2002/11/27 - Pl. ÚS 6/02: Religious Freedom

27 November 2002

HEADNOTES

The

Czech Republic is founded on the principle of a secular state. Under

Art. 2 para. 1 of the Charter, the state is founded on democratic values

and “may not be bound either by an exclusive ideology or by a

particular religious faith.” Thus, it is Republic must accept and

tolerate religious pluralism, meaning that, above all, it must not

discriminate against, or, on the contrary, give unjustified advantage

to, any particular religious faith. It also follows from the cited

article that the state must be separate from specific religions.

The principle of religious pluralism and tolerance is also implemented

in Art. 15 para. 1 and in Art. 16 of the Charter. Art. 15 para. 1 of the

Charter provides that freedom of thought, conscience and religious

faith is guaranteed, and that everyone has the right to change his

religion or faith or to be non-denominational. Under Art. 16 of the

Charter, everyone has the right to freely manifest his religion or

faith, either alone or in community with others, in private or in

public, through worship, teaching, practice or observance (para. 1).

Churches and religious societies govern their own affairs; in particular

they establish their own governing bodies, ordain their clergy, and

found religious orders and other church institutions independently of

state authorities (para. 2). The exercise of these rights may be limited

by law, in the case of a measure which is necessary in a democratic

society for the protection of public safety and order, health and

morals, or the rights and freedoms of others (para. 4). As the

Constitutional Court has already stated in the past, unlike the freedom

of conscience and religious faith, for the restriction of which the

Charter does not expressly provide any possible conditions, the freedom

to practice a religion or faith can be limited by statute for the

reasons cited. However, this means the ability to limit the exercise of

these rights, not of their regulation by the state (decision of 8

October 1998 file no. IV. ÚS 171/97, the Constitutional Court:

Collection of Decisions, vol. 12, p. 457 et seq).

It is evident from this that religious freedom can fundamentally be

defined primarily as a forum internum (Art. 15 para. 1 of the Charter),

i.e. as the freedom of everyone to profess a particular religion or

faith, in which third parties, and in particular the state power can not

interfere. This is a status negativus, or libertatis (G. Jellinek), a

typical delineation of the area of an individual’s liberty in which the

state power may not enter. However, at the same time it is evident that

limiting religious freedom to a forum internum is insufficient, because

the very defining element of freedom of religion is the right of

everyone to externally express his religion, naturally while observing

the limiting safeguards provided in Art. 16 para. 4 of the Charter.

The foregoing also directly gives rise to the principle of autonomy of

churches and religious societies, consisting primarily of the rule that

the state may not interfere in the activities of churches and religious

societies, and if the activities of churches are limited to internal

affairs (in particular organizational division), in principle it is not

possible to review these measures before state courts (The German

Constitutional Court has ruled analogously, BVerfGE 18/385).

Finally, the Constitutional Court states that religious freedom is not

guaranteed only at the level of domestic law (that is, primarily the

cited provisions of the Charter), but also enjoys international law

protection (e.g. Art. 18 the Covenant and Art. 9 of the Convention). In

this regard, the Constitutional Court emphasizes that the Czech Republic

is, under Art. 1 para. 1 of the Constitution, a democratic state

governed by the rule of law, founded on respect for the rights and

freedoms of the human being and the citizen. In this case, the cited

principle indicates, above all, that the Constitutional Court must take

as its starting point the domestic or international law framework which

provides the higher standard of protection for fundamental rights and

freedoms. If, in this case, the domestic framework contained in the

Charter provides greater protection of rights than is provided by the

cited provisions of international treaties, for that reason alone it

must be applied first.
 




CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court decided, in the matter of a petition

from a group of 21 senators to annul Act no. 3/2002 Coll., on Freedom

of Religion and the Status of Churches and Religious Societies and

Amending Certain Acts (the Act on Churches and Religious Societies), or

to annul certain provisions of that Act, as follows:

I.

The provision of § 6 para. 2, § 21 para. 1 let. b), § 27 para. 5, second

sentence in the part “and the profit earned may be used only to meet

the aims of the activities of a church or religious society” and § 28

para. 5 of Act no. 3/2002 Coll., on Freedom of Religion and the Status

of Churches and Religious Societies and Amending Certain Acts (the Act

on Churches and Religious Societies), are annulled as of the day this

finding is promulgated in the Collection of Laws.

II. The other parts of the petition are denied.

 


REASONING
 

On

13 February 2002 the Constitutional Court received a petition from a

group of 21 senators of the Senate of the Parliament of the Czech

Republic to annul Act no. 3/2002 Coll., on Freedom of Religion and the

Status of Churches and Religious Societies and Amending Certain Acts

(the Act on Churches and Religious Societies) - (“Act no. 3/2002

Coll.”). If the Constitutional Court does not grant this petition, the

group of senators proposes the annulment of certain provisions of Act

no. 3/2002 Coll., either § 6 para. 1 a nd2, § 11, § 16, § 20, § 21, § 22

para. 1 let. d), § 26, § 27 para. 4 and 5, § 28 para. 4 and 5 and § 29

in the part “and the Register of religious legal entities” (“wider

annulment”), or – as the case may be, without postponing the

executability of the annulment verdict - § 6 para. 1, § 6 para. 2 in the

part “for purposes of organization, profession and propagation of

religious faith as legal entities,” § 11 para. 1 let. b) and c), § 16

para. 2 to 5, § 20 para.1 let. f), § 21 para. 1 let. a) and b), § 22

para. 1 let. d), § 26 para. 1 let. b) to d), § 26 para. 2, 4 and 5, § 27

para. 4 and 5, § 28 para. 4 and 5 and § 29 in the part “and the

Register of religious legal entities” (“narrower annulment”). The

petitioners believe that the contested Act as a whole, or its individual

provisions, as cited, are  inconsistent with Art. 4 para. 4, Art. 15 a

Art. 16 of the Charter of Fundamental Rights and Freedoms (the

“Charter”), Art. 18 of the International Covenant on Civil and Political

Rights (the “Covenant”), Art. 9 of the Convention for the Protection of

Human Rights and Fundamental Freedoms (the “Convention”) and Art. 1 of

the Constitution of the Czech Republic (the “Constitution”).
 

The

petitioners first point to the fact that, compared to the existing

legal framework, Act no. 3/2002 Coll. lowers the standard for protection

of religious freedom and brings excessive state authority into

citizens’ private sphere. When the draft act was being prepared a number

of reservations arose on the part of political and church entities, and

the passage of the act in the legislative process did not go smoothly,

as it was rejected by the Senate, and after being passed again by the

Chamber of Deputies it was returned to the Chamber by the president of

the republic. In § 4 para. 3 the contested Act inaccurately paraphrases

Art. 16 para. 1 of the Charter, also gives a reference to the Charter in

a footnote, and provides no vacatio legis, although it considerably

changes the obligations and authorization of the state administration,

as well as the legal status of a number of entities. Moreover, this

change breaks legal continuity, which could have unfavorable

consequences for these entities.
 

The

petitioners base their petition on the fact that, under Art. 15 and 16

of the Charter, the state can not limit freedom of religion or interfere

in it if the exercise of that freedom does not endanger the rights of

others, but must only protect it, which is a typical example of the

concept of status negativus , where the state need not aid the exercise

of these rights by positive activity, but may not interfere in it. It

follows from this that the state basically may place legal demands on

churches or religious societies (further also referred to only as

“churches”) only if the churches or religious societies are, at the same

time, receiving something from the state. However, the contested Act is

not fully based on this concept, because it does not respect the

independent position of churches, which is different from that of other

legal entities in private law, in view of historical reasons and the

society-wide significance of churches and religious societies, whose

activities can not be reduced to actions related to the professing of a

particular faith, because these institutions also fill a number of other

roles, which are inalienable and irreplaceable from the viewpoint of

the state and the society, even that part of society which is not part

of them. Therefore, according to the petitioners, the state should grant

churches and religious societies a certain privileged status, which,

however, it does not do; on the contrary, it disadvantages them compared

to other legal entities. The effective activities of churches and

religious societies requires various organizational forms, which the

concept of informal associations professing a common faith does not

supply. In the petitioners’ opinion, these institutions should have the

right to create various organizations with status as a legal person, as

indicated by Art. 16 para. 2 of the Charter, under which churches and

religious societies can found church institutions, which are granted

legal personality status by religious law, according to its own rules,

and not according to the rules specified by the state. The state can not

specify when a church acquires legal personality status  or which

religious institutions can have legal person status granted to them by

church and religious societies and which ones can not. However, § 6

para. 1 of Act no. 3/2002 Coll. expressly states that religious legal

entities become legal entities by registration under this Act (or

analogously under § 28 of Act no. 3/2002 Coll. through the legal fiction

that they were registered). Even if we speak of record-keeping of these

legal entities, in fact they are being registered, as a register of

religious legal entities is being established. According to the

petitioners, it is certainly not permissible for the state to be able to

remove legal person status from these legal entities, as is made

possible by § 26 para. 2 of Act no. 3/2002 Coll. Likewise, one can not

agree that our state would have the authority to grant legal person

status to churches duly formed abroad, because that framework is much

stricter than the framework for the conduct of business by foreign

entrepreneurs in the Czech Republic. This leads to a violation of Art.

