The Constitutional Court found No 4 / 2003 Coll.
The Constitutional Court found of 27 November 2002 on the application for annulment of Act No. 3 / 2002 Coll., on the Freedom of Religious Religion and the Status of Churches and Religious Societies and on the amendment of certain laws (Act on Churches and Religious Societies), or on the abolition of certain provisions of this Act
Valid
4
FIND
The Constitutional Court
On behalf of the Czech Republic
On 27 November 2002, the Constitutional Court decided in plenary on the proposal of a group of senators to abolish Act No. 3 / 2002 Coll., on the Freedom of Religious Religion and the Status of Churches and Religious Societies and on the amendment of certain laws (Act on Churches and Religious Societies) or on the abolition of certain provisions of this Act
as follows:
I. Paragraph 6 (2), § 21 (1) (b), § 27 (5) second sentence in part "and the profit achieved may only be used to meet the objectives of the activities of the church and religious society" and § 28 (5) of Act No. 3 / 2002 Coll., on the freedom of religion and the status of churches and religious societies and on the amendment of certain laws (Act on Churches and Religious Societies), is hereby repealed.
II. In other parts, the application is rejected.
Reasons
On 13 February 2002, the Constitutional Court received a proposal from a group of 21 senators of the Senate of the Parliament of the Czech Republic to abolish Act No. 3 / 2002 Coll., on Freedom of Religious Religion and the Status of Churches and Religious Societies and on the amendment of certain laws (Act on Churches and Religious Societies). If the Constitutional Court does not comply with the application, a group of senators proposes the annulment of certain provisions of Act No. 3 / 2002 Coll., either of the provisions of § 6 paragraphs 1 and 2, § 11, § 16, § 20, § 21, § 22 paragraph 1 (d), § 26, § 27 paragraph 4 and § 5, § 28 paragraph 5, § 28 paragraph 2 (f) and § 29 in the section "and the Register of Church Legal Persons" (so-called "cancellation"), § 26 paragraph 2, § 5, and, paragraph 5, § 20 (1) (f), § 21 paragraph 1 (b), § 22 (d), § 26 paragraph 1 (b), § 11 paragraph 1 (b), § 16 paragraph 2 to (c), § 20 (5), § 20 paragraph 1 (f), § 21 paragraph 1 (b), § 21 (b), § 22 paragraph 1 (d), § 11 (b), § 11 (b), § 11 (d), § 11 (b), § 11 (c), § 16, § 16 paragraph 5, § 16 to (5), § 20, § The appellants consider that the contested law as a whole, or its individual provisions as mentioned, contravenes the provisions of Articles 4 (4), 15 and 16 of the Charter of Fundamental Rights and Freedoms ("the Charter '), Article 18 of the International Covenant on Civil and Political Rights (" the Pact'), Article 9 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') and Article 1 of the Constitution of the Czech Republic (" the Constitution').
First of all, the appellants point out that Act No. 3 / 2002 Coll. reduces the standard of protection of freedom of religion and brings to the private sphere of citizens unnecessary state interference. Already at the stage of drafting the bill, a number of reservations were made by political and church bodies, and the adoption of the law in the legislative process did not take place smoothly, because it was rejected by the Senate and, after its repeated adoption by the Chamber of Deputies, it was returned by the President of the Republic to this institution. The contested law inaccurately paraphrases Article 16 (1) of the Charter in § 4 (3), mentions the reference to the Charter in a footnote and does not provide any vacatio Legis, although it significantly changes the obligations and powers of the administration and the legal status of a number of entities. In addition, this change results in a break in legal continuity, which may have adverse consequences for these entities.
In their proposal, the appellants are based on the fact that, pursuant to Articles 15 and 16: The Charter cannot restrict and interfere with the freedom of religion if it does not threaten the rights of others, but must only protect it, which is a typical example of the concept of a negative status, where the State does not need to help the implementation of these rights by active activities, but must not interfere. It follows that the rule of law for churches and religious societies (hereinafter referred to as "churches') can in principle only be imposed by the State if, at the same time, churches and religious societies receive something from the State. However, this concept of the contested law does not fully reflect the fact that it does not respect the arbitrary position of churches which is different from other legal persons of private law, in view of the historical reasons and the social importance of churches and religious societies, whose activities cannot be reduced to negotiations linked to the recognition of a certain belief, because these institutions perform a number of other tasks which are inalienable and irreplaceable in their consequences from the point of view of the State and society, including those which are outside them. Therefore, according to the appellants, the State should grant churches and religious societies a certain privileged position, but it does not, and on the contrary, puts them at a disadvantage over other legal persons. Effective activities of churches and religious societies require diverse organisational forms, which do not meet the concept of informal associations of common faith. In the appellants' view, these institutions should have the right to create different organisations with legal personality, as is apparent from Article 16 (2) of the Charter, according to which churches and religious societies may establish church institutions which are subject to church law by virtue of their rules and not by virtue of rules laid down by the State. The State cannot determine when the legal personality of churches arises or which church institutions may have legal personality granted to them by religious and religious societies and which do not. However, Paragraph 6 (1) of Act No. 3 / 2002 Coll. expressly states that church legal persons become a legal person by registration under that Act (or by analogy with Article 28 of Act No. 3 / 2002 Coll. fiction that they were registered). Although there is talk of the registration of such legal persons, their registration is actually carried out as a register of religious legal persons is established. Moreover, according to the appellants, it is impossible to allow the State to deprive these legal entities of legal personality, as provided for in Article 26 (2) of Act No. 3 / 2002 Coll. Nor can we agree with the authority of our state to grant legal personality to the well-established churches abroad as this regulation is much stricter than that of foreign entrepreneurs in the Czech Republic. This, in consequence, results in a breach of Article 16 (2) of the Charter, since the law makes the formation of religious legal persons subject to a decision by a State body, thus limiting the said freedom far beyond the constitutionally permissible framework.
The group of Senators further argues that the It is clear that the freedom of the Church and of the religious society to create church institutions cannot be reduced only to the establishment of institutions that do not have legal personality but to institutions that are gifted in legal capacity, which results from the mission of those institutions whose importance is not comparable to that of ordinary private law associations. In view of this, the striking comparison of Act No. 3 / 2002 Coll. with Act No. 83 / 1990 Coll., on the bringing together of citizens, as amended, which allows civil society - unlike churches and religious societies - to establish so-called organizational units as secondary legal entities which have their own legal personality, although dependent on the legal existence of the association. Although Article 16 (4) The Charter allows the Church and the Church Society to be restricted in the creation of church institutions, Act No. 3 / 2002 Coll. does not come from constitutional cauties in this article, since, if the legal formation of church institutions is not subject to registration, the protection of public security and order, health and morality or the rights and freedoms of others could not be jeopardised. For this reason, the contested regulation is a violation of the prohibition of indiscretions by public authorities. This does not respect the principle of self-restraint of the State in intervening in the freedom of religion, according to which their substance must be investigated when limiting fundamental rights and freedoms, and meaning and limitations cannot be misused for purposes other than those for which they have been established (Article 4 (4) of the Charter).
The appellants also challenge Article 6 (2) of Act No. 3 / 2002 Coll., which limits churches and religious societies to establish religious legal persons solely for the purpose of organising, confessing and disseminating religious beliefs, because they do not remember a whole series of activities such as charitable, humanitarian, medical, etc., which they have done so far. By limiting the scope of their activities, churches are essentially excluded from society. The group of Senators also considers that the legislation contained in Section 26 (4) of Act No. 3 / 2002 Coll., according to which the obligation of the "church legal entity" is to guarantee the church or religious society which proposed it for registration, as it significantly disadvantages the creation of such persons against the establishment of legal persons under the Commercial Code, as well as the establishment of secondary legal persons of civil associations.
The appellants further refer to Article 27 (4) and (5) of Act No. 3 / 2002 Coll., which limits the autonomy of the Church and the religious society guaranteed by Article 16 (2) of the Charter. In addition, this provision is intrinsically contradictory, since, according to Article 27 (5) of Act No 3 / 2002 Coll. the churches and religious societies are allowed to do business, but at the same time it prevents that provision of business, as it provides that the profit achieved can only be used to meet the objectives of the Church and the religious society. All written-off capital goods can only be acquired from the profits of a legal person and must be acquired by profit in order for the church to acquire assets for business. Therefore, it cannot continue to do business and procure means of production when all profits are forced to be used to fulfil its objectives and not to further business.
