Legal status of Religious or Belief Minorities (RBMs)

KEY FINDINGS

1.  In most constitutions, there are no provisions that explicitly and directly promote RBM rights and no country has enacted a specific law on RBMs. 

2. France, Belgium and Greece have not ratified the relevant international treaties, thus failing to provide full protection of RBMs at the international level.

3. With the exception of Cyprus, Poland, Romania, Sweden, and, to a limited extent Belgium, constitutions do not contain provisions that explicitly and directly promote the rights of RBMs. Some, however, do contain provisions that promote the rights of the majority religion.

4. Some countries have an overly complex system for registering or recognizing RBMs, with different levels and different rights for each RBM.

5. In some countries, access to any level of recognition/registration is conditional upon RBMs having a minimum number of members and/or being active in the country for a minimum number of years. Sometimes these requirements may make the registration/recognition of a RBM exceedingly difficult.

RECOMMENDATIONS

1. All states should ratify the relevant international treaties, in order to provide full protection of the rights of RBMs at the international level.

2. Constitutional charters should include provisions promoting the rights of RBMs. 

3. States should take care that the provision of different levels of recognition/registration does not give rise to any form of discrimination against various RBMs.

4. The needs of smaller and more recent RBMs should be taken into account by State legislation which should avoid making registration/recognition conditional upon the existence of a large number of members of a RBM or years in which it has been active in the country. 

WHERE DISCRIMINATION IS MOST LIKELY

Romania and Austria require an RBM to have a very high number of members in order to obtain legal personality as a religious organization at the highest possible level. This may constitute discrimination against smaller RBMs that are unlikely to reach the required number of members. 

INTERACTIVE INFOGRAPHICS

1 promotion of rights
0 respect of international standards
-1 restrictions of rights
1 low equal treatment of RBMs
0 equal treatment of RBMs
0 no gap between religious majority and minorities
-1 high gap between religious majority and minorities
Hungary and Estonia: no majority religion
1 promotion of rights
0 respect of international standards
-1 restrictions of rights
1 low equal treatment of RBMs
0 equal treatment of RBMs
1 promotion of rights
0 respect of international standards
-1 restrictions of rights
0 no gap between religious majority and minorities
-1 high gap between religious majority and minorities

WHAT WE ARE TALKING ABOUT

 

What are the rights and obligations of RBMs and their members in EU countries?

The legal status of RBMs is very different from country to country. Both at the level of EU law and international law, there are few general rules that regulate these minorities in uniform terms. Therefore their legal status is largely dependent, for better or for worse, on the domestic legislation of each EU state. As pointed out by Capotorti, the attitude of states towards RBMs lies along a line that runs between two extremes represented

[…] by the case of recognition in the Constitution of the existence of a minority and the absence of any recognition at all. Between these two extremes, however, there are some middle positions: recognition of the basis of special legislation or administrative measures or the simple recognition of private institutions representing the interests of minority groups [F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, ST/HR(05)/H852/no.5].  

 

Are RBM rights protected by international law (Cluster A)?

In post-World War II international law, the notion of religious minority appears in Art. 27 of the UN Covenant on Civil and Political Rights (ICCPR, 1966). This article, in addition to protecting the rights of ethnic and linguistic minorities, guarantees the right of members of religious minority groups to profess and practice their religion “in community with the other members of their group”.

Evolving interpretations of the concept of religion and religious freedom by UN institutions have extended protection to include beliefs. Consequently, this provision has also been applied to belief minorities, along with indigenous peoples and minority groups resulting from migration.

Looking at Europe, the Council of Europe did not enact specific provisions devoted to guaranteeing the rights of religious minorities. However, in 1996 it approved the Framework Convention for the Protection of National Minorities. The link between RBMs and national minorities emerges in some provisions (Articles 1, 5, 6, 7, 8, 12, 17) and has been developed by the institutions of the Council of Europe, which have applied the Framework Convention to religious minorities.

According to international standards, states do not have any obligations to sign and ratify treaties on RBMs. Nevertheless, the implementation of these two international conventions promotes RBM rights.

 

Are RBM rights protected in the constitutions of the EU countries (Cluster B)?