16 para. 2 of the Charter, because the act makes the creation of

religious legal entities subject to a decision by a state body, that is,

it limits freedom of religion far beyond the constitutionally permitted

framework.
 

The group of

Senators argues further that it is evident from the wording and purpose

of Art. 16 of the Charter that the freedom of churches and religious

societies to create religious institutions can not be reduced only to

founding institutions which do not have legal person status, but applies

to institutions endowed with the capacity for legal acts, which arises

from the mission of these institutions, whose significance can not be

compared to that of ordinary private law associations. In view of this

fact, it is puzzling to compare Act no. 3/2002 Coll. with Act no.

83/1990 Coll., on Association of Citizens, as amended by later

regulations, which permits civic associations – unlike churches and

religious societies – to found “organizational units” as subsidiary

legal entities which have their own legal person status, even though it

is dependent on the legal existence of the association. Although Art. 16

para. 4 of the Charter makes it possible to restrict churches and

religious societies in the creation of religious institutions, Act no.

3/2002 Coll. does not observe the constitutional safeguards provided in

that article, because if the legal creation of religious institutions

were not subject to record keeping (registration), this could not

endanger the protection of public safety and order, the health and

morals or the rights and freedoms of others. For that reason the

contested framework is a violation of the ban on arbitrariness on the

part of state power. It does not observe the principle of the state

exercising self-restraint in interfering in the freedom of religion,

under which, when fundamental rights and freedoms are limited, their

essence and significance must be preserved and limitations may not be

misused for purposes other than those for which they were provided (Art.

4 para. 4 of the Charter).
 

The

petitioners also contest § 6 para. 2 of Act no. 3/2002 Coll., which

restricts churches and religious societies to establish religious legal

entities only for purposes of organization, profession and propagation

of religious faith, because this framework does not take into account a

whole series of activities, such as charitable, humanitarian, health,

and other activities which these legal entities have heretofore

performed. Limiting the scope of their activities basically excludes

churches from society. The group of senators also considers

unconstitutional the legal framework contained in § 26 para. 4 of Act

no. 3/2002 Coll., under which the obligations of a “religious legal

entity” are to be guaranteed by the church or religious society which

proposed its entry in the records, because it markedly disadvantages the

creation of these entities in comparison to the founding legal entities

under the Commercial Code, as well as the founding of civic

associations’ derivative legal entities.
 

The

petitioners also point to § 27 para. 4 and 5 of Act no. 3/2002 Coll.,

which restricts the autonomy of churches and religious societies

guaranteed by Art. 16 para. 2 of the Charter. In addition, this

provision is internally inconsistent, because under § 27 para. 5 of Act

no. 3/2002 Coll. churches and religious societies may conduct business,

but at the same time this provision limits the conduct of business,

because it provides that the profits earned may only be used to fulfill

the aims of the activities of a churches or religious society. All

depreciated investment assets can be acquired only from the profits of

the legal entity, and in order for a church to be able to acquire assets

for the conduct of business, it must acquire them from its profits.

Thus, it can not continue to conduct business and acquire production

materials, when it is forced to use all its profits to fulfill its aims

and not for the further conduct of business.
 

Finally,

the group of senators also considers unconstitutional the legal

framework of § 11 of Act no. 3/2002 Coll., which makes the recognition

of a church or religious society’s authorization to exercise special

rights subject to the requirement that it must duly fulfill its

obligations toward the state and third parties and publish annual

reports, which de facto introduces state supervision of the private

financing of churches and religious societies, including at a time when

they are not receiving any state contributions. Concerning § 21 para. 1

let. a) a b) of Act no. 3/2002 Coll., which specifies the conditions for

annulling this authorization if churches in a serious manner or

repeatedly violate their obligations toward the state or other parties

or if they do not publish an annual report every year, the petitioners

consider that regulation to be a violation of the principle of

proportionality, because, although the state may restrict the financing

of churches and religious societies for financial debts, it can not

forbid the exercise of other rights (e.g. to teach religion or conclude

marriages) or annul their legal person status. In addition, the cited

regulation creates an opportunity for arbitrariness in the decision

making of the relevant body, because to open proceedings in these

matters it is sufficient for an administrative body to claim that some

obligations exist, without them being, for example, recognized with

legal effect by a court. This regulation discriminates against churches

and religious societies compared to business entities and civic

associations. This also applies to § 22 para. 1 let. d) of Act no.

3/2002 Coll., under which the ministry shall open proceedings to annul

registration if, for a period of more than 2 years, governing bodies

were not established, or their term of office ended and new ones were

not established, because the Commercial and Civil Codes do not establish

any penalties for such violations. For these reasons, the group of

senators proposes annulment of the entire Act no. 3/2002 Coll., in view

of its overall concept, which limits rights guaranteed by

supra-statutory norms and reduces the standard of protection of

religious freedom compared to the previous framework. If the

Constitutional Court does not grant this petition, the group of senators

proposes annulment of the incriminated provisions of Act no.3/2002

Coll.
 


II.
 

The

Constitutional Court found that the submitted petition meets all legal

procedural requirements and prerequisites, and nothing prevents it from

discussing and deciding the matter. Therefore, under § 69 of Act no.

182/1993 Coll., on the Constitutional Court, as amended by later

regulations, (“Act no. 182/1993 Coll.”) it called on the parties to the

proceedings – the Chamber of Deputies and the Senate of the Parliament

of the Czech Republic – to submit position statements concerning the

petition.
  The Constitutional Court also requested a position statement from the Ministry of Culture.     
The

Constitutional Court also requested a position statement from the

Ecumenical Council of Churches in the Czech Republic and a position

statement from the Czech Conference of Bishops.
 


III.
 

The

Constitutional Court first, in accordance with § 68 para. 2 of Act no.

182/1993 Coll., considered whether the act which the petitioners claim

to be unconstitutional, or individual provisions of which they claim to

be unconstitutional, was passed and issued within the bounds of

constitutionally provided jurisdiction and in a constitutionally

prescribed manner.
…..
The Act no. 3/2002 Coll. was passed and

issued in a constitutionally prescribed manner and within the bounds of

constitutionally provided jurisdiction, and that the quorums prescribed

in Art. 39 para. 1 and 2 of the Constitution were observed.
 


IV.
 

In

evaluating the petition from the group of senators, the Constitutional

Court feels a need to speak first – on a general level, at least briefly

– concerning the individual constitutional principles of religious

freedom in the constitutional order of the Czech Republic. In this

regard it starts with the following facts.
 

The

Czech Republic is founded on the principle of a secular state. Under

Art. 2 para. 1 of the Charter, the state is founded on democratic values

and “may not be bound either by an exclusive ideology or by a

particular religious faith.” Thus, it is evident that the Czech Republic

must accept and tolerate religious pluralism, meaning that, above all,

it must not discriminate against, or, on the contrary, give unjustified

advantage to, any particular religious faith. It also follows from the

cited article that the state must be separate from specific religions.
 

The

principle of religious pluralism and tolerance is also implemented in

Art. 15 para. 1 and in Art. 16 of the Charter. Art. 15 para. 1 of the

Charter provides that freedom of thought, conscience and religious faith

is guaranteed, and that everyone has the right to change his religion

or faith or to be non-denominational. Under Art. 16 of the Charter,

everyone has the right to freely manifest his religion or faith, either

alone or in community with others, in private or in public, through

worship, teaching, practice or observance (para. 1). Churches and

religious societies govern their own affairs; in particular they

establish their own governing bodies, ordain their clergy, and found

religious orders and other church institutions independently of state

authorities (para. 2). The exercise of these rights may be limited by

law, in the case of a measure which is necessary in a democratic society

for the protection of public safety and order, health and morals, or

the rights and freedoms of others (para. 4). As the Constitutional Court

has already stated in the past, unlike the freedom of conscience and

religious faith, for the restriction of which the Charter does not

expressly provide any possible conditions, the freedom to practice a

religion or faith can be limited by statute for the reasons cited.

However, this means the ability to limit the exercise of these rights,

not of their regulation by the state (decision of 8 October 1998 file

no. IV. ÚS 171/97, the Constitutional Court: Collection of Decisions,

vol. 12, p. 457 et seq).
 

It

is evident from this that religious freedom can fundamentally be defined

primarily as a forum internum (Art. 15 para. 1 of the Charter), i.e. as

the freedom of everyone to profess a particular religion or faith, in

which third parties, and in particular the state power can not

interfere. This is a status negativus, or libertatis (G. Jellinek), a

typical delineation of the area of an individual’s liberty in which the

state power may not enter. However, at the same time it is evident that

limiting religious freedom to a forum internum is insufficient, because

the very defining element of freedom of religion is the right of

everyone to externally express his religion, naturally while observing

the limiting safeguards provided in Art. 16 para. 4 of the Charter.
 

