The Court's decision came after the Commissioner for Fundamental Rights and 17 petitioner churches challenged the procedural provisions of the law, arguing that the provisions violated the nuetrality of state and freedom of religion. The Presidium of the Ecumenical Council of Churches shared its position on the matter in the following statement, which was sent today as a letter to György Hölvényi, State Secretary for Church and Minority Affairs of the Ministry of Human Resources, to Dr. Tamás Lukács, President of the Committee on Human Rights of Minority, Civic and Religious Affairs and to Dr. András Cser-Palkovics, President of the Committee on Constitutional Affairs, Justice and Procedure.
The Presidium of the Ecumenical Council of Churches in Hungary has been following closely the legal and legislative work carried out over the last week regarding the church law, the work which aimed to address the objections raised within Decision No. IV/2352/2012., made public by the Constitutional Court on 26 February 2013. We have examined the proposals submitted to the fourth amendment of the Fundamental Law, and as an independent civic organisation comprising the Protestant and Orthodox churches in Hungary, we wish to share our position below on the issue.
Both the Ecumenical Council of Churches in Hungary as a legal entity and the member churches of the Council consider the separation of state and church to be a fundamental value and principle that should be preserved. Therefore we find the Amendment Proposal of the Constitutional Committee No. 9929/51 to be problematic as it does not, in our view, handle appropriately the process that has also been criticised by the Constitutional Court, namely the registration of churches, which is dependent on Parliament's decision.
We agree with the argument of the Constitutional Court, which describes Parliament as a fundamentally political decision-making body, therefore the judgements made this body may never be free from certain political views or interests. Such a process could adversely affect the separation of state and church. We believe it is not sufficient – nor clear, as we are not aware of a potential amendment of the current church law – that the committee in its amendment proposal inserted a sentence into Paragraph 4 Article 2 of the Fundamental Law, opening the way for the possibility of filing a constitutional complaint against Parliament's decision.
In our view, a constitutional complaint to be included in the Fundamental Law is not the same as the missing legal remedy that the Constitutional Court pointed out. The two legal instruments are completely different. When Parliaments as an enforcement body makes a decision on the recognition of a religious community as a church, it acts as a public administration authority, and the option of legal remedy should be guaranteed so that one could appeal against such a single administrative action. This procedure would comply with fair treatment and the right to legal remedy. On the other hand, a constitutional complaint is a constitutional option to appeal against an unconstitutional law or judicial decision, which the injured party would be entitled to in a regular procedure only as an extraordinary legal remedy, which should be preceded by a regular legal remedy process. The amendment proposal does not suggest that this would be ratified within a cardinal act.
Therefore we ask for the proposal to be reconsidered and the procedure to be revised. We propose that when amending the church law, the legislators consider transferring the registration of churches to the powers of Budapest Metropolitan Court. Were a court to be responsible for the activities regarding the registration, the whole process would be more transparent and more solid in a constitutional sense as well.
Nevertheless, in view of the problems of abuse concerning church registration and church status over the last 20 years, we are in full support of the idea that the state should decide on the cooperation with churches based on its own criteria and principles. A way to achieve this could be if the state, complementing its already existing framework agreements with churches, entered into separate agreements with the churches, focusing on individual areas of government.
We believe that the committee amendment proposal already referred to includes a new phrase that is difficult to interpret: "the ability to cooperate," the use of which would lead to excessively wide, unpredictable and in certain cases ad hoc legal interpretations. Such a wording does not clearly indicate the legislative intent behind it, failing to eliminate the possibility of arbitrary legal interpretations, and resulting in unpredictable and uncontrollable decisions. Therefore we suggest that this criterion be excluded.
József Steinbach - President
Dr. Vilmos Fischl - General Secretary
Budapest, 5 March, 2013