The expression “religious or belief minorities” very rarely occurs in the constitutions of EU countries (among the few exceptions see the Belgian Constitution, Art. 11, and the Swedish Instrument of Government, Art. 2).  In some of them, RBM rights are regulated in provisions that make use of other expressions: Art. 8 of the Italian Constitution, for example, refers to “other religious denominations” to designate all religious organizations other than the Catholic Church, the majority religion in Italy and Art. 69 of the Danish Constitution refers to “religious bodies dissenting” from the Evangelical Lutheran Church, which is Denmark’s Folkekirche.

However, without attaching too much importance to a question of terminology, the absence of the expression “RBM rights” indicates that states generally refrain from committing themselves to promoting RBM rights in their constitutional charters, although some constitutions do contain rules that implicitly recognize the rights of RBMs in connection to specific activities or relationships with the state (see for example the Italian Constitution, Art. 8, and the Spanish Constitution, Art. 16.3).

Finally, the constitutional charters of all the EU states contain references to religion and belief in the rules guaranteeing the rights of freedom, equality and non-discrimination; some also contain references to the autonomy of religious or belief organizations and their cooperation with public institutions. Although these rules rarely mention RBMs, they contribute to protecting and promoting their rights.

While they hardly ever contain a reference to specific RBMs, the constitutions of EU countries sometimes mention the majority religion and/or the religious organization representing it (see for instance the Greek Constitution, Art. 3). This can be considered as a dutiful recognition of the historical, social and cultural roles that a religion or a religious organization has played in a country or as a way to distinguish the majority from minorities. In any case, mentioning the majority religion in the Constitution may have an indirect but significant impact on the legal status of RBMs.

States have no obligation to mention RBMs in their constitutions. However, the mention of RBM rights may be a way to strengthen their legal status.

 

Besides constitutional provisions, are there other laws that protect RBMs (Cluster C)?

In many EU countries there are laws regarding freedom of religion or belief and/or religious associations. The content of these laws does not always correspond to their title. Sometimes laws regarding freedom of religion or belief contain rules on religious associations and vice versa. The scope of application of these laws also differs. In some countries, such as Italy, there are laws that apply to all religious minorities with the exception of those that have stipulated an agreement with the state; in others, such as Poland, these laws apply to some religious minorities while others are regulated by ad hoc laws; in still others, such as in Estonia, the laws under discussion contain provisions that concern all religious organizations, regardless of whether they are majority or minority. 

Generally speaking, the provisions contained in these laws contribute to strengthening the legal status of RBMs, even though they sometimes introduce distinctions between minorities (large and small, old and new, etc.) that are the subject of conflicting assessments. However, states do not have the obligation to enact a law on religious freedom, or religious associations, or religious minorities. They are only required to grant RBMs such a legal status as to allow them to manifest the right to religion or belief in an individual and above all collective form.

 

Are there agreements between states and specific RBMs (Cluster D)?

In some EU countries there is a system of agreements between the state and specific RBMs.

In these countries, therefore, the legal regulation of these minorities is ensured by rules that have a different content depending on the RBM to which they apply. This system is different from that in place in countries where these agreements do not exist and where RBMs are regulated, at least in principle, by rules with the same content (see, for example, the case of France, with the exception of Alsace and Moselle). Regardless of any value judgements, these two systems reflect two profoundly different ways of conceiving relations between the state and religious organizations, one based on equality and the other inclined to value respect for diversity.

On the basis of what criteria does a state decide to enter into an agreement with a RBM? 

The list of RBMs that have stipulated such agreements with public institutions obviously differs from one state to another. This variety raises a number of questions. The most important one concerns the criteria governing the conclusion of these agreements. They differ from state to state but should everywhere comply with rules of transparency and fairness that allow RBMs to meet the requirements of the law to enter into an agreement with the state. 

Do these agreements concern only minorities or also religious majorities?