The

foregoing also directly gives rise to the principle of autonomy of

churches and religious societies, consisting primarily of the rule that

the state may not interfere in the activities of churches and religious

societies, and if the activities of churches are limited to internal

affairs (in particular organizational division), in principle it is not

possible to review these measures before state courts (The German

Constitutional Court has ruled analogously, BVerfGE 18/385).
 

Finally,

the Constitutional Court states that religious freedom is not

guaranteed only at the level of domestic law (that is, primarily the

cited provisions of the Charter), but also enjoys international law

protection (e.g. Art. 18 the Covenant and Art. 9 of the Convention). In

this regard, the Constitutional Court emphasizes that the Czech Republic

is, under Art. 1 para. 1 of the Constitution, a democratic state

governed by the rule of law, founded on respect for the rights and

freedoms of the human being and the citizen. In this case, the cited

principle indicates, above all, that the Constitutional Court must take

as its starting point the domestic or international law framework which

provides the higher standard of protection for fundamental rights and

freedoms. If, in this case, the domestic framework contained in the

Charter provides greater protection of rights than is provided by the

cited provisions of international treaties, for that reason alone it

must be applied first.
 


V.
 

Concerning

the petition to annul the entire Act no. 3/2002 Coll., the

Constitutional Court states that even the petitioners themselves

basically do not present relevant arguments for a justified presumption

that the entire act is unconstitutional. If the petitioners state – only

generally –that the contested act provides a lower standard of human

rights compared to Act no. 308/1991 Coll., parts of which it repealed,

and find unconstitutionality just in that fact, the Constitutional Court

has no choice but to point to its settled case law, under which the

annulment of a contested statute does not revive a previous statute

which it repealed or amended (finding of 12 February  2002 file no. Pl.

ÚS 21/01, promulgated on 11 March 2002 under no. 95/2002 Coll.). Even if

the Constitutional Court agreed with the presented opinion of the

petitioners and (only) for that reason annulled Act no. 3/2002 Coll.,

this would not revive Act no. 308/1991 Coll., and there would merely be

an objective need to pass a completely  new law governing the subject

matter of churches. Moreover, it must be pointed out that the reason for

annulling a legal regulation can not be merely comparison of it with

the previous legal framework, as the petitioners indicate, but solely

finding that it is inconsistent with the constitutional order of the

Czech Republic.
 

For these

reasons, the Constitutional Court states that it did not find the

petition – not justified in more detail – to annul the entire Act no.

3/2002 Coll. to be justified and therefore further considered only the

petition to annul individual provisions of Act no.3/2002 Coll. or the

petition to annul certain parts of them. In doing so, it also considered

in each case those provisions whose content was directly interrelated.
 


VI.
 

The question of registration of churches, religious societies, and record keeping of religious legal entities:

The text of the contested provisions:

§ 6 para. 1, 2:
Registered churches and religious societies

(1) A church or religious society becomes a legal entity by

registration (a “registered church or religious society”) under this

Act, unless this Act specifies otherwise.
(2) A registered church or

religious society may propose for recording a body of a church or

religious society or a religious order or other religious institution

founded within a church or religious society under its internal

regulations for purposes of organization, profession and propagation of

religious faith as a legal entity under this Act (a “religious legal

entity”).

§ 16:
Recording of religious legal entities
(1)

An application to record a body of a registered church or religious

society or a religious order or other religious institution as a legal

entity shall be filed by the body of the church or religious society

designated thereto in the founding document submitted under § 10 para.

3.
(2) An application to record a legal entity under para. 1 must

contain a) a document about its founding by the appropriate body of the

registered church or religious society according to its founding

document, b) delineation of its activities and its by-laws, if they

exist, c) its name, which must be different from the name of any legal

entity which is already conducting activities in the Czech Republic or

which already applied to be recorded, d) its registered address in the

Czech Republic, e) identification of its statutory body in the Czech

Republic, f) personal data of the members of its statutory body.
(3)

A registered church or religious society shall file an application

under para. 1 within 10 days from the day the religious legal entity is

founded. The Ministry shall record the religious legal entity by an

entry in the Register of religious legal entities within 5 business days

from the day the application is delivered. The record shall be made by

entry as of the day the entity was founded within the registered church

or religious society.
(4) If a registered church or religious

society does not meet the deadline provided in para. 3, the record shall

be made by entry as of the day the application is delivered to the

Ministry under para. 1.
(5) If the application under para. 1 does

not contain all the requirements under para. 2, the Ministry, shall, no

later than 10 business days after the application is delivered, call on

the body of the registered church or religious society authorized to

file it to complete the application or remove inadequacies, to do so

within a period of 30 days, and shall inform it that if this deadline is

not met, proceedings on the application will be stopped.

§ 20:
Register of religious legal entities

(1) The following information and changes to it are entered in the

Register of Religious Legal Entities: a) the name of the religious legal

entity, with the record date and number, b) the legal entity’s

registered address in the Czech Republic, c) identification of the

religious legal entity’s statutory body, d) personal information of the

members of the religious legal entity’s statutory body, e) the

identification number of the religious legal entity, f) cancellation of

the record of the religious legal entity, entry into liquidation and

personal data of the liquidator, declaration of bankruptcy and personal

data of the bankruptcy administrator, denial of a filing for bankruptcy

due to a lack of assets and opening of proceedings on settlement, with

the date and number of the decision on these facts, g) identifying data

of the legal successor of the religious legal entity, if it is wound up

with a legal successor, h) the termination of the religious legal

entity.
(2) The Register of Religious Legal Entities includes a

collection of documents containing documents submitted in the

application to record the religious legal entity and in applications to

change the record.
(3) Data under paragraph 1 let. d) and changes to

it shall be, on the basis of an application from a registered church or

religious society, replaced by identification of the body of the church

or religious society which maintains this data and changes to it and

which is required, for the record keeping of this part of the Register

of Religious Legal Entities, to appropriately observe § 17.

§ 22 para. 1 let. d):
Canceling the registration of a church or religious society or a union of churches or religious societies
(1)  

 The Ministry shall open proceedings to cancel the registration of a

church or religious society or proceedings to cancel the registration of

a union of churches or religious societies
…..
d) if, for a

period of more than 2 years, the bodies of the registered church or

religious society or the statutory bodies of a union of churches or

religious societies were not established, or the term of office of the

existing bodies and statutory bodies ended more than 2 years previously

and new ones were not established.


§ 26:
Cancellation of a record of a religious legal entity and its termination

(1) The Ministry shall cancel the record of a religious legal entity a)

at the application of the registered church or religious society within

5 business days from the day the application is delivered, b) on its

own initiative, if it determines that the religious legal entity is

acting inconsistently with the delineation of its jurisdiction in the

application for recording under § 15 para. 4 or inconsistently with

legal regulations, and if the appropriate body of the registered church

or religious society does not correct this after being called upon to do

so by the Ministry, as of the day the decision to terminate the record

went into legal effect, c) on its own initiative, if the registration of

the church or religious society, which applied to record the religious

legal entity terminates, as of the day the decision to cancel the

registration of the church or religious society under § 24 para. 3 goes

into legal effect d) if bankruptcy proceedings were filed against the

religious legal entity, by cancellation of the bankruptcy because the

distribution resolution was fulfilled or by cancellation of the

bankruptcy because of insufficient assets to cover the bankruptcy

expenses, or by rejection of the filing for bankruptcy due to

insufficient assets.
(2) A religious legal entity ceases to exist upon deletion from the records in the Register of Religious Legal Entities.

(3) The termination of a religious legal entity is preceded by it being

cancelled with liquidation, or cancelled without liquidation, if its

assets and obligations are transferred to a church or religious society

or another religious legal entity thereof.
(4) If, during

liquidation of a religious legal entity, its assets are insufficient to

cover its obligations, the church or religious society, which proposed

it for recording shall guarantee these obligations.
(5) If a

religious legal entity is terminated without liquidation, and if a

bankruptcy filing is not made against it, the date of its cancellation

shall be the date of its deletion from Register of Religious Legal

Entities.

§ 28 para. 4 and 5:
  (4) Registered churches or

religious societies under paragraph 1 are required, within 1 year after

this Act goes into effect, to provide the Ministry completed data under

this Act for purposes of their registration or recording. If a

registered church or religious society does not complete this data, the

Ministry shall call upon it to complete the data by a deadline of at

least 30 days from the day the call is delivered. If a registered church

or religious society does not complete the data by that deadline, the

Ministry may, depending on the nature of the incomplete data, open

proceedings to cancel its registration.

(5)

A registered church or religious society is required to complete,

within 1 year from the day this Act goes into effect, data on recorded

religious legal entities under this Act by the body designated thereto

in its founding document. If the data on the religious legal entity are

not completed by that deadline, the Ministry shall call upon the

registered church or religious society to complete the data by a

deadline of at least 30 days from the day the call is delivered. If a

registered church or religious society does not complete the data by the

specified deadline, the Ministry may, depending on the nature of the

incomplete data, cancel the record of the religious legal entity. For

religious legal entities which have been in existence for more than 50

years the document on founding under § 16 para. 2 let. a) of this Act

can be replaced by a sworn statement from the church or religious

society.

