EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT OPINION
ON THE DRAFT LAW
REGARDING THE RELIGIOUS
FREEDOM
AND THE GENERAL REGIME OF
RELIGIONS
IN ROMANIA
on the basis of the comments by
Mr Giorgio MALINVERNI, (Member, Switzerland)
Mr Hans-Heinrich VOGEL (Member, Sweden)
I.
Introduction
1. On 21 July 2005, Mr Adrian
Lemeni, Secretary of State for Religious Affairs of Romania, requested the
opinion of the Venice Commission on the “Draft Law regarding the Religious
Freedom and the General Regime of Religions in the Republic of Romania”
(CDL(2005)064). Messrs Giorgio Malinverni and Hans Vogel were appointed as
rapporteurs.
2. The Ministry of Culture and
Religious Affairs, together with the Association “Conştiinţă şi Libertate” (Conscience and Liberty), organised an international conference in Bucharest on 11-13 September 2005 on
the religious freedom in the Romanian and European context. The conference
devoted particular attention to the above-mentioned draft law. Participants in
this conference included representatives of the cults and the religious
associations active in Romania, as well as international experts. Mr Hans Vogel
attended the conference on behalf of the Venice Commission.
3. The present opinion which was
drawn up on the basis of comments by Messrs Malinverni and Vogel (CDL(2005)079
and 078) was adopted by the Commission at its 64th plenary session (Venice, 21-22 October 2005).
II.
General observations
4. These
comments are based on the English translation of the Draft Law regarding the
Religious Freedom and the General Regime of Religions in the Republic of
Romania (CDL(2005)064) (hereinafter: the “draft law”) transmitted by the
Government of Romania. This translation may not accurately reflect the Romanian
original version on all points. In order to avoid
unnecessary misunderstandings, the Romanian text of the draft has also been
taken into account, at least to the extent possible.
5. In Romania, constitutional provisions guarantee the freedom of religion and govern the legal
regime of religious communities.
Various governmental decrees regulate this matter further. Decree n°177/1948 “for
the General Regime of Religions”, which has never been formally abrogated,
remains the basic piece of legislation governing the status of religious communities
although several of its provisions no longer seem to be implemented in
practice. Decree n°177/1948 has been widely criticised due to its strong
interference with the internal organisation of the religious communities as
well as its extensive control over religious life in general. In Romania, religious communities are required to register. Registration can be obtained by
governmental decision, but at present there does not seem to be a clear
procedure for the registration of religious groups as religions, a state of
affairs which has caused legal uncertainty.
6. Article 73,
paragraph 3 lit. s of the Constitution, republished after the national
referendum held in October 2003, now requires that the general
status of religious communities be regulated by an
organic law, which Parliament has to adopt by an absolute majority of the
members of both the Senate and the Chamber of Deputies. The draft law constitutes
a rather long and detailed legal basis providing for a three layer system,
which classifies religious communities either as “cults”, “religious
associations” or “religious groups”. A set of specific rights and obligations
are attached to each of these categories. A religious
association can be founded as such and be later recognised, through Government
decision, as a cult. The status of cult is reserved for religious communities which
have been active in Romania for a long time and have a large number of members,
as well as stable institutions.
7. The draft
law seems to be the result of extensive discussions between the Romanian
Ministry of Culture and Religious Affairs – through the State Secretariat for
Religious Affairs – on the one hand and the 18 cults which already enjoy
recognition in Romania. There appears to be far reaching agreement that the
relations between the State of Romania and religious communities within the country
should in the future be regulated along the lines envisaged in the draft law,
including through the proposed procedure of recognition and the classification
of religious communities in three categories.
8. The
Commission considers that, despite certain excessive interferences with the
autonomy of the religious communities which would need to be addressed (see paragraphs
24-25, below), the draft law is likely to constitute a marked improvement as
compared to the current situation, which is characterised by a lack of legal
certainty. The draft law will in particular better circumscribe and limit the
role of the Government in controlling the activities of religious communities,
while reiterating - although at length - key elements of the freedom of
thought, conscience and religion.
9. It is true
that the classification of religious communities in three categories and the
whole procedure of registration can be seen as cumbersome and that such a
system is not indispensable at all to protect freedom of religion. The
Commission is, however, aware that such a system is considered useful by many in
the Romanian context, bearing in mind historical, social and other
circumstances. The Commission is in particular sensitive to the fact that recognition
of cults entails a number of rights implying significant financial state
support. This may help to understand why certain strict guarantees are required
from the cults, such as a long established presence and a minimum number of members.
