The International Journal
of Not-for-Profit Law
Volume 6, Issue 1, September 2003
Petr Pajas*
Historical and Legal Background
In medieval times, the Czech lands (Bohemia, Moravia, and Silesia) forming the Kingdom of Bohemia became known for the religious revolt led by Jan Hus against the Catholic Church, specifically against its commercialization of absolution for sinners. Jan Hus was burned as a heretic in 1415, but his followers in Bohemia developed into a force able to sustain itself for more than two centuries, during which two ceremonial ways of Christian worship were allowed: the Catholic one and the one recommended by Jan Hus, later also applied by the Church of Moravian Brothers.
After 1625, however, the Catholic Church regained its full religious monopoly in Bohemia and Moravia under the Emperor Ferdinand of Habsburg. In about 1770, Emperor Joseph II introduced a reform that allowed the existence of some Protestant churches (except the old Czech ones) and abolished many monasteries, thus weakening the economic and educational powers of the Catholic Church.
In 1868 the churches in the Czech lands forming part of the Austro-Hungarian Empire lost their remaining exclusive rights with respect to running schools. The state administration took on the role of supervising basic and secondary education.
The first Czechoslovak Republic, formed in 1918, provided for equal treatment of all churches. Moreover, the state covered most of the costs of the churches by financially supporting priests of registered churches.
In 1949 the Communist government imposed direct supervision by state administrators over all property of churches. The state took over even the management of clergy education. Church budgets were subject to state supervision. Priests could deliver sermons and be paid only with state approval. Starting in 1971, approval was denied to persons who failed to prove their loyalty to the regime.
After November 1989, the humiliating provision requiring state approval for clergy was lifted. Churches were allowed to establish their own schools. All goods imported for churches were exempted from import taxes.
Act 308/1991 guaranteed freedom of faith, participation in and association for religious activities, and other rights related to religious or atheistic beliefs. All churches were explicitly granted the right to establish and operate specialized entities, such as schools, publishing houses, cultural institutions, and health and social care establishments, as well as the right to participate in providing such services through the overall legal and constitutional framework. Churches regained full sovereignty in appointing clergy and in providing spiritual assistance in the army, prisons, and similar institutions. The state introduced a salary scheme for clergy.
Since 1993 basic religious rights have formed an integral part of the Czech Republic’s constitutional order. These rights, however, protect only registered churches and religious congregations. For registration, Act 161/1992 required a petition signed by at least 10,000 residents of the Czech Republic, or by 500 adult residents who represent a church that is a member of the World Council of Churches.
New Law Regulating Churches and Their Establishments
In recent years, the media discussed at length the churches’ economic dependence on the state and their proper role in a democratic society; and the government and church representatives undertook a series of negotiations. Ultimately, Parliament approved Act 3/2002 on Freedom of Religion and on the Status of Churches, which amended previous laws and regulations.
Under the new law, a church seeking registration must submit a petition containing the personal data and signatures of at least 300 Czech Republic residents. In order to obtain additional specific rights, however, the church must have existed for at least 10 years and must have a membership equal to at least 0.1 percent of the population of the Czech Republic. Priests’ confessional secrecy is protected only after a church has existed for 50 years.
The registration conditions have been fulfilled and specific rights have been granted to more than 20 religious organizations, including all standard Christian churches and the Jewish community. However, some groups, including Muslims and the Hare Krishna, have not been granted these privileges. In addition, many newly formed congregations with few followers cannot even register.
The new law’s most important yet also most disputable change concerns the existence of legal persons established by churches. Article 6(2) defines a “religious legal entity” as a legal person established within the church pursuant to its internal regulations for the purpose of organizing, practicing, and promoting religious faith. This definition excludes most civic activities previously allowed for a church-created legal entity.
The law also includes a restrictive measure. Under Article 26, the Ministry of Culture may erase from the register a religious legal entity that does not operate within the framework of the law, or one that, under Article 28(5), has failed to show that it has brought its founding documents into compliance with the law.
President Vaclav Havel refused to sign this new law, stating that some of its provisions might endanger the very existence of the organizations Caritas (Catholic Church) and Diaconia ( Evangelic Church), and further that it might be interpreted as an implicit revival of state supervision over religious life. Parliament, however, overturned the presidential veto.