The words “and the Register of Religious Legal Entities” in § 29:

Authorizing provision
The

Ministry shall specify by decree the details and conditions for

maintaining the Register of Registered Churches and Religious societies,

the Register of Unions of Registered Churches and Religious Societies

and the Register of Religious Legal Entities and models of all extracts

of registration or records under this Act.

The Constitutional

Court states that the essence of the cited provisions of Act no. 3/2002

Coll. is (I.) establishing the principle, that the legal creation of a

church or religious society takes place at the moment of registration,

which is done by the relevant ministry. The same body is also authorized

to cancel a registration. (II.) A registered church or religious

society can be proposed to the ministry for recording by a religious

legal entity, and the act regulates in detail the requirements of such a

record, defines the Register of Legal Entities and also regulates the

cancellation of the record of a legal entity and its termination.
 

On the question of registration of a church or religious society, the Constitutional Court states the following (re I.):
 

1.

Under § 6 para. 1 of Act no. 3/2002 Coll., a church or religious

society becomes a legal entity upon registration under this Act, unless

the Act provides otherwise. This means that the text of Act no. 3/2002

Coll., which is a component of domestic law, positively governs the

creation of legal person status of the cited religious society, and thus

that the legal creation of these entities is derived from registration

performed by the Ministry. Therefore, an individual legal act, the

registration, has constitutive effects, and basically represents the

state’s acceptance in relation to the creation of a particular

association.
 

2. In this

regard the Constitutional Court could not overlook the framework

contained in the repealed Act no. 308/1991 Coll., to which the

petitioners also expressly refer. Under § 4 para. 2 of that Act, it was

provided that “a Church or religious society functions in the Czech and

Slovak Federative Republic on the basis of registration.” The previous

legal framework was based on the fact that churches or religious

societies could legally exist independently of its their acceptance by

the state power, nonetheless, if they wanted to legally function in the

state, registration was required. The state did not recognize churches

or religious societies other than registered ones (§ 4 para. 4 of Act

no.308/1991 Coll.).
 

3. It is

evident that the formulation used in § 6 para. 1 of Act no. 3/2002

Coll. is considerably different from the previous regulation. Whereas

Act no. 308/1991 Coll. regulated the process of registration of churches

and religious societies expressly only for purposes of their function

in the domestic environments, and did so primarily because of the need

for legal certainty for third parties, at first glance the text of the

new statutory framework aspires to the registration of these legal

entities having constitutive effects, i.e. it evokes the impression that

a domestic administrative act leads to the legal creation of churches

or religious societies, that is, their general legal capacity. However,

it must be added that such an approach would clearly not correspond with

the nature of a number of churches and religious societies, whose legal

existence often arises not from state law but from canon law (or

international law) and the state power therefore can not have ambitions

to regulate these institutions by law (including constituting them), but

only to limit their activities in cases enumerated in Art. 16 para. 4

of the Charter.
 

4. The

Constitutional Court also points out that relations between the Catholic

Church (the Holy See) and individual states are traditionally governed

by international agreements (concordats). These agreements primarily

regulate the organization of religious institutions within a given

state. It is evident that the legal person status of the Catholic Church

is undisputed and the domestic legal order can not in any way interfere

in it or cast it in doubt. Confirmation of this is, for example, the

text of  Art. 1 of the draft Agreement between the Czech Republic and

the Holy See on the regulation of mutual relations, under which the

named parties recognize each other’s international law legal

personality  and consider each other independent entities under

international law, and agree to fully respect this status.
 

5.

In a number of its previous decisions the Constitutional Court

emphasized the fact that it gives preference to the principle of

constitutionally consistent interpretation of legal regulations over

annulment of them. In this case it is evident that the legislature,

through the differing formulation of the cited provision – compared to

the previous § 4 para. 2 of Act no. 308/1991 Coll. – created a somewhat

unclear legal situation, which does not fully correspond to, for

example, the requirements imposed on the creation of laws by the

European Court for Human Rights, which consist of observing the

conditions for a statute of accessibility, understandability, and

foreseeability of its consequences. Thus, only a norm formulated

sufficiently precisely that it makes it possible for a citizen to adjust

his actions accordingly (Hashman and Harrup v. United Kingdom, Reports

of Judgments and Decisions, European Court of Human Rights no. 1/2000,

p. 46) can be considered a “statute.” However, the Constitutional Court

believes that the inconsistency of § 6 para. 1 of Act no. 3/2002 Coll.

with the cited constitutional safeguards, claimed by the petitioners,

can be overcome by a constitutionally consistent interpretation, and

that therefore it is not necessary to annul it.
 

6.

Therefore, in this regard the Constitutional Court states that § 6

para. 1 of Act no. 3/2002 Coll. can not affect the legal person status

of churches under religious legal regulations or international law,

rather it only sets certain conditions for recognizing their legal

personhood, also ensuring a minimum of protection for other parties to

private law property relationships. Thus, a constitutionally consistent

interpretation of § 6 para. 1 of Act no. 3/2002 Coll. is primarily such

that this provision can not be used to cast any doubt on the already

existing general legal person status of churches and religious societies

and their rights to existence independently of acceptance by a state

(the Czech Republic). The function of registering them is thus the same

as in the case of the regulation contained in Act no. 308/1991 Coll.,

which, however, reflected this fact, in its chosen wording,

substantially more accurately – that is, only setting conditions for the

functioning and legally relevant activities of churches and religious

societies in the Czech Republic, not the creation of their general legal

capacity.
 

7. The

Constitutional Court further states that, similarly to the foregoing,

the cancellation of registration of a church or religious society (or

cancellation of registration of a union of churches and religious

societies), contained in § 22 para. 1 let. d) and § 28 para. 4 of Act

no. 3/2002 Coll. must also be interpreted consistently with the

Constitution. Insofar as the Constitutional Court concluded that the

state is authorized to set conditions for the functioning and legally

relevant activities of  churches and religious societies in the Czech

Republic and formally express these conditions in the institution of

registration, it is also necessary to respect the state’s right to set

conditions for removing the opportunity for this legally relevant

functioning by a church or religious society in the Czech Republic if

these conditions are violated.
 

8.

Therefore, the Constitutional Court concluded that § 6 para. 1, § 22

para. 1 let. d) and § 28 para. 4 of Act no. 3/2002 Coll. are not

inconsistent with Art. 16 para. 2, 4 of the Charter, and therefore it

denied the petition to annul them.

On the question of the recording of religious legal entities, the Constitutional Court states the following:
 

1.

The Constitutional Court states, first of all, that Art. 16 para. 2 of

the Charter regulates the right of churches and religious societies to

manage their affairs, in particular to establish their bodies, ordain

their clergy and found religious orders and other religious institutions

independently of state bodies. This is thus a fundamental right enjoyed

by churches or religious societies as particular legal entities (see,

e.g. decision of the Constitutional Court of the CR file no. IV. ÚS

171/97, Collection of Decisions, vol. 12, p. 468, and similarly decision

of the  Constitutional Court of the SR of 10 October 1995 file no. II.

ÚS 128/95, Collection of Decisions of the Constitutional Court of the

Slovak Republic 1995, Košice, 1996, p. 322 et seq). The content of this

right is the right to autonomy, that is the right to be independent of

the state in the management of one’s affairs. The guarantee of freedom

to organize and manage one’s own affairs is a necessary prerequisite for

freedom of religious life and the functioning of a church, which

requires, for the preservation of its tasks, freedom to establish its

organization, promulgate norms and manage itself (see, e.g., finding of

the German Constitutional Court, BVerfGE 70/138). The position of

specialized literature also takes as its starting point the premise that

Art. 16 para. 2 of the Charter does not rule out, and presumes, that

external state review will be exercised for the preservation of laws in

these special associations “to protect the values cited in para. 4 of

the article. However, this statutory regulation of the relationship of

the state to these associations would not be able to limit the

independence of churches and religious societies concerning the founding

of their bodies and other questions of internal life” (V. Pavlíček et

al.: The Constitution and the Constitutional Order of the Czech

Republic, part 2 – Rights and Freedoms, Linde, 1996, p. 154).
 

2.

The Ministry of Culture, in its position statement concerning the

petition states – in this regard –that it is necessary to differentiate

the various areas of the functioning of churches and religious societies

and that this legal framework must be differentiated from the

individual rights and freedoms of citizens, because “the legal

regulation of churches and religious societies is not intended to

regulate the individual rights of citizens or of each person in the area

of faith and religious affiliation.” The Ministry of Culture is also of

the opinion that the petitioners incorrectly and self-servingly mix the

concepts “church institution” and “religious legal entity,” as the

contested Act respects the right of churches and religious societies to

found church institutions without legal person status but a broad

interpretation of the Charter to include autonomous founding of

religious legal entities allegedly “violates the constitutional

principle of state sovereignty.”
 