Finally, a group of Senators considers the provision of § 11 of Act No. 3 / 2002 Coll., which makes it conditional on the authorisation to exercise special rights to the Church and the religious society by having to fulfil their obligations to the State and to third parties properly and publishes annual reports, which effectively introduces state supervision of the private financing of the Church and the religious society, even at a time when they receive no State contributions. With regard to Article 21 (1) (a) and (b) of Act No 3 / 2002 Coll., which lays down the conditions for the withdrawal of this authorisation, where churches seriously or repeatedly infringe obligations towards the State or other persons, or where they do not publish an annual report, the appellants consider such arrangements to be a breach of the principle of proportionality, because, because of financial debts, the State may restrict the financing of the church and religious society, but cannot prohibit the exercise of other rights (e.g. teaching religion, concluding marriages) or abolishing their legal personality. In addition, that provision provides for the possibility of arbitrary decision-making by the competent authority, since it is sufficient to initiate proceedings in these cases for the administrative authority to claim the existence of certain obligations without, for example, their final declaration by the court. This regulation discriminates against churches and religious societies against business entities and civil associations. The same applies to the provisions of Section 22 (1) (d) of Act No. 3 / 2002 Coll., according to which the Ministry will initiate the procedure for the revocation of registration, unless the authorities or those authorities have been appointed for more than 2 years, their term of office has expired and new ones have been established because the Commercial or Civil Code for such infringement does not provide for any penalty. For the reasons set out above, a group of senators proposes to repeal the entire Act No. 3 / 2002 Coll., due to its overall concept of restrictive rights guaranteed by superlegal standards and reducing the standard of protecting religious freedom against prior regulation. Should the Constitutional Court fail to comply with this proposal, a group of senators proposes the abolition of the incriminated provisions of Act No. 3 / 2002 Coll.
The Constitutional Court finds that the application lodged fulfils all the legal procedural requirements and conditions, and nothing prevents the hearing and decision of the matter from being taken. Therefore, pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "Act No. 182 / 1993 Coll. '), he called on the parties - the Chamber of Deputies and the Senate of the Parliament of the Czech Republic - to comment on this proposal.
The Chamber of Deputies, through its President, stated in its observations that, as can be concluded from Article 9 of the Convention, Article 15 (1) and Article 16 of the Charter, the State cannot in any way interfere with the internal beliefs and religion of an individual. However, the State may legally intervene in the speech (i.e. external forms) of this belief or religion if it is carried out in the prescribed form, i.e. worship, teaching, the conduct of religious acts and the preservation of ceremonies. The form is defined taxiously, and none other, such as business, charity, but health activities have nothing to do with freedom of belief and religion. Moreover, in the framework of the non-interference and protection of that freedom, the State is obliged, inter alia, to protect the rights and freedoms of others. In order to protect the property rights or rights derived from it with an entity entering into a private legal relationship, such an entity should be able to know on the basis of which and how a legal person has been established, the capacity to acquire rights and obligations, and from when it has that capacity, its name, its registered office and who is entitled to act as a legal person. This can happen in the case of legal persons, if they are registered by law. It can therefore be said that the requirement of registration in nothing limits all rights associated with freedom of belief and religion, as a distinction must be made between the public interest and the sphere of private law. In this context, it points to the decision of the European Commission on Human Rights of 2 April 1990 in a similar case (complaint No 13712 / 88 Serbisch-Griechischisch-Orientaliche Kirchengemeinde zum Heiligen Sava v Vienna v Austria).
On the individual objections, the Chamber of Deputies stated that it could not generally be established that the contested law provides for a stricter regulation than the previous law, because that is not the case in many points. Above all, however, only constitutional order, or an international treaty pursuant to Article 10 of the Constitution, and not an earlier law can be a benchmark for comparison. The claim about the privileged status of churches or even the import of such a constitutional principle does not correspond to the state of de Hotlata, and cannot be enforced through the judicial control of constitutionality. It is also not excluded that such status of churches would not be in accordance with constitutional order, in particular Article 2 (1) of the Charter.
To the objection that it is contrary to Article 16 (2) of the Charter, if the law gives the right to equip church institutions with legal personality, according to the Chamber of Deputies this is a misunderstanding of the relationship of the Czech legal order with the legislation of individual churches. This provision is not a reception standard whereby the laws of the churches become an autonomous part of the Czech legal order. Religious legal orders are only internal regulations of churches, which are from the point of view of the Czech legal order only legal facts which are respected by it to the extent compatible with it. From Article 16 (2) The Charter also shows that it focuses on the internal activities of churches and religious societies, not on activities directed outside churches. On the contrary, it cannot be concluded that the State confers the status of legal persons directly to the churches and their institutions. In this context, the Chamber of Deputies stressed that the authorities of the State did not have and do not have any discretion over the acquisition of the status of legal entities of sui generis, it is a registration scheme and not an authorisation scheme. Act No. 3 / 2002 Coll. shows effects only within the framework of the Czech legal order, it does not in any way affect the legal personality of churches according to church rules, including the legal order of the Catholic Church as a body of international law sui generis or according to the laws of foreign states. The reason why Czech law sets conditions is to guarantee the minimum protection of other participants in private property relations. For this reason, churches cannot themselves equip their institutions with legal personality in the rule of law, but only the rule of law must do so. Although another regulation model is possible, such as the granting of the status of public corporation to churches or the reception of church standards into the Czech legal order, it is a matter for the legislator to choose which way of regulation.
If the appellants state that Law No 3 / 2002 Coll. makes it impossible for churches and church institutions to operate health and social services facilities, this is not the case because the law does not regulate the rights of this kind at all. Churches and ecclesiastical institutions which have acquired the status of legal persons are considered to be private corporations, for which the principle of 'all is permitted' applies, so that they can carry out those activities under the same conditions as other entities. In addition, according to § 6 (3) of Act No. 3 / 2002 Coll., the list of activities of registered churches is merely demonstrative.
With regard to the limitation or exclusion of the business activities of churches and church institutions, § 27 (4) of Act No. 3 / 2002 Coll. is also a demonstration, so that churches may also have income that is not mentioned there. Paragraph 27 (5) of Act No 3 / 2002 Coll. provides that the profit from the business or other gainful activity may be used to meet the objectives of the church's activities, but this does not mean that it cannot be used for further business, but investment thus acquired must be used to achieve the objectives of the church's activities. In relation to the objection that Act No 3 / 2002 Coll. indirectly - by virtue of Articles 11 and 21 (1) (a) and (b) - introduces state supervision of the financing of churches, the Chamber of Deputies states that the provisions cited concern the granting of authorisations for the exercise of special rights, i.e. to grant privileged status to other churches and to the detriment of the State, which corresponds to the increased requirements imposed on the granting of such status.
The Chamber of Deputies further states that Article 18 of the Pact and Article 9 of the Convention refer to religious freedom as an individual right and therefore there is no reason to object to their contradiction with Act No. 3 / 2002 Coll. where this law regulates the rights of churches as collective entities. In addition, the date of application of Constitutional Law No 395 / 2001 Coll. is to be dealt with only by an obstacle to the application of the law, not by a legal reason for its annulment. On the other hand, that party adds that the proposal is also challenged by Act No. 218 / 1949 Coll., on Economic Security of Churches and Religious Companies by the State, as amended, but that Act is not designed to be annulled, nor does it state what its unconstitutionality consists of. Furthermore, if it is pointed out that the reference to the Charter is contained in the footnote to Act No. 3 / 2002 Coll., this remark does not have a regulatory character and its purpose is to clarify the legal order. As regards the objected inaccuracy of the citation of the text of Article 16 (2) of the Charter in § 4 (3) of Act No. 3 / 2002 Coll., this is merely an indication of the obvious fact which follows from the logic of the case.
In conclusion, the Chamber of Deputies points out that, in the event of the repeal of the law as a whole, the repealed Act No. 308 / 1991 Coll. on the Freedom of Religious Faith and the Status of Churches and Religious Societies, and No. 161 / 1992 Coll., on the Registration of Churches and Religious Societies would again apply, thereby discounting in the Registration of Churches. In case of compliance with any of the proposals for the annulment of the partial provisions of Act No. 3 / 2002 Coll., this Act would be deformed to the limit of applicability, which would be a contradiction with the rule of law.
The Senate expressed its views on the proposal of a group of Senators through its President. He stated that, when discussing the law in committees, the legislation in question was criticised mainly by churches and religious societies. The representatives of the so-called traditional churches held the view that there was a restriction on the level of protection of religious freedom and the right to decide on their internal affairs in relation to the establishment and abolition of their institutions, and that, by introducing administrative measures and controls, the churches were given the role of subordinate state organisations. The main reservations were then directed against the regulation of so-called church legal entities as regards their social and charitable activities and the regulation of the business activities of churches. Representatives of the so-called smaller churches then pointed to the limitation of the possibility of obtaining special rights under § 7 of Act No. 3 / 2002 Coll. These views have also been made by some senators. Those objections were argued against by the legislature that the exclusive competence of churches and religious societies is fully maintained by law and the freedom of religion is guaranteed, that the law deals with the regulation concerning the legal personality of churches and bodies established by them in the form of registration of churches and religious societies, or the registration of religious legal entities in the relevant registers, in order to ensure the legal certainty of third parties, and that the exercise of special rights, when the church enters the public sphere, may be granted after a certain period of registration and fulfilment of specified conditions. The representatives of the petitioner further pointed out that the legal arrangements do not affect the rights and obligations which the churches have or may acquire on the basis of the fulfilment of the conditions under the special laws under which the conditions laid down apply to all legal or natural persons. In view of the fact that a number of important bodies to whom the legislation in question is addressed were found to disagree with it when the contested law was discussed in the Senate, and that the present legislation was more appropriate, the view that the draft law should be rejected was far outweighed.