III.
Position of the draft law in the
hierarchy of norms
10. The
position of the draft law in the Romanian legal order is of crucial importance
for its future interpretation. According to Article 73, paragraph 3 lit. s of
the Constitution, the draft shall be enacted as an organic law, i.e. with a
higher status than ordinary laws. The Commission understands that the form of
the organic law is usually chosen to stress the social importance of the matter
to be regulated. The adoption and subsequent modifications of an organic law
require a qualified majority in Parliament, which ensures greater stability to
this specific form of legislation.
11. The
Commission is of the opinion that the draft law contains too many imprecise references
to other laws. Expressions like “in the conditions of the law” or “according to
the law” are frequently used, as is the case in Article 10, paragraphs 2, 3 and
4, Article 29, paragraph 1, Article 32, paragraph 2, Article 33, paragraph 2.
Without more precise indications, it is not possible to know to which other
legal provisions the draft law intends to makes reference, which is harmful in
terms of legal certainty and likely to complicate the future interpretation of
the draft law. The drafters could therefore give consideration to avoiding such
references by trying to govern, in an exhaustive way, the matter in the draft
law itself. Furthermore, certain provisions like Article 38 and Article 39,
paragraph 2 have no normative character whatsoever since they only serve as
cross-references to other legislation.
IV.
Religious entities
a.
Recognition procedure
12. The status
of “religious association” can be obtained by registration in a public register
(see Articles 40 to 48 of the draft law). According to Article 40, paragraph 1
of the draft law, membership of at least 300 Romanian citizens residing in Romania is needed for such an association to be registered. This poses two problems:
firstly, it may be difficult to fulfil for believers who belong to great
religions of the world – as Hinduism or Buddhism – which may not have a great
number of followers with Romanian citizenship residing in Romania. Secondly, the citizenship requirement seems at variance with the prohibition of
discrimination on the basis of inter alia citizenship and national
origin, a principle enshrined in a number of international instruments ratified
by Romania. The drafters could therefore soften this requirement, both in terms
of number and citizenship.
13. The
requirements for recognition of cults are set out in Articles 17 and 18 of the draft
law. According to Article 17 of the draft law, the status of cult can be
acquired by those religious associations which, by activity and number of
members, offer guarantees not only of durability and stability, but also of
“public interest”. In special circumstances, a provision of this kind may be
reasonable concerning secular associations, but it does not seem reasonable in
this context.
14. The
membership requirement according to Article 18 lit. c of the draft law is at
least 0,1 % of the population of Romania according to the latest census. With a
population of 22.3 million this provision means the presence of at least 22.300
members, all of which have to be Romanian citizens residing in Romania.
15. The
stability requirements are described in Article 18 lit. a and c of the draft
law: any religious association which applies for the status of cult has to
provide documentary evidence that it is constituted legally and has been
functioning uninterruptedly on the territory of Romania for at least twelve
years.
16. These high
and rigidly written membership and stability requirements combined can make it
very difficult for religious associations to acquire the status of cult. The very
opportunity of including such precise numerical thresholds in the law can
therefore be questioned. The use of more flexible criteria could have the
advantage of reserving a margin of appreciation in specific circumstances and
the Commission recommends that this option be further explored by the
authorities.
17. In view of
the foregoing, the Commission takes the view that the draft law is
characterised by a somewhat rigid legal framework religious communities have to
cope with in order to obtain state recognition and develop their activities.
Bearing in mind the general background of the draft law as well as historical,
social and other circumstances prevailing in Romania (see paragraph 8, above),
it seems that there remains at least some scope for reviewing the aforementioned
legal requirements.
b.
Simplified recognition procedure for eighteen
cults
18. The 18
cults listed in the annex to the draft law can be recognised by summary
proceedings and without providing some of the information which unlisted
religious associations would have to provide to become recognised cults (see
Article 49).
19. Recognition
will, however, not be automatic and not necessarily granted. According to
Article 49, paragraph 3 of the draft law, recognition is granted for the
statutes and canonical codes of any applying cult only on the condition that
they do not affect by their content national security, order, health, public
morality or human fundamental rights and liberties. It is not clear why this
provision has been deemed necessary for recognition of the well known cults
listed in the annex. It should be clarified that there is no intention of
improper exploitation of this provision as an instrument to deny recognition
under the new law to any of the cults listed in the annex.
c.