3.

Therefore, a disputed question in this case is evaluation of whether

creating religious legal entities can be subjected to Art. 16 para. 2 of

the Charter or not. In other words, whether founding religious orders

and other religious institutions can be understood either restrictively,

in the sense that this constitutionally guaranteed right applies only

to internal church institutions which do not have individual legal

person status, or whether, on the contrary – in the broad sense – this

provision also applies to institutions with their own legal person

status.
 

4. The German

Constitutional Court, for example, accepted that “the concept of the

Catholic Church includes the practice of religion not only in the area

of faith and services, but also freedom to develop and function in the

world, which corresponds to its religious tasks. These include

especially charitable functions. Active love of one’s neighbors is an

essential task for Christians, and is understood by Christian churches

as a basic function. It includes not only hospital care provided by the

church, but is generally, according to the basic religious requirements,

oriented toward providing for needy people, including raising and

educating them” (BVerfGE 70/138 57/220). In this regard it is also

appropriate to point to Art. 10 of the draft Agreement between the Czech

Republic and the Holy See Governing Their Relations (note, in

particular the Minister of Culture, in his position statement on the

petition, points to this Agreement), under which the Catholic Church

founds, in accordance with its own regulations, legal entities for the

organization and profession of the Catholic faith “and for its

functioning, in particular in the areas of education, health care, and

social and charitable care.” This means that the draft of the agreement

unambiguously accepts that the (Catholic) church is entitled to found

religious legal entities and respects their functioning not only in the

area of professing a faith, but also in other areas, which are an

inseparable and indispensable component of every active church or

religious society.
 

5. Thus,

if § 6 para. 2 of Act no. 3/2002 Coll. limits the right of a church or

religious society to propose a religious legal entity for recording only

“for purposes of organization, profession, and propagation of religious

faith,” this restrictively defined concept is in evident conflict with

the very aim and purpose of churches and religious societies and

testifies to a fundamental failure to understand them, as their

activities are naturally not reduced only to presentation of religious

faith, but through their external activities, exceeding the mere

practice of religion, they radiate into the entire society and are also a

necessary prerequisite for the functioning of a civil society. This

limitation is evidently inconsistent with Art. 16 para. 2 of the

Charter, as that article guarantees the right of churches and religious

societies to found religious orders and other church institutions

independently of state bodies, while § 6 para. 2 (like the related

provision, § 28 para. 5) makes the creation of religious legal entities

subject to a recording performed by the Ministry.
 

6.

It is evident that the limiting of the legal creation of religious

legal entities arising from the cited provisions also does not

correspond with the reasons for which it is possible to limit the

exercise of these rights, enumerated and positively enshrined in v Art.

16 para. 4 of the Charter. These limitations, which in view of their

nature must be interpreted restrictively, may arise only in the case of

“measures necessary in a democratic society to protect public safety and

order, health and morals, or the rights and freedoms of others.”

Applying an argument a contrario, it is evident that the statutorily

provided limitation of a fundamental right enshrined in Art. 16 para. 2

of the Charter by the specified condition of recording religious legal

entities by the Ministry does not fall under any of the cited

constitutional safeguards, and therefore, for that reason as well, this

is an unconstitutional limitation which does not respect the autonomy of

churches and religious societies and the plurality of their activities.

In any case, as is also indicated by the settled case law of the

European Court for Human Rights, to limit a fundamental right, three

basic conditions must be met: the limitation must be set by statute,

must be aimed at a legitimate goal, and must be necessary in a

democratic society. However, in the adjudicated matter it is evident

that only the first of these conditions has been met, and state

interference in the founding of religious legal entities can not be

described as aiming at a legitimate goal, nor as a measure which is

necessary in a democratic society.
 

7.

The Constitutional Court also states that according to the wording of

the cited provisions the legal creation of religious legal entities is

tied to recording and not to registration. Thus, from a theoretical law

standpoint, the creation of religious legal entities should be given a

substantially “looser regime” than other legal entities recognized by

Czech law. Recording, by its nature (in contrast to registration), is

not a constitutive, but merely a declarative legal act. Therefore, an

“already established institution” can be proposed for recording, and the

effects of the record are, as a matter of principle, dated

retroactively, i.e. to the day of founding of the religious legal entity

by a registered church or religious society, and not only to the day of

recording. However, from a factual viewpoint and the viewpoint of

application, one can not overlook the fact that there is no marked

difference between recording and registration, as it is regulated in the

contested Act, as the Act provides clear conditions for the recording

application, and if they are not fulfilled – which the Ministry is

authorized to evaluate – recording will not be performed (read: this

religious institution will not be created), and the Ministry is also

authorized, in enumerated cases, to cancel the record of a religious

legal entity if, for example, it determines that the religious legal

entity is acting inconsistently with the definition of its jurisdiction

or in (unspecified) conflict with legal regulations.
 

8.

In the legal environment of the Czech Republic, the Constitutional

Court also could not overlook the fact that the right to associate in

churches and religious societies is a special form of the exercise of

freedom of association. It is true that “ordinary” associations have,

under Act no. 83/1990 Coll., the right to establish organizational units

as subsidiary legal entities, derived from the association as a whole

and having legal person status (see, e.g. I. Telec, Spolkové právo, C.H.

Beck, 1998, p. 148 et seq), and in order to establish these legal

entities in principle it is sufficient to have in the by-laws a

regulation which permits it. Thus, the creation of these subsidiary

legal entities is not subject to acceptance on the part of the state. It

is worth pointing out the manner of legal coming into existence of a

union organization or an employers’ organization, which takes place ex

lege on the day after an application for recording is delivered to the

Ministry (§ 9a para. 1 of Act no. 83/1990 Coll.). From this comparative

domestic law viewpoint as well, the statutory requirement for recording

religious legal entities is unjustified. In other words, as churches or

religious societies are, in their significance, non-fungible with

ordinary associations, and if ordinary associations can establish legal

entities without state interference, a statutory limitation on the

creation of religious legal entities through recording by a state body

is not justified.
 

9. The

arguments of the Ministry of Culture that the autonomous founding of

religious legal entities violates the constitutional principle of state

sovereignty must be rejected, for the reason that the concept of a

democratic state governed by the rule of law is closely connected with

the idea of a liberal state which tolerates a plurality of social

phenomena and institutions. Therefore, the  principle of state

sovereignty can not be understood in a manner so broad that even the

very legal existence of any legal entities derived from a legal fact

other than the express acceptance by the state power would necessarily

be inconsistent with it. The idea of a liberal state governed by the

rule of law is based on the premise that the state is to limit its own

interference and influence only to such cases where it is necessary and

where it unambiguously corresponds with the public interest. An

overactive state influence and arbitrary regulation of social phenomena

is clearly inconsistent with this concept. Moreover, in the case of

churches and religious societies it must be taken into account that they

are often historic institutions, existing continuously under various

forms of government and in various state frameworks. Therefore, the

state should approach these institutions, representing the exercise of

religious freedom, especially sensitively, and should very carefully

weigh its restrictive principles, and limit them to truly justified

cases.
 

10. On the basis of

the foregoing, the Constitutional Court concluded – guided by the

principle of self restraint and minimization of interference – that § 6

para. 2 and § 28 para. 5 of Act no. 3/2002 Coll. are unconstitutional.

In the Constitutional Court’s opinion, these provisions directly give

rise to subjecting the legal coming into existence of religious legal

entities to a state decision, i.e. de facto registration of them, even

though in the Act it is formally described as recording. However,

because the Constitutional Court did not find convincing reasons for

casting doubt on the principle itself of recording these entities (in

the true sense, not in disguised registration, as it is in the context

of the annulled § 6 para. 2 of the Act), and it believes that recording

is appropriate, in particular in terms of fulfilling an information

function and the function of protecting the rights of third parties, it

denied the petition to annul § 16, § 20, § 26 and to annul the cited

words in § 29 of Act no. 3/2002 Coll. In the situation where the

Constitutional Court annuls § 6 para. 2 of the act as unconstitutional,

the cited provisions can be interpreted and applied in a

constitutionally consistent manner, so that annulling them is not

necessary. These provisions regulate the content requirements of an

application for recording (§ 16), the register of religious legal

entities (§ 20, § 29), cancellation of a record of a religious legal

entity and its termination (§ 26), and in the Constitutional Court’s

opinion they can be interpreted, with the annulment of § 6 para. 2 and §

28 para. 5 of Act no. 3/2002 Coll. so that they do not condition the

legal coming into existence and termination of religious legal entities

on a constitutive legal act by a state body, but so that the recording

is only of a declarative nature and performs the specified functions of

providing information and protecting the rights of third parties.
 

11.