In conclusion, the Senate points out that, in the event of the repeal of the Law by the Constitutional Court, it would be necessary to allow sufficient time for the adoption of a new legal regulation, as it would not be obvious, for example, which churches or religious societies are registered, with a number of specific laws based on this institute. A similar situation would arise in the event of the annulment of only some of the contested provisions, regardless of whether it would be a narrower or wider option, since, given the close interdependence of the individual provisions, the law would become inoperable and hardly applicable.
The Constitutional Court also requested the opinion of the Ministry of Culture. The State body referred to the principle of sovereignty and sovereignty of the State in relation to churches and religious societies, which implies that the internal regulation of these institutions cannot compete with the rule of law of the State. The democratic foundations of the state, or the principle of equality and the rule of law, would be hampered by the privileges granted to certain churches which do not represent the majority of the population and, moreover, the majority aspect does not justify the granting of such privileges. Consequently, the Ministry of Culture draws attention to the fundamental difference between the protection of individual rights and freedoms enshrined in Articles 15 and 16 of the Charter and the modification of churches and religious societies under Act No. 3 / 2002 Coll. Moreover, the intervention or control of the state over churches under this law is at a significantly lower level than in other Western European states.
If the promoters see a threat to the freedom of religious faith in limiting the various activities of church institutions, comparing the Church's treatment with the status of foreign business entities, according to the Ministry of Culture, the legislator does not regard churches as business entities for the difference in their activities and therefore the different approach is legitimate. Furthermore, the appellants are based on a misconception of the concept of a legal person by identifying the formation of a church with its formation as a legal person; they are based on the notion that the existence of the Church, its institution or body depends on the status of a legal person. This is not the case, and the formation of the church, its religious activity and internal organisations are not subject to state power, as is apparent from Article 4 of Act No. 3 / 2002 Coll. On the other hand, legal personality is an institution of private property law which allows a certain social service to acquire rights and obligations on its behalf. In addition, the recognition of legal personality which is most favourable to churches does not concern only such a body, but all participants in private law relations to which legislation must guarantee minimum legal protection, such as under Article 11 of the Charter.
The Ministry of Culture further points out that in the proposal there is a mixing of the term "church institution" with the term "church legal person." The church institution is, pursuant to Article 16 (2) of the Charter of Institutions arising within the Church, with which Act No. 3 / 2002 Coll. nor does it provide for the obligation of its registration, as is apparent from Article 6 (2) thereof. However, there is nothing in that article about the creation of an institution in the church creating a legal person according to the Czech legal order. By contrast, the "church legal person 'is the concept introduced by Act No. 3 / 2002 Coll. for bodies of churches which are registered in the Ministry, with this special register respecting the various organisational forms of the church, and giving rise to churches in that it allows, in addition to the usual legal forms under the law, to create additional legal persons. It is not true that the churches cannot establish, for example, hospitals or charities under Law No 3 / 2002 Coll., only under Article 16 (2) of the Charter and Article 6 (2) of Law No 3 / 2002, because they are not directly linked to the exercise of religious freedom; This is all the more true for business cases. Therefore, as regards activities which do not serve to exercise the right to freedom of religion and the right to express their faith freely, a general and identical legal regime must apply. It is considered particularly dangerous by the Ministry of Culture that the State cannot be entitled to grant legal personality under its legal order to churches established abroad. This is because there could be dangerous religious groups on the territory of the Czech Republic whose activities fulfil all the characteristics of § 5 of Act No. 3 / 2002 Coll., and the State would not be able to intervene against them, thus threatening the sovereignty of the state and may lead to a breach of the constitutional order of the Czech Republic.
The Ministry of Culture also points out that Act No. 3 / 2002 Coll. fully maintains the high degree of religious freedom given by the Charter, and even the appellants themselves do not give any example of its actual restriction. On the contrary, it liberalizes access to registration for small churches and ensures the protection of third-party rights. For these reasons, the Ministry of Culture considers that the Constitutional Court should reject the proposal.
The Constitutional Court also requested the opinion of the Ecumenical Council of Churches in the Czech Republic. According to its observations, although the draft law permits the creation of certain institutions, the State, through § 6 (2) and (3), § 27 (4) and (5) and § 26 (1) and (2) of Act No 3 / 2002 Coll. may determine what church institutions are and can and cannot do, may determine, within the framework of supervision, what the Church can use its profit for and even disturb the Church and its institutions at the initiative of the Ministry. At the same time, churches limit the fact that they can register as a legal person only an institution established for the purpose of organising, confessing and disseminating religious faith, thereby excluding the activities of churches, which since the beginning form their inseparable content, which is also intended for non-members of the church. As a result, a unclear legal position is, for example, the Diakonia of the Evangelical Churches or the Catholic Charity, which may put the service of needy fellow citizens at risk. In addition, the Czech legal order does not offer other appropriate legal forms enabling indivisible spiritual and material service, because if these institutions become a civil society or a community of general interest, legislation does not allow churches to establish them. Act No. 3 / 2002 Coll. interferes with the inner church structure, according to which churches have been recognised by the state, as is the case, for example, with the Czech Brotherhood Church, when essentially the church part established by its internal law is disturbed. It is further pointed out that the liability of the church as a whole for the obligations of the church legal person constitutes a new element of collective responsibility, and this situation then brings problems where the basic unit is religious communities which have been brought together for the purpose of mutual cooperation, as is the case with the Brotherhood Unity of Baptists. This excludes the possibility of organizing itself under its own internal rules. The obligation to record data and their changes to the members of the statutory bodies should also be regarded as an intervention in the internal church structure, which constitutes an increase in administration, since there may be up to 24 persons for each of the several hundred parishioners who are required to be notified and, moreover, they often change. As a result, the state is forcing changes in the internal rules of the churches under which they have worked legally.
Act No. 3 / 2002 Coll. also reduces the standard of protection of believers on the basis of Article 2 (1) of the ecumenical Council of Churches in the Czech Republic, does not provide the possibility for church associations to propose a religious legal person for registration and does not allow for the existence of associations of religious legal persons at local level, thereby limiting ecumenical cooperation. There is also a disadvantage for churches over other entities as a result of restrictions on business, as profit must not be used to invest in gainful activities. The ecumenical council of churches in the Czech Republic also points out that in the exercise of special rights it is a condition for publication of annual reports, but the content of which is not specified. Also, the sanctions under Act No. 3 / 2002 Coll. do not have an equivalent with other entities, there is an introduction of control over churches, where the State can, by virtue of its administrative measures, cause the demise of a religious legal person in the event of its socially dangerous activity instead of being dealt with by criminal law. The area of employment relations with regard to the problematic link to Act No. 218 / 1949 Coll. is not sufficiently resolved, it is also curious that the Minister may grant permission to special rights under § 7 of Act No. 3 / 2002 Coll. outside the conditions set out in § 11.4, i.e. outside the provisions of Act No. 3 / 2002 Coll. Because of these reasons, the ecumenical council of churches in the Czech Republic supports the draft group of senators.
The Constitutional Court also requested the opinion of the Czech Bishop's Conference, which expressed the view that the contested legislation is backward from the previous step and leads to restrictions on fundamental rights and freedoms. In her view, there is no reason to put churches under more extensive state supervision and control and to restrict their responsibilities in dealing with internal affairs. Act No. 3 / 2002 Coll. even prevents the Church from acting - under the legal form of religious persons - in the fields of social, charitable and medical care. These services have always been an integral part of the life of the Church, where many voluntary workers and financial donors support these activities precisely because they are church activities, not federal or otherwise. Withdrawal of the status of religious legal entities to charities will lead to the loss of interest in working with them and supporting them, also because the churches will lose control of them if new public-benefit societies or civil associations have to emerge instead. Moreover, this step will drain the funds that could be used for social activity and reduce their prestige in the Czech Republic and abroad. The Czech Bishopric Conference also argues that the State accepted both its basic document and the Code of Canon Law as its internal standard, which foresees the creation of charitable and other organizations. The new law became directly contrary to this internal standard, as well as the previous administrative acts of the Ministry of Culture.
