EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
ON THE DRAFT
LAW
REGARDING THE
RELIGIOUS FREEDOM
AND THE GENERAL
REGIME OF RELIGIONS
IN ROMANIA
adopted by the Commission
at its 64th plenary session
(Venice, 21-22 October 2005)
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 fora 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 Romaniais 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. Thedrafters 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 Romaniaaccording 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.