For all the cited reasons the Constitutional Court states that § 6

para. 2 and § 28 para. 5 of Act no. 3/2002 Coll. are inconsistent with

Art. 16 para. 2 and para. 4 of the Charter and, for that reason, annuls

them. The petition to annul § 16, § 20, § 26 and to annul the cited

words in § 29 of Act no. 3/2002 Coll. is denied.
 


VII.
 

Authorization to exercise special rights:

The text of the contested provisions:

§ 11:
Application for assignment of authorization to exercise special rights

(1) An application for assignment of authorization to exercise special

rights may be submitted by a registered church or religious society,

which a) has been registered under this Act for at least 10 years

without interruption as of the day the application is submitted b)

published annual reports on its activities for the calendar year every

year for 10 years before submitting the application, c) is duly

fulfilling its obligations toward the state and third parties,
(2)

An application for assignment of authorization to exercise special

rights is filed by a body of the registered church or religious society.

(3) An application for assignment of authorization to exercise special

rights may be filed either for the exercise of all special rights under §

7 para. 1 or only for the exercise of special rights under § 7 para. 1

let. a) to e).
(4) An application for assignment of authorization to

exercise special rights under § 7 para. 1 let. a) to e) must contain a)

original signatures of as many of the Czech Republic or foreigners with

permanent residence in the Czech Republic who are of age and claim

membership of this church or religious society, as amount to 0.1 percent

of the residents of the Czech Republic according to the last census,

giving their individual data according to this Act and giving identical

text on each signature page, which gives the full name of the church or

religious society which is collecting signatures for purposes of its

registration, and from which it is evident that the signature page is

signed only by a person claiming membership of this church or religious

society, b) a declaration that its previous activities as a legal entity

under this Act are not inconsistent with the conditions provided by

this Act and that they meet the conditions in paragraph1 let. c), c)

texts of annual reports under paragraph 1 let. b) and closing accounting

statements for the period of 10 years preceding the filing of the

application.
(5) An application for assignment of authorization to

exercise special rights under § 7 para. 1 must contain the requirements

under paragraph 4 and also a document confirming that the clergy’s duty

of confidentiality in connection with the secrecy of the confessional or

in connection with the exercise of a right analogous to confession has

been a traditional component of the teaching of the church or religious

society for at least 50 years.

§ 21:
Cancellation of authorization to exercise special rights

(1) The Ministry shall open proceedings to cancel authorization to

exercise special rights a) if a registered church or religious society

in a serious manner or repeatedly violates its obligations toward the

state or third parties, b) if a registered church or religious society

does not publish an annual report under § 7 para. 3 every year, or c) on

the basis of a request from a state administration body under its

jurisdiction given by a special legal regulation, which documents the

serious or repeated violation of obligations for the functioning of the

registered church or religious society under a special legal regulation

or agreement with that state administration body.
(2) The Ministry

shall stop proceedings to cancel the authorization to exercise special

rights of a registered church or religious society under paragraph 1 if

the grounds for the proceedings ceases to exist or if the registered

church or religious society documents in writing that, through a

procedure proposed by it, the grounds for opening proceedings will be

removed in agreement with persons who were affected by the conduct which

led to opening proceedings to cancel authorization to exercise special

rights.
(3) The Ministry’s decision to cancel the authorization to

exercise special rights of a registered church or religious society

applies to all special rights under § 7 para. 1.
(4) The Ministry’s

decision to cancel the authorization to exercise special rights of a

registered church or religious society, which has gone into legal

effect, shall be sent by the Ministry for information to the Ministry of

the Interior.

1. The Constitutional Court states that the

essence of the contested provisions is the statutorily provided manner

of assigning and canceling the authorization of a registered church or

religious society to exercise special rights. The list of special rights

is legally defined in § 7 para. 1 of Act no. 3/2002 Coll., and it

includes the right to teach religion in state schools, to authorize

persons to perform clerical services in the armed forces and in

facilities where persons are being held, serving prison sentences, or

serving sentences of protective treatment or protective upbringing, to

be financed under a special regulation, to perform rites in which

religious marriages are entered into, to found parochial schools and to

preserve the duty of confidentiality of the clergy in connection with

the secrecy of the confessional. 2. The Constitutional Court takes as

its starting point the fact that the essence of religious freedom is

ensuring the opportunity of everyone to freely express his religion

without state interference. At the same time, however, the state,

thoroughly separated from churches and religious societies, can not be

obligated to actively assist in the activities of individual churches

and religious societies (similarly, see the decision of 10 April 1998,

file no. II. ÚS 227/97, the Constitutional Court: Collection of

Decisions, vol. 10, p. 447 et seq). If the legislature provides that the

state will assist the activities of religious entities, that is its own

decision, and therefore only the state is competent to set conditions

which these entities must fulfill in order to be entitled to the state’s

cooperation. The constitutional maxim for setting these conditions is

ruling out arbitrary discrimination. 3. It is evident from the nature of

the special rights that these are cases where the state permits

entitled churches or religious societies to have “above standard” claims

for a particular performance, i.e. that these are cases of an active

and positive approach by the state. Such positive performance is, e.g.

access to state financing, the right to teach in state schools, the

right to found parochial schools, and so on. Therefore, it is also

evident that the state is also fundamentally entitled to set conditions

under which individual entities will have access to this performance.

The Constitutional Court’s task is not to evaluate the suitability or

usefulness of these conditions, but only their constitutionality. In

this case, that means that the Constitutional Court had to consider only

whether any of the statutorily provided conditions exhibits features of

arbitrariness and discrimination. 4. However, in that regard the

Constitutional Court did not find characteristics of unconstitutionality

in the contested § 11 and § 21 of Act no. 3/2002 Coll. 5. However, the

Constitutional Court believes that § 21 para. 1 let. b) of Act no.

3/2002 Coll. does exhibit clear elements of unconstitutionality. Its

essence is the Ministry’s ability to cancel authorization to exercise

special rights, if a registered church or religious society does not

annually publish an annual report under § 7 para. 3 of Act no. 3/2002

Coll. The Act provides this ability in a blanket manner, that is, the

contested provision permits, e.g. removing the right of a church or

religious society to teach religion in state schools, conclude church

marriages or preserve the clergy’s duty of confidentiality only on the

grounds that the registered church or religious society does not publish

an annual report every year. In the Constitutional Court’s opinion,

this framework clearly does not observe the principle of

proportionality, under which a statutory framework would consistently

preserve a balanced relationship between the violation of a right on the

part of a church or religious society, on the one hand, and the penalty

imposed by the state, on the other hand. In this case, however, this

proportionality is not preserved, because error by churches or religious

societies in an area of an exclusively informative obligation is

followed by a penalty which, by its nature, falls into the area of

religious activity. The Constitutional Court points out that it already

presented arguments based on similar principles in the matter under file

no. Pl. ÚS 26/94 (the Constitutional Court: Collection of Decisions,

vol. 4, p. 113 et seq), and therefore, for the sake of brevity, it

refers commensurately to those arguments, despite the fact that that

finding concerned a case of a different special form of a private law

corporation – political parties and movements. 6. Therefore, the

Constitutional Court annuls § 21 para. 1 let. b) of Act no. 3/2002

Coll., as unconstitutional, due to inconsistency with Art. 16 of the

Charter.
 


VIII.
 

Income of churches and religious societies:

The text of the contested provisions:

§ 27 para. 4 and 5:

(4) The income of a church or religious society consists of, in

particular, a) contributions from natural persons and legal entities, b)

income from the sale and rent of personal property, real estate and

intangible property of churches and religious societies, c) interest on

deposits, d) gifts and inheritance, e) collections and contributions

from a part of revenues under a special act, f) loans and credits, g)

income from business or other income-producing activity, h) subsidies.

(5) The subject of business or other income-producing activity must be

defined in the founding document of a registered church or religious

society. The business and other income-producing activity of a church or

religious society may only be a supplemental income earning activity,

and the profits achieved may be used only to meet the goals of the

activities of the church or religious society.
 

The

content of the contested provision is a list of the incomes of churches

and religious societies (para. 4) and definition of the subject of

business activity of a church or religious society and the manner of

using the profits achieved (para. 5).

1. The Constitutional Court

states, first of all, that even the petitioners themselves did not in

any way explain where they see the unconstitutionality of a list of

incomes of churches and religious societies in § 27 para. 4 of Act no.

3/2002 Coll. Because this list is given in a demonstrative, not

enumerative, manner (cf. the words “in particular”), the Constitutional

Court states that this definition fundamentally corresponds to the

private law essence of churches and religious societies and, although it

can be considered redundant to a certain extent, one can not find in

that fact features of unconstitutionality (superfluum non nocet).
 

2.

Therefore, the Constitutional Court itself also found no reason to

believe that the cited provision is unconstitutional, and denied the

petition to annul it, as being groundless.
 

3.