Act No. 3 / 2002 Coll. also allows the state administration to grant and withdraw legal personality to religious legal persons, which can be considered as an unnecessary and unfounded attempt by the State to overregulate civil society components. On the question of the status of canonical law in our legal order, the Czech Bishop Conference stated that the church merely requires the competent state authority to respect the internal rules of the church and, if there is an objection to some of the provisions of these internal rules, it should incorporate them into the forthcoming interstate agreement between the Czech Republic and the Holy See. It also points out that the legislation of Western European states cannot be compared directly to the new law, as it is older legislation, and the churches had the opportunity to adapt to the requirements of the state without negative effects on their activities.
The Czech Bishopric Conference also states that the State may, by virtue of Act No. 3 / 2002 Coll., be more likely to interfere in the life of the Church. It is, in particular, an obligation to issue an annual report in the exercise of special rights, the introduction of a supervisory and penalising role of the State in the breach of the obligations of churches towards the State and third parties, where the State may penalise the whole Church for errors committed by some of the church's legal entities, the removal of special rights, the introduction of a full-church liability for the obligations of church legal entities, which, in combination with sanctions under the Law on Monumental Care, could lead to bankruptcy of many parishes unable to finance the repair of their churches, and ultimately to the oppression of the whole Church by economic sanctions. There is also an increase in administrative complexity, for example when entering data and changes to statutory bodies. Furthermore, the contested law limits churches to making profits which must not be used to invest in gainful activities, resulting in economic discrimination and allowing the state authority to control the Church's management. The expression also mentions the problematic wording of certain manifestations of religious freedom within the meaning of Article 2 (3) of Act No. 3 / 2002 Coll., the discriminatory authority of the government to grant, pursuant to Article 27 (8) of Act No. 3 / 2002, an exception to the law and the problem of the legal personality of church schools to world religions. In view of the above, the Czech Bishop Conference believes that the situation requires protection from the Constitutional Court.
The expression of the Czech Bishopric Conference was accompanied by the expression of the Association of Czech Catholic Charities, which is the purpose of the Roman Catholic Church and a legal person according to the Code of Canon Law and Act No. 308 / 1991 Coll. This facility provides charitable, humanitarian, health, education and social services to a considerable extent, and recognition of its importance by the state authorities also shows that the state authorities contribute to its activities through high subsidies. It is pointed out that Law No 3 / 2002 Coll. requires separate religious legal persons who are not set up to satisfy the religious needs of believers and evangelisation in order to re-register as civil associations or public-service societies, thereby undermining their close links with churches. The necessity of such a connection is then demonstrated in the observations on individual cases. In Charity's view, this facility relies on a spiritual connection with the church, expressed in particular in an organisational structure that enables this specific function to be implemented. A guarantee that a spiritual dimension will be preserved is not only the influence of the Church on the appointment of statutory bodies, or the President of Charity, but also the very introduction of organisational elements into the overall organisational structure, which allows their cooperation on national dimension projects as well as the independent action of individual Charites according to local needs. This organisational structure can be distorted by Act No. 3 / 2002 Coll. and the change of legal form will bring administrative and financial burdens.
The Constitutional Court first examined, in accordance with Article 68 (2) of Law No 182 / 1993 Coll. whether the law in respect of which the appellants object to its unconstitutionality, possibly the unconstitutionality of its individual provisions, was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner. In this respect, it follows from the report of the 38th session of the Chamber of Deputies held on 21 September 2001 that the Chamber of Deputies, by a majority of 107 votes out of 172 Members present, with 59 votes against and 6 abstentions, approved the bill (Resolution 1732). Following the rejection by the Senate of the Act, which took place at the 10th session of 25 October 2001 (Resolution No 190), the Chamber of Deputies, according to the shorthand report of the 43rd meeting of 27 November 2001, insisted on the draft act, when 119 Members were voted out of the 189 Members present for the Bill, 61 Members opposed and 9 abstained (Resolution No 1861). After that, the law was returned by the President of the Republic and the Chamber of Deputies at its 43rd meeting on 18 December 2001, the law was re-approved when of the 179 Members present, 121 Members voted in favour of the bill, 48 Members opposed and 10 abstained (Resolution No 1981). On 7 January 2002 the law was declared in the Collection of Laws. It is clear from this that Law No 3 / 2002 Coll. was adopted and issued in a constitutionally prescribed manner and within the limits of the Constitution, in compliance with the quotas provided for in Article 39 (1) and (2) of the Constitution.
The Constitutional Court, when examining the motion of a group of senators, first of all feels the need to address the constitutional principles of religious freedom in the constitutional order of the Czech Republic, in general and at least briefly. In this respect, it is based in particular on the following.
The Czech Republic is based on the principle of the lay state. Article 2 (1) The Charter is based on democratic values and "must not be linked to exclusive ideology or religion." It is therefore clear that the Czech Republic must accept and tolerate religious pluralism, i.e. above all it must not discriminate or, on the contrary, unreasonably favour one of the religious directions. It follows from the article cited that the State must be separated from specific religious beliefs.
The principle of religious pluralism and tolerance is further implemented in Articles 15 (1) and 16 of the Charter. Article 15 (1) of the Charter provides that freedom of thought, conscience and religion is guaranteed and that everyone has the right to change his religion or religion or to be without religion. Article 16 Each Charter has the right to express its religion or faith freely either alone or together with others, privately or publicly, by worship, teaching, religious acts or by maintaining the ceremony (paragraph 1). Churches and religious societies manage their affairs, in particular establish their bodies, establish their spiritual bodies and establish religious and other institutions independently of the state bodies (paragraph 2). The exercise of these rights may be restricted by law if measures in a democratic society are necessary to protect public security and order, health and morality or the rights and freedoms of others (paragraph 4). As the Constitutional Court has already said in the past, unlike freedom of conscience and religion, where the Charter does not explicitly provide for any possible conditions for its restriction, freedom of exercise of religion or belief may be restricted by law for the reasons stated. However, this is about the possibility of limiting the exercise of these rights, not by the State (resolution of 8 October 1998 sp. zn. IV. ÚS 171 / 97, Constitutional Court: Collection of finds and resolutions, p. 12, p. 457 et seq.).
It is clear from this that religious freedom can be defined in principle primarily as a forum internum (Article 15 (1) of the Charter), i.e. as the freedom of everyone to profess a certain religion and belief which cannot be intervened by third parties and, in particular, by public authorities. It is the so-called negative status, virtually libertatis (G. Jellinek), characterized by the definition of the freedom of an individual who cannot enter public authority. At the same time, however, it is clear that the restriction of religious freedom to forum internum is insufficient, since the concept of religious freedom is already the right of everyone to express their religious beliefs externally, naturally respecting the restrictive bail-outs provided for in Article 16 (4) of the Charter.
The principle of the autonomy of churches and religious societies, consisting mainly of the fact that the State must not interfere with the activities of churches and religious societies, is also directly apparent and, if the activity of churches is limited to internal matters (in particular organisational breakdown), it is not in principle possible to review these measures before the national courts (similarly, the German Federal Constitutional Court, BVerfGE 18 / 385).
Finally, the Constitutional Court notes that religious freedom is not only guaranteed at the level of national law (namely the provisions cited in the Charter), but is also subject to protection by international law (e.g. Article 18 of the Pact and Article 9 of the Convention). In this context, the Constitutional Court underlines that the Czech Republic is, pursuant to Article 1 (1) of the Constitution, a democratic rule of law based on respect for the rights and freedoms of man and citizen. In the present case, it follows, first of all, that the Constitutional Court must base itself on the national or international rules which provide for a higher standard of protection of fundamental rights and freedoms. Where, in the present case, the national arrangements contained in the Charter guarantee greater protection of rights than those laid down in those provisions of international agreements, they must therefore be applied as a priority.
The application for annulment of the entire Act No. 3 / 2002 Coll. The Constitutional Court states that even the appellants themselves do not essentially submit relevant arguments for a reasonable presumption of the unconstitutionality of the whole law. If the appellants - only in general - state that the contested law provides for a lower standard of human rights than Law No. 308 / 1991 Coll., which was derogated and already see its unconstitutionality in this regard, the Constitutional Court is left to remind the Constitutional Court of its established caselaw according to which, by the annulment of the contested law, the earlier law, which was repealed or amended by the anticonstitutional law (the finding of 12 February 2002 sp. zn. Pl. ÚS 21 / 01, which was published on 11.3.2002 under No 95 / 2002 and published in the Collection of Finances and Order of the Constitutional Court, p. 25, p. 97 et seq.). Even if the Constitutional Court were to agree with the views presented by the appellants and (only) annulled Act No. 3 / 2002 Coll., there would be no revival of Act No. 308 / 1991 Coll. and only the objective need to adopt an entirely new law governing church material would appear to exist. In addition, it should be recalled that the reason for the repeal of the legislation cannot only be its compatibility with the previous legislation, as suggested by the applicants, but only the finding of an infringement of the constitutional order of the Czech Republic.