The situation differs from country to country. In some of the states that have opted for a system of agreements between the state and religious organizations, as in Austria, the agreements are stipulated only with the majority religious organization. In others, the agreement between the state and the majority religious organization has different formal characteristics from those between the state and RBMs. For example, in countries where the Catholic Church is the majority religious organization, relations with the state are regulated by concordats, which are generally considered as international conventions, while relations with RBMs are regulated by other forms of legislation, variously named (intese in Italy, acuerdos in Spain and so on), which are not regarded as relevant acts in the international legal system. In some cases this difference may affect the degree of resistance of these agreements to unilateral amendments by the state.

There is no obligation (nor prohibition) to enter into bilateral agreements with RBMs. According to OSCE/ODIHR (2014), Guidelines on the Legal Personality of Religious or Belief Communities, no. 40:

[…] the existence or conclusion of agreements between the state and a particular religious community, or legislation establishing a special regime in favour of the latter, does not, in principle, contravene the right to non-discrimination on the grounds of religion or belief, provided that there is an objective and reasonable justification for the difference in treatment and that similar agreements may be entered into by other religious communities wishing to do so […] [OSCE Office for Democratic Institutions and Human Rights (ODIHR), 2014, Part IV, no. 40, p. 38; see also European Court of Human Rights, Savez crkava “Riječ života” and Others v. Croatia, Application no. 7798/08, 9 December 2010, para. 85].

However, once these requirements are respected, the conclusion of an agreement between states and RBMs can be regarded as a way to foster 

the effective participation of religious minorities in decisions which affect them [United Nations OHCHR, The inclusion of religious minorities in consultative and decision-making bodies, September 2014; see also UN Human Rights Council, Recommendations of the Forum on Minority Issues at its sixth session: Guaranteeing the rights of religious minorities (26 and 27 November 2013), A/HRC/25/66, 22 January 2014, para. 36].

 

How can a RBM obtain legal personality (Cluster E)?

In the EU countries there are different ways of obtaining legal personality. In some cases, it is conferred by a special law, in others through registration or recognition. Moreover, a religious organization may be registered or recognized as an association under civil law (such as associations that do not have a religious character and purpose) or as a religious organization. In order to be recognized/registered as a religious organization, some states request particular requirements, such as a minimum number of members and/or years in which a RBM has been active in the country. These numbers vary from state to state and may in some cases constitute an undue limitation on the right to obtain legal personality. The procedure for recognition or registration also differs greatly from country to country. In Estonia, for example, it is entrusted to the courts, in other countries, such as Italy, it is the responsibility of the Ministry of the Interior, and in others still, such as in Greece, it is entrusted to the Ministry of Education and Religious Affairs.

RBMs have the right to obtain legal personality. The European Court of Human Rights (ECtHR) has ruled that

[…] the ability to set up a legal entity recognised by the State in order to guarantee the capacity for collective action in the religious sphere is one of the most important aspects of freedom of religion, without which that freedom would be meaningless […] [Guide on Article 9 of the European Convention on Human Rights: Freedom of thought, conscience and religion, 31 August 2022 (last updated), Chapter III, para. A, no. 169, p. 60].

The Conference on Security and Co-operation in Europe (CSCE) has stated that 

In order to ensure the freedom of the individual to profess and practise religion or belief, the participating States will, inter alia […] grant upon their request to communities of believers, practising or prepared to practise their faith within the constitutional framework of their States, recognition of the status provided for them in their respective countries [Concluding Document of the Vienna Meeting 1986, 1989, paras. 16 and 16.3, p. 8]).

According to the OSCE Guidelines on the Legal Personality of Religious or Belief Communities

[…] legislation should not make obtaining legal personality contingent on a religious or belief community having an excessive minimum number of members. […] Legislation should not necessitate a lengthy existence in the country as a requirement for access to legal personality […] [no. 27 and no. 28, pp. 27-28].

In the same sense, see also Bielefeldt, Ghanea, & Wiener: 

[r]egistration should neither depend on extensive formal requirements in terms of the number and citizenship of members at the national or local level nor on the time a particular religious group has existed in the country concerned [H. Bielefeldt, N. Ghanea, & M. Wiener, Freedom of Religion or Belief: An International Law Commentary, Oxford: Oxford University Press, 2016, p. 228].