Concerning the petition to annul § 27 para. 5 of Act no. 3/2002 Coll.,

the Constitutional Court states that the first sentence of this

provision, under which the subject of business activity and other

income-producing activity of a church or religious society must be

defined in its founding document, gives no reason for presumptions of

its unconstitutionality. In its essence, this is only an information

obligation of a church or religious society, which is legitimized by the

interests of other parties to private law relationships, and can not

therefore be interpreted as an impermissible limitation on the autonomy

of churches and religious societies. In any case, even the petitioners

themselves do not make any such claim. Therefore, this part of the

petition is also denied as being groundless.
 

4.

Under the second sentence of the cited provision, business and other

income-producing activity of a church or religious society can be only

supplemental income-producing activity, and the profits achieved may be

used “only to meet the goals of the activities of the church or

religious society.” Concerning this the Constitutional Court states that

churches or religious societies are – as a special form of the exercise

of the freedom of association – private law corporations which can

basically do everything that is not expressly forbidden by law (Art. 2

para. 3 of the Charter, Art. 2 para. 4 of the Constitution). In

accordance with Art. 16 para. 4 of the Charter, the exercise of these

rights can be limited only in cases which are necessary and are defined

by the Charter. However, in this case the act provides that a church or

religious society may use the profits achieved from business and other

income-producing activity only to meet its goals. However, Act no.

3/2002 Coll. defines these goals, in § 3 let. a), under which the

purpose of a church or religious society is “professing a certain

religious faith, whether publicly or privately, and in particular the

related association, religious services, teaching and clerical

services.” Thus, it is apparent that the contested provision makes it

impossible for churches or religious societies to use the profits

achieved in a manner other than as legally defined. This provision is

also inconsistent with Art. 11 para. 1 of the Charter.
 

5.

However, in the Constitutional Court’s opinion, this limitation clearly

does not correspond with the purpose and mission of churches and

religious societies. As stated elsewhere in this finding, the task of

these entities can not, under any circumstances, be reduced to the mere

profession of a particular religious faith – as the contested provision

de facto says – but their role in society is considerably wider and also

consists of radiating religious values externally, not only through

religious activities but also, e.g. charitable, humanitarian and general

educational activities. Therefore, limiting churches and religious

societies to freely making use of their legally obtained income only in

the area of professing religious faith is arbitrary interference on the

part of the state in the private law essence of these entities, and this

interference is clearly not legitimized by any relevant public

interest; similar arguments, although in relation to the conduct of

business by political parties and not churches or religious societies,

was used by the Constitutional Court in the matter under file no. Pl. ÚS

26/94 (finding of 18 October 1995, Collection of Decisions of the

Constitutional Court of the CR, vol.4 p. 129 et seq). Therefore

inconsistency of this provision arises with Art. 4 para. 4 of the

Charter, under which, when applying provisions on the limits of

fundamental rights and freedoms, their substance and purpose must be

preserved, and such limitations may not be used for purposes other than

those for which they were provided. 6. Therefore the Constitutional

Court annuls the second part of the sentence of § 27 para. 5 of Act no.

3/2002 Coll. due to its inconsistency with Art. 4 para. 4 of the Charter

in connection with Art. 16 para. 2 a Art. 11 para. 1 of the Charter, as

unconstitutional.

Notice: Decisions of the Constitutional Court can not be appealed.

Brno, 27 November 2002
 

 

 



Dissenting Opinion
of

judges JUDr. P. H. and JUDr. J. M. to the reasoning of Constitutional

Court finding file no. Pl. ÚS 6/02, on the constitutionality of Act no.

3/2002 Coll., on Freedom of Religion and the Status of Churches and

Religious Societies and Amending Certain Acts

We can not accept

generally those parts of the finding’s reasoning which apply to

provisions which the petitioners sought to have annulled, although the

Constitutional Court denied that part of the petition. It stated that

they are not inconsistent with the constitutional order. In several

cases of this kind the reasoning of the finding presents arguments of

such kind and composition that as a whole it does sufficiently express

the fact that the judges agreed that the cited provisions are consistent

with the constitutional order, but, on the contrary, casts doubt on

their verdict and makes it less convincing.
 

This

general comment must be applied first of all to the key provision of § 6

para. 1 of Act no. 3/2002 Coll. (the “Act”), under which a church or

religious society “becomes a legal entity upon registration under this

Act.” The finding’s reasoning claims that this provision creates a

“somewhat unclear legal situation,” which does not fully correspond to

the requirements of the European Court for Human Rights for a statute’s

understandability and foreseeability. In this regard, the finding’s

reasoning also concludes that § 6 para. 1 of the Act “at first glance”

aspires to “the registration of these legal entities having constitutive

effects, i.e. it evokes the impression that a domestic administrative

act leads to the legal creation of churches or religious societies, that

is, their general legal capacity.” That, of course, according to the

finding’s reasoning, would clearly not correspond with the nature of a

number of churches and religious societies, whose legal existence often

arises not from state law but from canon law (or international law) and

the state power therefore can not have ambitions to regulate these

institutions by law.” Despite this strong criticism, the text of § 6

para. 1 of the act the reasoning, basically without substantive

arguments, reaches the conclusion that the petition to annul it is not

justified, because its shortcomings can be overcome in a

“constitutionally consistent manner.” Thus, the reasoning’s arguments

are unbalanced, unconvincing, but also imprecise.
 

To

the claim in the reasoning that the text of § 6 para. 1 of the Act

creates an unclear legal situation, we object that the rule in it is

quite clear: a church (religious society) becomes a “legal entity” by

registration, so that without the registration it is not a legal entity.

§ 28 para. 1 adds, in a transitional provision, that “churches or

religious societies which performed their activities as registered by

law as of the day this act goes into effect are considered to be

registered under this Act.” Thus, we consider the criticism concerning

an unclear legal situation to be unjustified.
 

The

finding’s reasoning also criticizes the possible aspiration of § 6

para. 1 aimed at giving the act of registration constitutive effects,

whereas with a “number” of churches and religious societies their legal

existence arises from other normative legal systems and the state power

thus can not constitute their “general legal capacity.” As a

representative of this “number” of churches it cites the Catholic Church

(the Holy See).
 

The end of

the 18th and the course of the 19th centuries brought the overcoming of

legal particularism in European history. The passage of new democratic

constitutions was, among other things, tied to the constituting of a

secular state, a change in the source of the legitimacy of power, and

thus, in its consequences, also with the secularization of the state and

the separation of church and state.
 

The

basic purpose of law in a democratic state governed by the rule of law

is to guarantee freedom and internal peace. A conceptual prerequisite of

the legal framework of rights and obligations is their connection to

legal entities. There are no rights without rights-holding subjects;

authorizations without subjects are contradictio in adiecto.
 

The

cultural development of Europe and the corresponding development of

democratic constitutional law thought, as a consequence of the

secularization of the state, does not mean abandoning the historic

tradition of values, and in that framework religious values as well.

However, it means that these no longer institutionally exist alongside,

or inside, a democratically legitimized state power, but inside a whole,

constitutionally defined and guaranteed system of values. Only from

this viewpoint would it be possible to evaluate the constitutional

admissibility of defining the legal person status of churches and

religious societies.
 

The

state power may effective regulate the behavior of persons only by using

one of the internationally legal grounds, in particular territorial or

personal grounds (on the basis of citizenship). In contrast, it can not

aspire to regulate the behavior of persons to which its jurisdiction

does not reach. In accordance with this, Act no. 3/2002 Coll. regulates

only the behavior of those (components of) churches and religious

societies which are subject to the jurisdiction of the Czech Republic.

In that sense the act of registration is undoubtedly constitutive, as in

grants them the status of a legal entity within the reach of the

jurisdiction of the Czech state.
 

Of

course, the finding’s reasoning insists that in the case of a “number”

of churches their legal person status is established by church

regulations or other legal systems, and the Czech state then can no

longer create such legal person status, but only respect it. The

fundamental question arises which norm of which legal system orders the

Czech Republic to respect the legal person status of a church or

religious society which was constituted by another norm creator. Church

regulations can not be such a system, because a church (religious

society) is not a source of sovereign power which could compete with the

power of a state which exercise “complete and exclusive” sovereignty in

its own territory. Nor can it be the legal order of another state,

because that is prevented by the relationships of sovereign equality

between states and the principle under which, in the event of

jurisdictional conflict between several states, the will of the state

which can apply territorial grounds shall predominate as a matter of

principle. Therefore, the CR is not required to recognize such status of

a church subject to its jurisdiction as was granted to that church by

the legal order of a different state. That obligation could be created

for it only by a contractual agreement with that other state. Nor does

an obligation to recognize the pre-existing legal person status of

churches (religious societies) arise to the CR from international law.

It is not imposed on it by any norm of general international law (on the

contrary, the practice of states eloquently testifies to the absence of

such a norm), nor by any international agreements, including universal

or European covenants on human rights. Finally, an obligation to

recognize the pre-existing status of a “legal entity” also does not

arise to bodies of public power either from the Charter or from the

Constitution (Art. 16 para. 2 of the Charter regulates the circumstances

of creation of institutions within churches, and thus in the

adjudicated Act applies not to the institution of registering churches,

but to the institution of recording religious legal entities).
 