For these reasons The Constitutional Court notes that - more unfounded - the proposal to abolish the whole of Act No. 3 / 2002 Coll. did not find any grounds for it and therefore only addressed the proposal to abolish the individual provisions of Act No. 3 / 2002 Coll., or the proposal to abolish some of their parts. At the same time, he has always done so by focusing on those provisions which are directly related to each other.
Question of registration of churches, religious societies and registration of religious legal entities:
Text of the contested provisions:
Paragraph 6 (1) and (2):
Registered churches and religious societies
(1) The Church and the Religious Society shall become a legal person of registration (hereinafter referred to as the "registered church and religious society") under this Act, unless otherwise provided for by this Law.
(2) A registered church and religious society may propose for registration an institution of the Church and of a religious society or a religious and other church institution established in the Church and a religious society under its internal rules for the purpose of organising, confessing and disseminating religious faith as a legal person under this law (hereinafter referred to as "church legal person").
Paragraph 16:
Registration of religious legal persons
(1) The application for registration of an organ of a registered church and a religious society or a religious and other church institution as a legal person shall be submitted by the body of a registered church and a religious society designated for that purpose in the basic document submitted pursuant to Article 10 (3).
(2) The application for registration of a legal person referred to in paragraph 1 shall contain:
(a) evidence of its establishment by the competent authority of the registered church and religious society in accordance with its basic document;
(b) the definition of the object of its activity and its statutes, if any;
(c) its name, which must be different from that of a legal person already operating in the Czech Republic or who has already applied for registration;
(d) its registered office in the Czech Republic;
(e) the designation of its statutory body in the Czech Republic;
(f) personal data of members of its statutory body.
(3) The application referred to in paragraph 1 shall be submitted by the registered church and religious society within 10 days of the date of establishment of the religious legal person. The Ministry shall record the church legal person by registration in the Register of Church legal persons within 5 working days of the date of receipt of the proposal. The record shall be recorded on the date of its establishment in a registered church and religious society.
(4) If the registered church and religious society fail to comply with the time limit referred to in paragraph 3, the registration shall be made by registration on the date of receipt of the proposal referred to in paragraph 1 to the Ministry.
(5) If the proposal referred to in paragraph 1 does not contain all the elements referred to in paragraph 2, the Ministry shall, within 10 working days of the date of receipt of the proposal, invite the authority of the registered church and religious society authorised to submit the proposal to supplement, or to remedy, the deficiencies within 30 days, and inform it that, if that period is not complied with, the application procedure shall be terminated.
Paragraph 20:
Register of religious legal persons
(1) The following data and amendments thereto are entered in the register of religious legal persons:
(a) the name of the religious legal person, indicating the date and number of the registration;
(b) the seat of a religious legal person in the Czech Republic,
(c) the designation of the statutory body of a religious legal person;
(d) personal data of members of the statutory body of a religious legal person;
(e) the identification number of the religious legal person;
(f) the cancellation of the register of a church legal person, the entry into liquidation and personal data of the liquidator, the bankruptcy declaration and the personal data of the insolvency administrator, the rejection of the application for bankruptcy for lack of assets and the initiation of the settlement procedure, indicating the date and number of the decision on these facts;
(g) identification of the legal successor of the religious legal person, if the legal successor is cancelled,
(h) the disappearance of a religious legal person.
(2) Part of the Register of Church Legal Persons is a collection of documents containing documents submitted in the application for registration of the Church Legal Person and in the proposals for amendments thereto.
(3) The data referred to in paragraph 1 (d) and their amendments shall be replaced, at the request of the registered church and the religious society, by the designation of the institution of the church and the religious society which maintains the data and their changes and which are required to comply with the provisions of Article 17 as appropriate in the management of this part of the Register of religious legal persons.
Paragraph 22 (1) (d):
Cancellation of registration of churches and religious society and association of churches and religious societies
(1) The Ministry shall initiate proceedings for the revocation of registration of the church and religious society or for the revocation of registration of the association of churches and religious societies
(d) where the bodies of the registered church and religious society or the statutory bodies of the association of churches and religious societies or of the existing bodies have not been established for more than 2 years and the statutory bodies have ceased their term of office more than 2 years ago and no new provisions have been made.
Paragraph 26:
Cancellation and termination of the registration of a religious legal person
(1) The Ministry shall cancel the registration of a church legal person
(a) on a proposal from a registered church and religious society within 5 working days of the date of service of that proposal,
(b) on its own initiative, finding that a church legal person is acting in contravention of the definition of its competence in the application for registration pursuant to Article 15 (4) or in breach of law, and failing to remedy this by the competent authority of the registered church and religious society following the request of the Ministry, on the date on which the decision to terminate the registration becomes final,
(c) on its own initiative, if the registration of a church and a religious society which has been proposed for registration by a religious legal person is ceased, on the date of the acquisition of legal power, the decision to revoke the registration of a church and a religious society pursuant to Article 24 (3);
(d) if bankruptcy, cancellation of bankruptcy after completion of the schedule order or cancellation of bankruptcy on the ground that its assets are not sufficient to cover the costs of bankruptcy, or rejection of the application for bankruptcy for lack of assets has been declared for the assets of the church legal person.
(2) The religious legal person shall cease to be deleted from the register in the Register of Church legal persons.
(3) The demise of a religious legal person shall be preceded by its abolition with liquidation, or its abolition without liquidation, if its assets and liabilities are transferred to the church and religious society or its other religious legal entity.
(4) If, in the liquidation of a church legal person, its assets are not sufficient to cover its liabilities, the church and the religious society which proposed it for registration shall be liable for these liabilities.
(5) If a church legal person without liquidation and no application for bankruptcy is filed for bankruptcy, the date of its cancellation shall be the same as the date of its deletion from the Register of Church legal persons.
Paragraph 28 (4) and (5):
(4) Registered churches and religious societies as referred to in paragraph 1 are required, within one year of the date of entry into force of this Act, to add to the Ministry the data under this Act for registration or registration. If the registered church and religious society do not supplement this information, the Ministry shall invite it to supplement the data within at least 30 days of the date of receipt of the call. If the registered church and the religious society do not complete the data within this time limit, the Ministry may, depending on the nature of the incomplete data, initiate proceedings to cancel the registration.
(5) The registered church and religious society are required to complete, within a period of 1 year from the date of entry into force of this Act, data on registered religious legal persons under this Act by the authority designated in its basic document. If the data on the church legal person are not completed within this period, the Ministry shall invite the registered church and religious society to supplement the data within at least 30 days of the date of receipt of the call. If the registered church and religious society do not supplement the data within the prescribed time limit, the Ministry may, depending on the nature of the incomplete data, revoke the registration of the religious legal person. In the case of religious legal persons who have existed for more than 50 years, the proof of establishment may be replaced in accordance with Paragraph 16 (2) (a) of this Act by an honorary declaration of the relevant church and religious society.
The words "and Register of Church Legal Persons' in Paragraph 29:
Authorisation provisions
The Ministry shall determine by decree the details and conditions for the management of the Register of Registered Churches and Religious Companies, the Register of the Union of Churches and Religious Companies and the Register of Religious Legal Persons and the models of all extracts from registration or registration under this Act.
The Constitutional Court notes that the essence of the provisions cited by Law No 3 / 2002 Coll. is to establish (I) the principle that the legal formation of the church and religious society takes place at the time of registration by the competent Ministry. The same authority may also cancel the registration. (II.) The registered church and religious society may propose to the Ministry to register a religious legal person, the law detailing the particulars of such registration, defining the Register of Legal Persons, and referencing the abolition of the registration of that legal person and its demise.
As regards the registration of the Church and the religious society, the Constitutional Court states the following (ad I.):
1. According to the provisions of Article 6 (1) of Act No. 3 / 2002 Coll. the Church and the religious society become a legal person by registration under this Act, unless otherwise provided for by that Act. This means that the code of Act No. 3 / 2002 Coll., which is part of national law, provides positively for the creation of the legal personality of those religious associations and that the legal origin of these entities is therefore derived from the registration by the Ministry. The individual legal act, which is a registration, therefore has a constitutional effect and constitutes the State's acceptance in relation to the formation of a particular association.
2. In this context, the Constitutional Court could not overlook the regulation contained in the repealed Act No. 308 / 1991 Coll., which the appellants also explicitly refer to. According to Article 4 (2) of the Act, "Churches and religious societies operate on the territory of the Czech and Slovak Federal Republic on the basis of registration." The previous legal regulation was based in principle on the fact that churches and religious societies could legally exist independently of the acceptance of state powers, but if they wanted to operate legally relevant in the territory of the State, their registration was required. The State did not recognise non-registered churches and religious societies as legal entities (§ 4 (4) of Act No. 308 / 1991 Coll.).
