, 47/2013, 47/2013. Constitution of the Socialist Federative Republic of Yugoslavia (Ustava Socialistične federativne republike Jugoslavije) (1974), Official Gazette SFRJ No. 9-153/74. Agreement between the Republic of Slovenia and the Holy See (14 Dec. 2001). Agreement on the Legal Status of the Evangelical Church in the Republic of Slovenia (25 Jan. 2000). Agreement on Legal Status of the Pentecostal Church in the Republic of Slovenia (17 Mar. 2004). Agreement on Legal Status of the Serbian Orthodox Church (9 July 2004). Agreement on Legal Status of the Islamic Community in the Republic of Slovenia (9 July 2007). Lovro Šturm and Blaž Ivanc 560 Agreement on the Legal Status of the Buddhist Congregation Dharmaling (4 July 2008). Denationalisation Act (Zakon o denacionalizaciji), Official Gazette RS No. 27/1991- No. 6/2008 (last change). Family Code (Družinski zakonik), Official Gazette RS Nos. 15/17 and 21/18 – ZNOr. Redressing of Injustices Act (Zakon o popravi krivic), Official Gazette RS No. 59/1996-No. 92/2007 (last change). Religious Freedom Act (Zakon o verski svobodi), Official Gazette RS No. 14/2007- No. 100/2013 (last change). Protection of Public Order Act-1 (Zakon o varstvu javnega reda in miru-1), Official Gazette RS No. 70/2006. Military Service Act (Zakon o vojaški dolžnosti), Official Gazette RS No. 108/2002. Police Act (Zakon o policiji), Official Gazette RS No. 49/1998- No. 15/2013 (last change). Criminal Procedure Act (Zakon o kazenskem postopku), Official Gazette RS No. 63/1994-No. 47/2013 (last change). Organisation and Financing of Upbringing and Education Act (Zakon o organizaciji in financiranju vzgoje in izobraževanja), Official Gazette RS No. 12/96-No. 57/2012 (last change). Equal Treatment Act (Zakon o uresničevanju načela enakega obravnavanja), Official Gazette RS No. 93/2007. Religious Freedom Act (Zakon o verski svobodi), Official Gazette RS, Nos. 14/07, 46/10 – odl. US, 40/12 – ZUJF and 100/13. State and Church in Slovenia 561

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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.