Once it is clear what the rights of RBMs are, it is possible to assess the legal systems in place in the EU countries.  In all of them RBMs can acquire legal personality by registering as religious association, with the exception of Belgium and Cyprus where this possibility does not exist. In some of these countries (Croatia, Denmark, Estonia, Finland, France, Italy, Poland, and Sweden) there is only one level of registered religious associations, in others (Austria, Greece, Hungary, Portugal, Romania, and Spain) there are at least two, for each of which different rights are provided. 

But differences do not end there. In some countries (Denmark, Estonia, France, Romania and Sweden) registration as a religious association confers the highest legal status that a RBM can attain; in others, however, above this level there is another one, that of RBMs that either obtain legal personality through an ad hoc law (and thus enjoy higher rights than registered RBMs) or enjoy a particularly favorable legal status defined by special laws or agreements with the state, although they have obtained legal personality through registration. This group includes Austria, Croatia,  Finland, Greece, Italy, Poland, Portugal and Spain.

The attached table shows this complex picture.

Taking into account how complex these national legal systems are and the fact that both the levels of legal personality and the rights corresponding to each of them are different from state to state, how is it possible to measure the extent to which each of them promotes RBM rights? The least common denominator among all these systems is the existence of a lower and a higher level of attribution of legal personality, the latter endowed with rights that are not provided for the former. Thus, it is plausible to assume that RBM rights are best promoted by states that place more RBMs at the highest level, whatever that may be in a state's legal system (registration as an RBO, enactment of an ad hoc law, conclusion of an agreement). An example may help clarify this statement. France places 10 RBMs at the highest level of attainable legal recognition and status, and 2 RBMs at the lowest level (registration or recognition as civil law association). Greece places 1 RBM at the highest level, which corresponds to the enactment of an ad hoc law, 5 at the middle level (registration/recognition as RBOs) and 6 at the lowest level (registration/recognition as civil law association). Although different rights correspond to each level in the French and Greek legal system, the former is likely to promote RBM rights more than the latter, because a higher number of RBMs is placed at the highest level of recognition. 

Therefore, to measure how much each national legal system is likely to promote RBM rights, the Atlas assigns the score "1" to the highest attainable level in a state's legal system; "0" to the lowest (recognition of legal personality as a civil law association), "0.50" to the intermediate level (when it exists); "0.25" or "0.75" when this intermediate level is itself split into a lower and higher level. These scores are multiplied by the number of RBMs placed at each level: 0.33 if the number of RBMs is between 1 and 1/3 of all RBMs; 0.66 if it is between 1/3 and 2/3; 1 if  it is more than 2/3 (this is the proportional criterion that is always applied by the Atlas). 

The attached table aims to simplify the understanding of this complex system of measuring the rights of RBMs. 

There is a last factor that requires to be taken into consideration. Obtaining legal personality as RBO may be conditioned by the existence of certain requirements, which become more burdensome the more rights are conferred by the level of legal personality to which access is sought. In most cases these requirements relate to the number of adherents of a RBO and the number of years it has been active in a country: the lower these numbers are, the more difficult it is to obtain legal personality. These limitations are not in themselves contrary to international standards, which allow states to make the acquisition of legal personality subject to certain conditions (as long as these conditions are not excessively burdensome): however, they undoubtedly affect the promotion of RBM rights (see OSCE/ODIHR, Guidelines on the Legal Personality of Religious or Belief Communities, 2014, nos. 27-28; H. Bielefeldt, N. Ghanea, & M. Wiener, Freedom of Religion or Belief. An International Law Commentary, Oxford: University Press, 2016, p. 228). The Atlas has therefore developed a methodology for measuring the weight of these limitations (see Explanation of scores. Legal status, questions 12 ff.). Following this criteria, a negative score was given only to two countries, Austria and Romania, where, in order to acquire legal personality at the highest level (Romania) or the highest category of the intermediate level (Austria), an RBM is required to have a number of adherents equal respectively to 2% and 1% of the population, a much higher number than that required to access the same level of legal personality in the other two countries, Greece and Spain, which require a minimum number of adherents. Among the other states those that do not impose any limit are Estonia, Finland, France, Italy and Sweden. 