3. It is clear that the wording used in the provision of Paragraph 6 (1) of Act No 3 / 2002 Coll. is very different from the previous regulation. While Law No 308 / 1991 Coll. amended the process of registration of churches and religious societies specifically for the purpose of acting in a national environment and did so mainly because of the need for legal certainty of third parties, it aspires the wording of the new legal regulation at first sight to the constitutionality of the effects of registration of such legal entities, i.e. it gives the impression that a national administrative act gives rise to the legal formation of churches and religious societies, i.e. their general legal capacity. It should be noted, however, that such an approach would clearly not correspond to the nature of a number of churches and religious societies, whose legal existence often results not from state law but from canonical law (or international law), and that State power cannot therefore have the ambition to regulate these institutions (including their constitution), but merely restrict their activities in cases set out in the Taxation Procedure in Article 16 (4) of the Charter.
4. The Constitutional Court also recalls that, for example, relations between the Catholic Church (Holy See) and individual states are traditionally regulated by international treaties (concordates). The content of these contracts is primarily the organisation of church institutions within the state. It is clear that the legal personality of the Catholic Church is undisputed and the national legal order cannot interfere in any way and question it. This is confirmed by, for example, the classification of Article 1 of the draft Treaty between the Czech Republic and the Holy See on the arrangements for mutual relations, according to which the designated Contracting Parties recognise and treat each other as independent and independent bodies under international law and undertake to fully respect that personality.
5. The Constitutional Court stressed in a number of its earlier decisions the fact that it prefers the principle of constitutionally conformal interpretation of legislation prior to their deregulation. In the present case, it is clear that the legislature has created a somewhat opaque legal situation, which does not correspond, for example, to the requirements laid down by the European Court of Human Rights for law, and which consists in respecting the conditions of the availability of the law, its clarity and predictability (prévisibilistic, forehearing), which will result. [The "law" can therefore only be regarded as a standard specifically designed to enable the citizen to adjust his behaviour "(Hashman and Harrupo v United Kingdom, Overview of the judgments of the European Court of Human Rights No 1 / 2000, p. 46).] However, the Constitutional Court considers that the appellants objected to the contradiction of Article 6 (1) of Act No. 3 / 2002 Coll. the aforementioned constitutional courts may be bridged by an appropriate interpretation of the Constitution and that therefore its depreciation is not necessary.
6. In this respect, the Constitutional Court therefore states that the provision of Paragraph 6 (1) of Act No 3 / 2002 Coll. cannot be affected by the legal personality of churches under the church rules or international law, but rather by the setting of certain conditions for the recognition of their legal personality, guaranteeing the minimum protection of other participants in private property relations. The formal interpretation of Article 6 (1) of Act No. 3 / 2002 Coll. is therefore primarily such that it is not possible to import from this provision any question of the existing general subjectivity of churches and religious societies and the right to their existence independently of acceptance by the State (Czech Republic). The function of their registration is therefore the same as in the case of the regulation contained in Act No. 308 / 1991 Coll., which, however, reflected this fact in the chosen definition significantly more closely - that is, only the determination of the conditions of operation and the legally relevant activities of churches and religious societies in the Czech Republic, not the creation of their general legal capacity.
7. The Constitutional Court also states that, in accordance with the Constitution, the withdrawal of the registration of the church and the religious society (or the revocation of the registration of the association of churches and religious societies) contained in the provisions of Sections 22 (1) (d) and 28 (4) of Act No. 3 / 2002 Coll. If the Constitutional Court has concluded that the State is entitled to determine the conditions of operation and the legally relevant activities of churches and religious societies in the territory of the Czech Republic and to formally express these conditions in the Institute of Registration, it is also necessary to consistently respect the right of the State to lay down conditions for the withdrawal of the possibility of this legally relevant activity of the Church and the religious society in the territory of the Czech Republic in the event of a breach of these conditions.
8. Therefore, the Constitutional Court concludes that the provisions of Sections 6 (1), 22 (1) (d) and 28 (4) of Law No 3 / 2002 Coll. do not contradict Article 16 (2) and (4) of the Charter and therefore rejected the application for annulment.
As regards the registration of religious legal persons, the Constitutional Court states the following (ad II.):
1. In particular, the Constitutional Court finds that Article 16 (2) The Charter regulates the right of churches and religious societies to manage their affairs, in particular to establish their bodies, establish their clergy and establish religious and other institutions independently of the state authorities. It is therefore a fundamental right to have churches and religious societies as specific legal entities (see, for example, the order of the Constitutional Court of the Czech Republic sp. zn. IV. ÚS 171 / 97, Collection of finds and resolutions, Sv. 12, str. 468; likewise, the order of the Constitutional Court of the Slovak Republic of 10.10.1995 sp. zn. II. ÚS 128 / 95, Zbierka finázov and the establishment of the Constitutional Sud. The content of this right is the right to autonomy, i.e. the right to independence from the State in the management of its affairs. The guarantee of a free organisation and the administration of its own affairs is a prerequisite for the freedom of religious life and the work of the Church, which requires the freedom of organisation to maintain its tasks, the enforcement of standards and governance (see, for example, the finding of the German Federal Constitutional Court of BVerfGE 70 / 138). The opinion of the specialised literature is also based on the fact that Article 16 (2) of the Charter does not preclude and foresees the exercise of external state supervision in respect of the maintenance of laws in these special associations "in order to protect the values referred to in paragraph 4 of this Article. Such legal regulation of the state's relationship with these associations could not, however, limit the independence of churches and religious societies in terms of establishing their bodies and other issues of internal life" (V. Pavlíček et al.: Constitution and constitutional order of the Czech Republic, Part 2 - Rights and freedoms, Linde, 1996, p. 154).
2. The Ministry of Culture states in its observations on the proposal - in this context - that it is necessary to distinguish between different areas of the activities of churches and religious societies and that this legal regime must be distinguished from individual rights and freedoms of citizens, because it is said that "the legislation of churches and religious societies is not intended to regulate individual rights of citizens or of any person in the sphere of religion." At the same time, the Ministry of Culture takes the view that the appellants mismix the terms "church institution" and "church legal person," where the contested law is supposed to respect the right of churches and religious societies to establish church institutions without legal personality; However, the extensive interpretation of the Charter in the sense of the autonomous establishment of religious legal persons allegedly "violates the constitutional principle of state sovereignty."
3. Therefore, the issue at issue in the present case is in particular an assessment of whether or not the creation of religious legal persons can be substitutable to Article 16 (2) of the Charter. In other words, whether the establishment of religious and other ecclesiastical institutions can be understood either strictly in the sense that this constitutionally protected right applies only to institutions without a separate legal personality or, on the contrary, in an extensive sense, to institutions with their own legal personality.
4. For example, the German Federal Constitutional Court accepted that, for example, "the concept of the Catholic Church involves the exercise of religion not only in the field of faith and worship, but also freedom to develop and operate in the world, which corresponds to its religious tasks. This includes particularly charitable action. Active love for neighbors is a fundamental task for Christians and Christian churches as a fundamental function. It does not only include church-based hospital care, but is generally oriented towards the security of the people needed, including their education and education (BVerfGE 70 / 138; 57 / 220). In this context, it is also appropriate to draw attention to Article 10 of the draft Treaty between the Czech Republic and the Holy See on the arrangements for mutual relations (note: the Treaty is referred to in its opinion primarily by the Minister of Culture), according to which the Catholic Church establishes, in accordance with its own rules, a legal person for the organisation and recognition of the Catholic faith" and for its activities in particular in the fields of education, health, social and charity care. "This means that the draft contract in question clearly accepts that the (Catholic) Church is entitled to establish religious legal persons and respects their activities not only in the area of religion, but also in other areas which are inseparable and indispensable to each active church and religious society.
5. Therefore, if Article 6 (2) of Act No 3 / 2002 Coll. limits the right of churches and religious societies to register a religious legal person only "for the purpose of organising, confessing and disseminating religious faith," the concept is thus strictly defined in an apparent conflict with the very purpose and purpose of churches and religious societies and is indicative of their fundamental misunderstandings, since their activities are naturally not limited only to the presentation of religious faith, but rather to their external activities, which go beyond the mere exercise of religion, emit into society and thus constitute a necessary precondition for the functioning of civil society. This restriction clearly contradicts Article 16 (2) of the Charter, since this article guarantees the right of churches and religious societies to establish religious and other church institutions independently of the state authorities, whereas the provisions of Article 6 (2) (as well as those of the subsequent - Article 28 (5)) make the legal existence of religious legal persons subject to the registration by the Ministry.