Respect for the autonomy of religious
communities
20. When
dealing with the legal status of religious communities, it is of the utmost
importance that the State take particular care to respect their autonomous
existence. Indeed, the autonomous existence of religious communities is
indispensable for pluralism in a democratic society and is thus an issue at the
very heart of the protection which Article 9 affords.
21. In this
regard, certain provisions of the draft law can be viewed as questionable state
interferences, whose necessity in a democratic society is not established. For
example, according to Article 18 lit. c of the draft law, documentation has to
be provided by religious associations seeking state recognition concerning the
applicant’s “own confession of faith and the organisation and functioning
statute […]; its structure of central and local organisation; the mode of rule,
administration and control; […] the statute of their own personnel […]; the
main activities which the cult cares to undertake with a view to reaching its
spiritual goals”. There is no indication in the draft law why and for which
purpose this information has to be provided by the applicant, how detailed the
information has to be and for what use it could be for the Government in
reaching a positive or negative decision on the recognition’s application. The
same holds true for Article 41, paragraph 2 lit. b. Article 23 of the
draft law, which deals with staff members recruited by cults, also seems too
far-reaching in this context.
d.
Position of the Romanian orthodox Church
22. The prevailing attitude, expressed in a general
comment of the UN Human Rights Committee, is that states can acknowledge the
special role that a particular church or denomination has played in their
society, or even proclaim a religion to be its State religion, provided that
this does not lead to discrimination based on religious beliefs. Against this
background, Article 7, paragraph 2 of the draft law does not raise any
particular problem, in particular because it simply stresses the important role
of the Romanian Orthodox Church, as well as the important role played by other
recognised churches and cults.
e.
Judicial protection
23. One of the
means of exercising the right to manifest one’s religion, especially for a
religious community, in its collective dimension, is the possibility of
ensuring judicial protection of the community, its members and its assets, so
that Article 9 ECHR must be seen not only in the light of Article 11 ECHR , but
also in the light of Article 6 ECHR.
24. Article 31,
paragraph 1 of the draft law states that cults’ possessions (“goods” in the
draft law) which are the object of any type of offering
as well as any other possessions entered “legally” in the patrimony of a
cult cannot later be the object of claims. Although it
will eventually be up to the competent courts to decide whether or not the
possessions at issue have been “legally” acquired by the cults, this provision
may in some cases exclude - or at least seriously limit - the possibility for
individuals to challenge before a court the validity of the acquisition made by
the cults. Furthermore, Article 31, paragraph 3 of the draft law prescribes
that patrimony disputes between recognised cults have to be solved through friendly settlement, if not “then according to the common right”. The Commission considers that it should be made clearer that this
provision allows for a judicial review should a friendly settlement not be
reached. Such a precision would constitute a welcome improvement of the draft.
25. The
Commission notes that until recently, legal disputes on religious buildings between
the Greek-Catholic Church and the Orthodox Church had to be settled by a joint
commission made up of representatives of both cults according to Article 3 of
Law-Decree N° 126/1990 “on certain measures pertaining to the Greek-Catholic
Church of Romania”. Based on this piece of legislation, some Romanian tribunals
considered that this provision excluded any competence from the judiciary in
this field, while others took the view that Article 3 of Law-Decree N° 126/1990
obliged applicants to exhaust the avenue of the joint commission first, but did
not exclude a subsequent competence from the judiciary. Meanwhile, Law
N° 182/2005 completing Article 3 of Law-Decree N° 126/1990 has entered
into force. This new provision makes it clear that any interested party is now free
to appeal to court, but only if the above-mentioned joint commission does not
convene, does not come to any conclusion or adopts a decision which
dissatisfies either of the parties. The question of the compatibility of these arrangements
with the European Convention on Human Rights, in particular with the right of
access to a court (Article 6 ECHR), the right to freedom of religion (Article 9
ECHR) and the right to an effective remedy (Article 13 ECHR), is currently
pending before the European Court of Human Rights.