Rossella Bottoni and Silvio Ferrari

 

 

GUIDE TO READING DATA

This guide provides some keys to interpreting the three indices (P-index, E-index and G-index) built on the basis of the Atlas data.

 

P-index (States)

1. It is not easy to evaluate how much a legal system promotes minority rights. Each European country applies different systems for dealing with RBMs, especially in the area of their recognition/registration, and this requires a complex reading grid capable of including all the variables (see what is written in reference to cluster E).

2. The countries with a legal system that most promotes the rights of RBMs are Poland and Sweden. In spite of the religious, cultural and legal differences that separate them, these two countries ensure protection and promotion of RBMs at both international (cluster A) and national level (clusters B and C), guarantee to a good number of RBMs the right to be registered/recognized as religious organizations (cluster D) and do not place particularly severe constraints on the acquisition of legal personality (cluster E).  At the other end of the scale are France, Belgium, and Greece. France is disadvantaged primarily by its failure to sign international conventions protecting the rights of RBMs, Belgium and Greece also by the limited number of RBMs that can obtain legal personality as religious organizations. Between these two extremes are the other countries, with Italy more supportive and Cyprus less supportive of RBMs.

3. Disaggregating the data by cluster aids a better understanding of these initial findings.

Cluster A. The low scores of France, Belgium and Greece can be explained by the fact that they have not signed the Framework Convention for the Protection of National Minorities (which includes provisions protecting RBMs) and, in the case of France, also by the fact that a reservation has been made to Article 27 of the International Covenant on Civil and Political Rights (ICCPR). All other countries have ratified both conventions and thus obtain a much higher score.

Cluster B. RBMs are largely ignored in most of the constitutional charters of the countries under research. Only the constitution of Sweden (Instrument of Government, Art. 2) declares itself in favor of the possibility for religious (as well as ethnic and linguistic) minorities to "preserve and develop a cultural and social life of their own” while that of Belgium presents a specific norm in favor of BOs. The constitutional texts of two other countries - Romania (Art. 6.1) and Poland (Art. 35.2) - do not explicitly mention RBMs but contain a reference to religious identity in the norms for the protection of ethnic and national minorities. The declaration of the Hungarian constitution to "value the various religious traditions of our country" was not considered for scoring purposes because it is too general and included in the preamble, which has no legally binding value. More frequent are constitutional references to the majority religion. They are included in the constitutions of Cyprus (Art. 110), Denmark (Art. 4), Finland (Art. 76), Greece (Art. 3), Italy (Art. 7), Poland (Art. 25.4), Spain (Art. 16.3) and in the Instrument of Government of Sweden (Art. 2) and contribute to increasing the distance between majority and minority religions indicated in the G-index.

Cluster C. The legal systems of most European countries include laws on freedom of religion and belief or religious organizations. They contain rules that apply to RBMs and help protect their rights. The exceptions are Belgium and Cyprus, which has no such legislation. In two cases (Finland and Greece), these laws also contain provisions that provide special protection to specific RBMs.

Cluster D. Some countries (Croatia, Hungary, Italy, Portugal, Spain) have entered into agreements with RBMs or have enacted laws agreed with RBMs (Poland). In this way, the principle of participation has been implemented, allowing RBMs to take part in decision-making processes on matters that directly concern them. For this reason, a moderately positive score has been given to those countries which have concluded such agreements.

Cluster E. This is undoubtedly the most complex cluster, and to analyze the data collected in it, it is advisable to divide it into two parts. The first (questions 8-11.2) concerns the different types of legal personality that RBMs can qualify for. In the countries of the European Union there are multiple levels of recognition or registration of religious organizations: everywhere there is a higher and a lower level; sometimes there are also one or two intermediate levels. Each of these levels corresponds to a different set of rights, which are greater for the highest level and progressively lesser as one descends. The rights of RBMs are thus better promoted if a large number of them can reach the higher levels and obtain more rights. From this point of view, the countries where RBMs enjoy the most opportunities are Hungary, Austria, Croatia, Estonia, France, Denmark, and Sweden; those, on the other hand, in which RBMs are more frequently relegated to the lowest levels (and therefore have fewer rights) are Cyprus, Romania, Belgium, Greece, and Spain.

