An extension to the six-month deadline for the Hungarian government to reach a compensation agreement with nine disenfranchised churches passed on May 15 with no satisfactory agreement, meaning the European Court of Human Rights (ECtHR) will determine the amount of damages.
Many churches in Hungary were arbitrarily deprived of their legal status under the country’s Church Act of 2012. Nine of these churches, represented by the Hungarian Civil Liberties Union, brought a freedom of religion complaint to the ECtHR.
The court ruled in favor of the churches roughly one year ago, and confirmed this ruling in September 2014, when it rejected the government’s appeal. Pursuant to the ruling, the government had six months to reach an agreement on just compensation with the nine churches.
But the government's first offer was presented only one week before the original six-month deadline, in March 2015, which forced the ECtHR to extend the negotiation period until May 15.
Compensation was to be broken into four areas: material damages; non-material damages; procedural costs; and interest. As for material damage, the Ministry of Health, which handled compensation negotiations for the government, used a trend calculator, which relied on tax authority data and changes in the legal environment.
Its offer included compensation only for losses from the 1 percent personal income tax contribution scheme, complemented by an equal amount from the government's budget. (In Hungary, taxpayers are able to donate 1 percent of their income taxes to an organization of their choice, but only registered churches are eligible to receive these donations.)
Legal status in limbo
The offer concerning non-material damages was developed according to five factors: the case-law of the ECtHR; the length of operation of the applicant churches; a church’s membership/support/social stature; steps made in order to carry out its religious activities; and steps made in order to maintain and reclaim its status as a church.
Any proposition as to the settlement of the legal status of churches was absent from the offer. At this point, nearing the end of the six-month negotiation period, three of the churches decided to stop negotiations and leave the matter to the ECtHR.
The Ministry of Human Resources made it clear during the negotiations that its authorization covers consultations on damages, but not on settling the legal status of churches, which, it said, was a matter for Parliament.
The ministry supported this position by pointing to national law and ignoring the decisions of Hungary’s Constitutional Court and the ECtHR. Ministry representatives stated that a qualified majority vote of the legislature is required to resolve any status issue, and it was up to the Ministry of Justice to submit any amendments to the legislation. During the negotiation process, a representative of the Ministry of Justice did announce that that ministry would submit a draft amendment in September to settle the legal status of churches.
HCLU reminds the public that the new act should not have been adopted at all. The alleged purpose of the government to filter out "business churches" could have been realized by less restrictive means.
When the Hungarian Constitutional Court declared the Church Act unconstitutional, the government willfully failed to execute the judgment. Instead of removing the law, the government amended the Fundamental Law (the Constitution) to make the Church Act conform. The HCLU therefore considers the Fundamental Law unconstitutional, if not in form, then in substance.
Accordingly, an amendment of the Church Act would not in itself solve the problem of legal status, which requires the removal of the unlawful provision from the Fundamental Law. As long as the legal environment is not fully restituted, Hungary will bear the stigma of not respecting the equal rights of its citizens to the freedoms of religion and association.