26. In view of
the foregoing and notwithstanding clarification brought by Law N° 182/2005,
the Commission would like to stress that Article 31 of the draft law is still likely
to raise issues of compatibility with the European Convention on Human Rights. This
is in particular the case as the scope of Article 31 of the draft law is wider
than that of Article 3 of Law-Decree N° 126/1990 as modified by Law
N° 182/2005 since it concerns all recognised cults and covers all
religious possessions, i.e. not only religious buildings. Depending on future developments
within the European Court of human Rights, it may therefore prove necessary to
review Article 31 of the draft law should this provision remain unchanged
before its adoption by Parliament.
27. Articles 19
and 20 of the draft law contain useful procedural guarantees applicable to the examination
of applications aimed at obtaining cults’ recognition. It is in particular
welcome to provide for the right to lodge an appeal with the competent judicial
authority against a Government’s decision either granting or refusing
recognition, in accordance with the Law of Administrative Litigation No
554/2004. It would be equally important to provide for a the same right in
Article 21, which authorises the Government to withdraw the quality of
recognised cult in certain cases.
28. According
to Article 26 of the draft law, the cults can have their own organs of
religious trial for matters of internal discipline, and in these matters the
statutory and canonical provisions are exclusively applicable. While noting
that this provision shows particular respect for the autonomy of religious
communities, the Commission nevertheless stresses that such a broad exclusion
of general procedural guarantees may not fully comply with the requirements of article
6 ECHR.
f.
Miscellaneous
29. Section 5
of Chapter II of the draft law deals with the educational system organised by
cults. Under the Law on Education, cults have the right to teach religion in
public schools and this right is reiterated in Article 39, paragraph 1 of the
draft law. In this context, it would be useful to clearly state in the draft
law itself that attendance to religious lessons within the public school system
is not compulsory.
30. According
to Article 48, paragraph 1 of the draft law, in proceedings regarding the
acquisition or loss of the status of religious association, the presence of the
prosecutor is compulsory. There is no mentioning of the (public) prosecutor
elsewhere in the draft law and it should be clarified in which capacity and for
which purpose the prosecutor should participate in the specific proceedings
under Article 48 of the draft law.
V.
Drafting issues
31. The draft
law is quite long and rather detailed, in the opinion of the Commission,
bearing in mind the nature of the matter to be regulated. While some provisions
could be drafted in a more concise way, others could simply be deleted. The
draft law would thereby be more easily accessible to those concerned.
32. Shortening
the draft law could also include the regrouping of redundant provisions. For
example, restrictions on freedom of religion and the activities of religious
communities, which are expressed in Article 2, paragraph 2 as well as in
Article 5, paragraph 3 of the draft law, are largely identical. The
possibility to exercise freedom of religion in community with others
(“collectively” in the draft law) is spelled out both in Article 2, paragraph 1
and Article 5, paragraph 1 of the draft law. The distinction between religious
associations and religious groups is mentioned in Article 5, paragraph 2 and
Article 6 of the draft law. Principles pertaining to taxation law and cults are
enshrined in Article 10, paragraph 2 and Article 11 of the draft law. The
cult’s right to self-organisation on the basis of internal statutes is provided
for in Article 8, paragraph 2 and 3 and Article 14, paragraph 2 of the draft
law.
33. The
appropriateness of maintaining certain provisions, which express self-evident
principles for which a normative endorsement may be superfluous, should be
reconsidered. Such provisions include Article 9, paragraph 5 of the draft law,
which provides for the possibility for the State to sign partnership agreements
with recognised cults; Article 13, paragraph 1 which recalls that relations
between cults are based on mutual respect and understanding; Article 32,
paragraph 3, which provides for the possibility to dismiss a teacher for severe
infringements to a cult’s doctrine or morale; Article 33, paragraph 2 and
Article 34, which recall that cults are competent to draw up school curricula
for their own institutions of education.
VI.
CONCLUSIONS
35. The draft
law has been the object of a commendable consultation process with representatives
of several religious. It contains provisions which, in principle, constitute a
satisfactory framework for the exercise of religious freedom in Romania, both by individuals alone and in community with others. The draft law remains,
however, based on a rather rigid frame in that it classifies religious
communities into three legal categories, with strict numerical requirements.
36. Increased
effort should be made to fully respect the autonomy of religious communities - including
in terms of self-organisation - which is an essential prerequisite for the
freedom of religion. Furthermore, provisions dealing with judicial protection
should be strengthened so as to better ensure the right of access to a court.
It is recommended that these and other suggestions made in the present opinion
be reflected in future amendments, so as to improve the overall quality of the
draft law and ensure its full compliance with international standards in this
field.