Dispute about Registration of Church-Established Legal Persons
Currently, Czech law provides legal forms suitable for establishments operating in the fields of social and health care, education, environmental protection, culture, etc. Act 248/1995 enables any person, including a church, to establish a public benefit corporation (company). Its founders may appoint a board of directors to oversee its activities, but otherwise the institution is fully independent. So long as it all devotes all profits to advancing the purpose for which it was created, the corporation may apply for public subsidy, receive private donations, and enjoy important tax benefits.
However, the new law on churches fails to provide a transitional mechanism for a church to re-register its charitable establishments as public benefit corporations. Instead, the church must first dissolve these establishments–which creates discontinuity in property titles, requires paying off the employees, and imposes other legal hindrances. After completing these liquidation activities, the church can establish a new public benefit company or an association, endow the entity with property or rent property to it, and enable this new legal person to seek and employ experts and to recruit volunteers.
Constitutional Court Changes the Law
In spring 2002, 21 of the 81 senators–members of the upper chamber of the Czech Parliament–submitted a petition asking the Constitutional Court to declare unconstitutional those provisions of Act 3/2002 that eliminate church autonomy in creating legal entities to perform community services.
In a ruling published in the Official Journal, the Constitutional Court said that churches should not be limited merely to practicing a faith; the church’s proper role in society is much broader, and includes publicly disseminating religious values. This dissemination takes place not only through religious activities, but also through charitable, humanitarian, and educational activities. According to the ruling, churches may establish independent legal entities to undertake such activities without having to subject themselves to a constitutive legal act of a state authority. The way in which the state keeps records about such legal entities should have only a declaratory character.
As a result, the Constitutional Court amended Act 3/2002 by repealing Article 6(2), which specified the concept and role of “religious legal entities.”
Ministry of Culture Refuses to Respect Court Ruling
However, the Ministry of Culture, which is responsible for maintaining the list of churches and their legal entities, refused to implement the decision of the Constitutional Court and instead developed its own interpretation of the law. The Ministry insisted on erasing from the register several units of Caritas and Diaconia. It maintained that, under its interpretation of the findings of the Constitutional Court, registration is required only for legal persons that comply with (the non-abolished) Article 3a of the new law. This provision recognizes “churches and religious congregations as voluntary communities of persons with their own internal structures, bodies, internal regulations, and religious ceremonies, which are established for the purpose of practicing a certain religious faith either in public or in private, including assembling, worshipping, educating and providing spiritual services.”
Based on this interpretation, the Ministry has no objection to registering nearly all membership-based religious bodies. But with respect to social and health care activities as well as economic activities, the Ministry argues that even after the decision of the Constitutional Court, enough provisions in other laws allow churches to establish such organizations on the same basis as other persons.
Impact on Charitable Services and Further Prospects
Do these disputes represent only a marginal problem of a few legal entities? A few statistics demonstrate that this is not the case. The Diaconia of the Evangelic Church operates as a union of about 30 individual centers, employing more than 1,000 employees, and serving more than 5,000 clients, mostly elderly people, severely mentally or physically handicapped people, and so-called “ineducable” children. Similarly, Caritas of the Catholic Church, with its regional and local units, has more than 4,000 employees serving more than 20,000 clients. It is hardly in the state’s interest to create a situation where thousands of persons in need either must be served by municipalities or institutions operated directly by the state, or must be returned to their families, if such families exist and can absorb the burden.
Moreover, the Ministry of Labor and Social Affairs and the Ministry of Health Affairs organize tenders and from their budgets significantly subsidize not-for-profit providers of social and health care services. To be eligible for a subsidy, a provider must be a registered legal entity. Loss of registration with the Ministry of Culture would result in a loss of subsidies and, consequently, would terminate most of the existing activities, leaving thousands of disabled and others without assistance.
The most recent developments include another petition to the Constitutional Court, this one alleging unconstitutional treatment of a unit of Caritas; a suit brought by Diaconia against the Ministry of Culture at the Supreme Administration Court; and requests by other organizations for an opinion from the Ombudsman. Nevertheless, the Ministry of Culture continues to insist that registration does not license an organization to carry out non-religious activities.
Notes
* Petr Pajas is an Associate Editor of the International Journal for Not-for-Profit Law and a regional coordinator for the International Center for Not-for-Profit Law. He serves as Executive Manager of First Consulting PBC, as an independent trainer in European Union affairs, and as an adviser to the Czech Government. The author would like to thank Dr. Lenka Deverova for providing documentation, hints, and valuable comments. This article originally appeared in the Summer 2003 issue of the Social Economy and Law (SEAL) Journal, published by the European Foundation Centre. We are grateful to SEAL for permission to reprint it.