Under

these circumstances, the Czech Republic, in setting conditions for

allocating the status of a legal entity to churches or religious

societies, has at its disposal a considerable degree of discretion. The

principles of a democratic state governed by the rule of law indicate

that it may not arbitrarily prevent churches from entering the public

life of the state and that it must guarantee to all churches equal

conditions for acquiring the status of a legal entity. If the Chamber of

Deputies states that the reason for requiring registration of churches

is “to guarantee a minimum of protection to other parties in private law

relationships,” this is beyond any doubt a legitimate aim of

regulation. An application for registration is to contain conditions

which are provided by § 10 of the Act and which the Constitutional Court

did not in any way cast doubt upon in terms of constitutionality. The

institution of registration of churches is thus a constitutionally

indisputable expression of the legislature’s discretion.
 

The

finding’s reasoning clearly begins with the premise that the concept of

registration as a constitutive act of state power is inapplicable to

the Catholic Church in view of the international legal subject status of

the Holy See. From that, it then unjustifiably concludes that the

“constitutive” concept is inapplicable to all churches (religious

societies). In fact, the Catholic Church, in relation to other churches,

is a complete exception, which, therefore, can not serve as a model for

general legal regulation. Therefore, Act no. 3/2002 Coll. also could

not rationally reject the constitutive effects of registration (i.e. the

creation of a legal entity) only for the reason that one of the

churches (the Catholic) derives its status from the international legal

subject status of the Holy See and accordingly from canon law. The

Catholic religion is the only one which simultaneously aspires to

universality and functions under the head of the spiritual government of

the Holy See, unconnected with the secular government of any state.

Therefore, the question of international legal person status is posed

exclusively with the Holy See (L. Le Fur: Nástin mezinárodního práva

veřejného. Orbis, Praha, 1935, p. 150-151). In contrast with the claim

of the finding’s reasoning, in fact, no “number” of other churches

exists whose position in the question of legal person status would be

comparable with the Holy See.
 

The

Holy See has a status comparable to that of a state, although it is not

a state. The CR recognizes its legal person status under international

law, although it has not yet concluded with it the international

agreement which is being prepared (not an “inter-state” agreement, as

the Czech Conference of Bishops erroneously claims in its position

statement). The CR recognized the Holy See through the existence of

diplomatic relations (between Czechoslovakia and the Holy See) until

1950, their renewal in April 1990, and their continuation until the

present. In the absence of an international agreement between the CR and

the Holy See, one can not rule out the existence of bilateral customary

norms which arose hitherto in their mutual practice (the violation of

this practice in totalitarian Czechoslovakia need not be considered an

obstacle which would make the settling of any customary rules

impossible). If such customary rules existed, the CR would have to

respect obligations arising from them as an international obligation

(see Art. 1 para. 2 of the Constitution). Of course, seeking such

possible rules goes beyond the framework of the finding and its

reasoning.
 

The international

legal personhood of the Holy See is a substantial distinguishing

element of the Catholic Church compared to other churches. Therefore,

the question arises, whether and to what extend the general rules in Act

no. 3/2002 Coll. should be applied to the Catholic Church. Differences

in religions are not grounds for different treatment in terms of

fundamental rights and freedoms (Art. 3 para. 1 of the Charter).

However, equality is not an absolute category. Different treatment is

admissible, if it is based on objective and reasonable grounds. The fact

that the Holy See is a subject of international law, which the CR has

recognized, is undoubtedly an “objective” reason for different treatment

of the Catholic Church in various issues regulated by Act no. 3/2002

Coll. This is also testified to by, e.g., § 106 para. 2 of the

Constitution of the CSR of 1920, which permitted deviations from the

principle of equality “if they are permitted by international law.” In

other words, if the Agreement between the CR and the Holy See on the

Regulation of Their Relations is concluded, this international law

instrument can, in relation to the Catholic Church, regulate various

issues regulated generally in Act no. 3/2002 Coll. in a manner which is

different from the Act. With the application of Art. 10 of the

Constitution as amended by constitutional Act no. 395/2001 Coll., a

special contractual legal framework is applied, not the general

statutory one (lex specialis).
 

“Reasonableness,”

and especially “commensurateness” of deviations from the principle of

equality in relation to the Catholic Church are concepts which have a

constitutional dimension. Evaluating them is, among other things, up to

the Parliament of the CR, which gives approves international agreements

under Art. 49 of the Constitution, and, finally, up to the

Constitutional Court, if it were to receive a petition to evaluate the

consistency of the Agreement between the CR and the Holy see with the

constitutional order under Art. 87 para. 2 of the Constitution.
 

Under

§ 6 para. 2 of the Act on Churches and Religious societies (the “Act”),

annulled by the Constitutional Court’s finding, churches and religious

societies may, if registered, found a religious legal entity “for

purposes of organization, profession and propagation of religious

faith.” The transitional provision of § 28 para. 5 of the Act provides

conditions under which a registered church, after the Act goes into

effect, is required to complete information about legal entities founded

by it and already recorded, in accordance with the particulars required

by Act no. 3/2002 Coll.
 

The

majority vote considers the ratio decidendi of annulling these

provisions to be the right of churches and religious societies to found

religious orders and other religious institutions independently of state

bodies (Art. 16 para. 2 of the Charter). These provisions, according to

this vote, do not distinguish between registration and recording of

legal entities, and are therefore limiting to a church or religious

society in the aggregate: “In the Constitutional Court’s opinion, these

provisions directly give rise to subjecting the legal coming into

existence of religious legal entities to a state decision, i.e. de facto

registration of them, even though in the Act it is formally described

as recording.” However, in relation to the petition to annul § 16, § 20,

§ 26 and § 29 of Act no. 3/2002 Coll., the finding’s reasoning states

that “recording is appropriate, in particular in terms of fulfilling an

information function and the function of protecting the rights of third

parties,” and that after the annulment of § 6 para. 2 and § 28 para. 5

of the Act, § 16, § 20, § 26 and § 29 “do not condition the legal coming

into existence and termination of religious legal entities on a

constitutive legal act by a state body, but the recording is only of a

declarative nature and performs the specified functions of providing

information and protecting the rights of third parties.”
 

In

relation to § 6 para. 2 of the Act the majority vote ignores the most

significant grounds for annulment; as a result, the majority vote could

thereby establish an even higher degree of uncertainty for churches or

religious societies concerning legal entities founded by them.
 

The

purpose of § 6 para. 2 of the Act is to define the purposes for which a

church or religious society is authorized, under Act no. 3/2002 Coll.,

to found legal entities. If this goal is limited to “organization,

profession, and propagation of religious faith” and does not contain

related activities that are charitable, cultural, social care and so on,

such a definition must be considered inconsistent with Art. 16 para. 2

of the Charter. The interpretation of the purposes arising from Art. 16

para. 2 of the Charter is given by the conceptual connection of

organization, profession, and propagation of religious faith with a

cultural, charitable and social role, as has developed in the European

cultural tradition, and therefore also arises from a comparative legal

viewpoint. Therefore, we do not consider the decisive reason of this

opinion in relation to k § 6 para. 2 of Act no. 3/2002 Coll. to be the

inadmissibility of what the majority vote claims to be “subjecting the

legal coming into existence of religious legal entities to a state

decision,” but the limitation of purposes for founding religious legal

entities.
 

The majority vote

establishes legal uncertainty insofar as by deleting § 6 para. 2 of the

Act without requiring it to be replaced by a new wording which would

define goals in a manner consistent with Article 16 para. 2 of the

Charter, the definition of purposes, the consequence is lack of

interpretive clarity in defining the activities of a religious legal

entity under § 16 para. 2 let. b) of the Act, with the risk of a

restrictive interpretation, and thus also the risk of a penalty under §

16 para. 5 of the Act .
 

Analogous

arguments also apply to the evaluation of constitutionality of § 28

para. 5 of the Act. If the majority vote justifies its annulment by the

impermissibility of state interference in the authorization of churches

and religious societies to found religious legal entities, a consequence

of this legal opinion would be, in our opinion, legal inequality with

regard to the requirements of recording religious legal entities

established after the Act goes into effect and those which were

established previously. Without anything further, one can not see in the

legislative requirement for creating uniform records any grounds for

inconsistency between the statutory provision at hand and the

constitutional order. However, the disproportionately short deadline for

meeting the requirements contained in that provision, can be seen as

such grounds, particularly with churches with a large number of

religious legal entities, as can the penalty, disproportionate to the

gravity of possible unlawful conduct, consisting of not submitting all

the particulars required for recording of religious legal entities. In

our opinion, only the potential degree of this disproportion in the

deadline and penalty are grounds for inconsistency of § 28 para. 5 of

the Act with Art. 16 para. 2 of the Charter.
 

As

the Constitutional Court expressed a different ratio decidendi in this

matter, the authors of this separate vote are making use of this

dissenting opinion only to the finding’s reasoning, as they share the

opinion of the majority vote in the matter itself.

Brno, 29 November 2002