6. In so doing, it is clear that the limitation of the legal formation of church legal entities resulting from the provisions cited does not correspond even to the taxiously expressed reasons for which the exercise of those rights can be restricted, positively enshrined in Article 16 (4) of the Charter. These restrictions, which, in view of their nature, must already be interpreted strictly, can only occur "if there are measures in a democratic society necessary to protect public security and order, health and morality or the rights and freedoms of others." With the use of the argument and contrario, it is clear that the statutory limitation of the fundamental law enshrined in Article 16 (2) of the Charter, laid down by the condition of the Ministry's registration of religious legal persons, does not fall under any of the above constitutional cauties and therefore also constitutes a restriction of the unconstitutional, disrespecting autonomy of churches and religious societies and the plurality of their activities. Moreover, as is also apparent from the constant case law of the European Court of Human Rights, three basic conditions must be met to limit fundamental rights: they must be laid down by law, they must aim at a legitimate objective and they must be necessary in a democratic society. However, it is clear in the present case that only the first of these conditions is met and State interference in the establishment of religious legal persons cannot be regarded as aimed at a legitimate objective or as necessary in a democratic society.
7. The Constitutional Court further states that according to the classification of the provisions cited, the legal formation of religious legal persons is bound by registration and not by registration. From a legal point of view, therefore, a substantially "freer regime" should be established for the creation of religious legal persons than for other legal persons known to Czech law. The registration does not constitute a constitutional but merely a declaratory legal act by its nature (as opposed to registration). Therefore, a "established institution" may also be proposed for registration and the effects of the registration are essentially retroactive, i.e. already on the date of the establishment of the church legal person registered by the church or religious society, and not until the date of registration. However, from a factual and applied point of view, it cannot be overlooked that there is no significant difference between the registration and registration as provided for in the contested law, since the law on the application for registration sets out clear conditions in which the Ministry - which is entitled to assess it - does not take place (see: there is no legal establishment of the church institution), and the Ministry is also entitled, in taxic cases, to revoke the registration of the church legal person if it finds that the church legal person is acting in breach of its jurisdiction or in a (more unspecified) breach of law.
8. In the legal environment of the Czech Republic, the Constitutional Court could not overlook the fact that the right to associate in churches and religious societies constitutes a special form of exercise of the right of association. However, "ordinary 'associations have the right under Law No 83 / 1990 Coll. to establish their branches as" secondary legal entities', derived from the association as a whole and having legal personality (see, for example, I. Telec, Federal Law, C. H. Beck, 1998, p. 148 et seq.), and to establish such legal entities, it is in principle sufficient to provide for this possibility in the statutes of the association. Therefore, the creation of these ancillary legal entities is not conditional on acceptance by the State. It is also worth recalling in this context the way in which the trade union and employers' organisations are legally formed, which takes place as early as the day following the receipt of the application for registration by the Ministry (Section 9a (1) of Act No. 83 / 1990 Coll., as amended). Also from this national comparative point of view, the legal requirement for the registration of religious legal entities is unfounded. In other words, since churches and religious societies are unmistakable with so-called ordinary societies (associations) by their significance, and if ordinary societies can establish legal persons without state integrity, there is no justification for a legal restriction on the formation of religious legal entities by a state authority.
9. The argument of the Ministry of Culture that the autonomous establishment of religious legal persons violates the constitutional principle of state sovereignty must be rejected, because the concept of a democratic rule of law is closely linked to the idea of a liberal state tolerating the pluralism of social phenomena and institutions. The principle of State sovereignty cannot therefore be understood in such an extensive way that it will necessarily be contradicted only by the very legal existence of any legal entity derived from a legal fact other than the explicit acceptance of state powers. The idea of a liberal rule of law follows from the fact that the State is to limit its state interference and influence only in cases where this is necessary and where it clearly corresponds to the public interest. The exaggeration of state influence and arbitrary regression of social phenomena is then in obvious contradiction with this notion. Moreover, in the case of churches and religious societies, account must be taken of the fact that they are often historical institutions that exist continuously in different forms of government and in different state institutions. The State should therefore treat these institutions representing the realisation of religious freedom particularly sensitively and consider very carefully its restrictive interventions and limit them to actually justified cases.
10. On the basis of what has been stated, the Constitutional Court - led by the principle of self-restraint and minimisation of intervention - reached the conclusion that the provisions of § 6 (2) and § 28 (5) of Act No. 3 / 2002 Coll. According to the Constitutional Court, these provisions are directly based on the cross-compliance of the legal formation of religious legal persons by a decision of the State, i.e. de facto their registration, even if formally referred to as registration in the law. However, since the Constitutional Court did not find compelling reasons to question the very principle of registration of these entities (in its true sense, not in the meaning of the disguised registration, as is the case in the context of the deregulated provision of § 6 (2) of the Act), and considers that their registration is possible in particular in terms of the fulfilment of the information and protection function of third parties' rights, it rejected the proposal to abolish the provisions of § 16, § 20, § 26 and to abolish cited words in § 29 of Act No. 3 / 2002 Coll. In a situation where the Constitutional Court, as an unconstitutional body, abolishes the provisions of Paragraph 6 (2) of the Act, the said provisions can be interpreted and applied accordingly to the Constitution, so that their depreciation is not necessary. These provisions provide for the content of the application for registration (§ 16), the register of religious legal persons (§ 20, § 29), the abolition of the registration of a church legal person and its demise (§ 26) and, according to the Constitutional Court's conviction, their content can be interpreted in the sense that they do not make the creation and demise of religious legal persons subject to a constitutional legal act of the state body, but that their registration is of a declaratory nature and that the functions of information and protection of the rights of third parties are limited.
11. For all the reasons set out above, the Constitutional Court finds that the provisions of Sections 6 (2) and 28 (5) of Law No 3 / 2002 Coll. contravene Article 16 (2) and (4) of the Charter and therefore abolish them. The proposal to abolish the provisions of § 16, § 20, § 26 and to abolish the words cited in § 29 of Act No. 3 / 2002 Coll. is rejected.
Authorisation to exercise special rights:
Text of the contested provisions:
Paragraph 11:
Application for authorisation to exercise special rights
(1) An application for authorisation to exercise special rights may be made by a registered church and a religious society which:
(a) it has been registered under this law continuously on the date of the application for at least 10 years;
(b) publish annually 10 years before the submission of this draft annual activity report for the calendar year;
(c) fulfil duly the obligations towards the State and third parties.
(2) The application for authorisation to exercise special rights is submitted by the authority of the registered church and religious society.
(3) An application for special rights may be filed either for the exercise of all special rights under Paragraph 7 (1) or only for the exercise of special rights under § 7 (1) (a) to (e).
(4) The application for authorisation to exercise special rights pursuant to Article 7 (1) (a) to (e) must contain:
(a) in the original, the signatures of so many aged citizens of the Czech Republic or foreigners with permanent residence in the Czech Republic reporting to this church and to the religious society, the amount of 1 promile of the population of the Czech Republic according to the last census, indicating their personal data under this law and indicating the identical text on each signing sheet, stating the full name of the church and the religious society which collects the signatures for the purpose of its registration, and showing that the signature sheet is signed only by the person reporting to this church and religious society;
(b) a statement that its activities as legal entities under this law do not contradict the conditions laid down by this law and that they comply with the conditions laid down in paragraph 1 (c);
(c) the texts of the annual reports referred to in paragraph 1 (b) and of the accounts for the 10 years preceding the submission of this proposal.
(5) The application for authorisation to exercise all special rights referred to in Article 7 (1) shall contain the particulars referred to in paragraph 4 and, in addition, a document confirming that the obligation of confidentiality of priests in connection with the exercise of confessional secrecy or in connection with the exercise of a right similar to that of confessional secrecy is a traditional part of the teaching of the church and religious society for at least 50 years.
Paragraph 21:
Revocation of authorisations to exercise special rights
(1) The Ministry shall initiate the procedure for the revocation of the entitlement to exercise special rights
(a) where the registered church and religious society seriously or repeatedly infringes obligations towards the State or third parties;
(b) where the registered church and religious society do not publish annually the annual report referred to in Article 7 (3); or
(c) on the initiative of a public authority under its jurisdiction, by a specific legislation in which there is evidence of serious or repeated infringement of the obligations for the activities of a registered church and religious society under a specific legislation or agreement with that public authority.
(2) The Ministry of Justice shall cease to exercise the special rights of the registered church and the religious society referred to in paragraph 1 if the reason for the proceedings initiated ceases to exist or if the registered church and religious society prove in writing that the procedure proposed to it will remove the reason for the proceedings initiated within a reasonable period of time in agreement with the persons affected by the conduct which led to the opening of the proceedings for the revocation of the rights.
(3) The Ministry's decision to revoke the authorisation to exercise special rights of the registered church and religious society concerns all special rights under Paragraph 7 (1).
(4) The decision of the Ministry to revoke the authorisation to exercise special rights of the registered church and the religious society which has acquired legal authority is addressed to the Ministry of Interior.
1. The Constitutional Court notes that the essence of the contested provisions is the legal method of granting and withdrawing the authorisation of a registered church and a religious society to exercise special rights. The list of special rights is legally defined in Article 7 (1) of Act No. 3 / 2002 Coll. and includes the right to teach religion in public schools; to entrust persons to perform spiritual service in the armed forces and in the places of detention, imprisonment, protective treatment and protective education; be financed under a specific regulation; perform ceremonies in which church marriages are concluded; establish church schools and maintain the obligation of secrecy by clergy in connection with the performance of confessional secrecy.
2. The Constitutional Court is based on the fact that the essence of religious freedom is to ensure that everyone can freely express their religion without state intervention. At the same time, however, a state consistently separate from churches and religious societies cannot be required to actively assist the activities of individual churches and religious societies (see, by analogy, the resolution of 10.4.1998 sp. zn. II. ÚS 227 / 97, Constitutional Court: Collection of Finances and Resolutions, p. 10, p. 447 et seq.). If the legislature provides that the State will assist religious entities, it is its own decision, and only the State is therefore competent to lay down the conditions which those entities must fulfil in order to qualify for the cooperation of the State. The constitutional maximum in setting these conditions is the exclusion of arbitrary discrimination.
3. It is clear from the nature of the so-called special rights that these are cases where the state of legitimate churches and religious societies allows "superstandard" requirements for specific transactions, i.e. those of an active and positive approach by the State. These positive benefits include access to state funding, the right to teach in public schools, the right to establish church schools, etc. It is therefore also clear that the State is in principle entitled to determine the conditions under which individual entities will have access to these transactions. It is not the task of the Constitutional Court to assess and assess the appropriateness or effectiveness of these conditions, but only their constitutionality. In the present case, this means that the Constitutional Court only had to deal with whether any of the conditions laid down by law showed signs of insolence and discrimination.
4. In this respect, however, the Constitutional Court found no signs of unconstitutionality in the contested provisions of Sections 11 and 21 of Law No 3 / 2002 Coll..
5. Paragraph 21 (1) (b) of Law No 3 / 2002 Coll. however, according to the Constitutional Court, it shows obvious signs of unconstitutionality. Its essence is the possibility of the Ministry to revoke the permissions for the exercise of special rights if the registered church and religious society do not publish an annual report pursuant to § 7 (3) of Act No. 3 / 2002 Coll. The law provides for this possibility on a flat-rate basis, i.e. the contested provision allows, for example, the withdrawal of the right of a church or a religious society to teach religion in public schools, to conclude religious marriages or to maintain the obligation of secrecy by the clergy only because the registered church or religious society does not publish an annual report. According to the Constitutional Court, this provision clearly does not respect the principle of proportionality, according to which the law should consistently maintain the balance of the relationship between the violation of the law by the Church and the religious society, on the one hand, and between the penalty applied by the State on the other hand. In the present case, however, this proportionality is not maintained, as the failure of churches and religious societies in the field of information obligations is followed by sanctions which fall by their nature in the field of religious activity. The Constitutional Court recalls that in a similar way it has already argued in principle in the case under point Pl. ÚS 26 / 94 (Constitutional Court: Collection of finds and resolutions, Sv. 4, p. 113 et seq.; declared under no. 296 / 1995 Coll.), and therefore refers accordingly to this argument for concise, even though this was a case of other special forms of private corporations - political parties and movements.
6. Therefore, the Constitutional Court as an unconstitutional repeal of the provisions of § 21 (1) (b) of Act No. 3 / 2002 Coll., for contradiction with Article 16 of the Charter.
Revenue from churches and religious societies:
Text of the contested provision:
Paragraph 27 (4) and (5):
(4) The income of the Church and the religious society consist in particular of:
(a) contributions from natural and legal persons;
(b) income from the sale and lease of movable, immovable and intangible property of churches and religious societies;
(c) interest on deposits;
(d) gifts and heritage;
(e) collections and contributions from part of the proceeds under the special law;
(f) loans and loans;
(g) income from business or other gainful activities;
(h) subsidies.
(5) The subject matter of business and other gainful activities must be defined in the basic document of the registered church and religious society. Entrepreneurship and other gainful activities of the church and religious society can only be an additional gainful activity and the profit achieved can only be used to fulfil the objectives of the church and religious society.
The content of the contested provision is a list of the income of churches and religious societies (paragraph 4) and a definition of the subject matter of the church's business and of the religious society and the method of making use of the profit achieved (paragraph 5).
1. In addition, the Constitutional Court states in particular that the appellants themselves have not explained in any way how they see the unconstitutional classification of the income of churches and religious societies in the provision of § 27 (4) of Act No. 3 / 2002 Coll. Since this list is carried out in a demonstrative and not in a taxative way (cf. "in particular"), the Constitutional Court notes that this definition is fundamentally consistent with the private nature of churches and religious societies and, although to some extent, it can be considered superfluum non-nights.
2. Therefore, since the Constitutional Court itself found no reason to believe that the provision cited was unconstitutional, it rejected the motion for its annulment as unfounded.
3. The application for annulment of the provision of § 27 paragraph 5 of Act No. 3 / 2002 Coll. The Constitutional Court states that the first sentence of that provision, according to which the subject of the business and other gainful activities of the Church and of the religious society must be defined in its basic document, does not give rise to any presumption of its unconstitutionality. In essence, it is only an information obligation of the Church and the religious society, which is justified by the interests of other participants in private law relations, and cannot therefore be interpreted as an inadmissible restriction on the autonomy of churches and religious societies. After all, this is not said by the applicants themselves. Therefore, part of the proposal is also rejected as unfounded.
4. According to the second sentence of the provision cited, business and other gainful activities of the Church and of the religious society can only be an additional gainful activity and the profit achieved can be used "only to fulfil the objectives of the Church and the religious society." In addition, the Constitutional Court states that churches and religious societies constitute - as a special form of exercise of the right of association - private-law corporations which can do anything which is not expressly prohibited by law (Article 2 (3) of the Charter, Article 2 (4) of the Constitution). In accordance with Article 16 (4) Furthermore, the Charter may be limited to the exercise of those rights only in the necessary and defined cases. However, in the present case, the law provides that the profit earned from business and other gainful activities may only be used by the Church and the religious society to fulfil its objectives. These objectives are defined by Act No. 3 / 2002 Coll. in the provision of § 3 (a), according to which the purpose of church and religious society is "to confess a certain religious faith, whether publicly or privately, and in particular the associated assembly, worship, teaching and spiritual services." It is therefore clear that the contested provision makes it impossible for churches and religious societies to use the profit obtained in a non-legally defined way. This provision also runs counter to Article 11 (1) of the Charter.
5. However, in the view of the Constitutional Court, this restriction clearly does not correspond to the purpose and mission of churches and religious societies. In fact, as stated elsewhere in this finding, the task of these entities cannot in any way be reduced to the mere recognition of a certain religious belief - as the contested provision provides in fact - but their activity in society is considerably wider and also consists in the exposition of religious values on the outside, through not only religious activity, but also, for example, charity, humanitarian and education activities. Therefore, the restriction of churches and religious societies to freely dispose of their legally acquired income only in the area of religious belief constitutes arbitrary State interference in the private-law nature of these entities, which is clearly not justified by any relevant public interest; similar arguments, albeit in relation to the business of political parties and not of churches and religious societies, were used by the Constitutional Court in the case under point Pl. ÚS 26 / 94 (Found of 18 October 1995, Collection of finds and resolutions of the Constitutional Court, p. 4, p. 129 et seq.). There is therefore a contradiction between that restriction and Article 4 (4) of the Charter, according to which, when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated and such restrictions must not be misused for purposes other than those for which they were established.
6. Therefore, the Constitutional Court part of the sentence of the second provision of Section 27 (5) of Law No 3 / 2002 Coll. for its contradiction with Article 4 (4) of the Charter in conjunction with Articles 16 (2) and 11 (1) of the Charter as an unconstitutional act.
President of the Constitutional Court:
v. JUDr. Holecek v. r.
Vice-President
In accordance with Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, they took a different position to justify the finding of the judges JUDr. Pavel Holländer and JUDr. Jiří Malenovský.
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Regulation Information
| Citation | The Constitutional Court found No. 4 / 2003 Coll., on the application for annulment of Act No. 3 / 2002 Coll., on the Freedom of Religious Religion and the Status of Churches and Religious Societies and on the amendment of certain laws (Act on Churches and Religious Societies), or on the abolition of certain provisions of this Act |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 13.01.2003 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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