But there are other elements that need to be taken into account (questions 12-13.3). In some countries, access to either level of recognition/registration is conditional upon an RBM having a minimum number of members and/or being active in the country for a minimum number of years. Although the imposition of these conditions is contrary to international standards only when they are particularly onerous, these requirements can significantly limit the rights of RBMs. The countries where they are most severe, and where it is therefore more difficult for RBMs to access the highest levels of recognition/registration, are Austria and Romania; those where these requirements are not explicitly prescribed (although it is possible that they are informally taken into account) are Estonia, Finland, France, Italy, Poland, and Sweden.

Combining these two indicators (number of RBMs that can access the highest levels of recognition of legal personality and limits to recognition/registration), it appears that the countries where RBMs have the greatest possibilities of accessing the highest level of recognition/registration provided by the legal system of a state are Estonia, France and Sweden, while those where these possibilities are the least are Romania, Austria, Belgium, and Spain.

4. The data regarding the legal status of RBMs confirm that the best way to promote RBM rights is providing a simple legal system, based on a single level of recognition/registration, with easy access to all RBMs: this is the case in Estonia, France, and Sweden. 

 

P-index (RBMs)

 

The RBMs whose rights are most promoted are, in descending order, the Catholic and the Orthodox Churches and, on equal footing, the Protestant Churches, the Jewish, and the Islamic communities. A step lower are placed, on the same level, the Buddhist communities, Jehovah's Witnesses, and Mormons and finally, further down, the Hindu and Sikh communities, BOs, and Scientology. This ranking is not too different from that which characterizes the other policy areas: at the highest level are the Christian churches, followed by the Jewish and Islamic communities, at the lowest level are the BOs (which, except for Belgium, are rarely placed on an equal footing with religious organizations), Scientology (which is particularly disadvantaged in France and Belgium) and Sikhs (who are few in number and unlikely to attain the legal status of larger communities).

 

E-index (States)

The country where the legal framework for RBMs is most homogeneous are Austria and Romania (where the gap between the most favoured and most disfavoured RBM is 6 points). At the other end of the equal treatment scale are Belgium and Greece, where the same gap is 19 points. In Belgium, there is a particularly wide gap between BOs and all other religious organizations and another gap between recognized and non-recognized RBMs; in Greece the dividing line runs between the RBMs which receive a specific legal regulation in the 2014 law and all others. 

 

G-index (States and RBMs)

The data confirm what has already emerged in the analysis of other policy areas. The RBMs that come closest to the legal status of the majority religion are always the Christian minorities; those that are furthest away are Scientology and the BOs. 

Considering the states, the gap between majority and minorities is smaller in France, where the separatist tradition is strong, and in Belgium where the majority Church scores relatively low. On the other hand, the same gap is very wide in Denmark, Italy, Finland, Poland and Spain, where the majority Church enjoys a specific legal status.

 

 

 

RESOURCES

The text of the most important state laws concerning RBMs can be found at

https://www.legislationline.org

For a review of the case-law of the ECtHR see

Council of Europe: European Court of Human Rights (updated on 2022, August 31). Guide on Article 9 of the European Convention on Human Rights: Freedom of thought, conscience and religion 

The indication of the main documents of the Council of Europe and other international organizations concerning the legal status of RBMs can be found in

Council of Europe: Committee of Ministers (2016). Human rights in culturally diverse societies: Guidelines adopted by the Committee of Ministers and Compilation of Council of Europe standards

The criteria that, according to the norms of international law, must be followed to register/recognize religious or belief organizations are indicated and discussed in

OSCE Office for Democratic Institutions and Human Rights (ODIHR) (2014). Guidelines on the Legal Personality of Religious or Belief Communities

An overview of the rules governing RBMs in EU countries can be found in

Ventura, M. (ed.) (2021). The Legal Status of Old and New Religious Minorities in the European Union. Granada: Editorial Comares.

See also 

Kitanovic, E., & Schnabel, P. R. (eds.) (2019). Religious Diversity in Europe and the Rights of Religious Minorities. Geneva: Globethics.net

A chapter devoted to the state-religions relations in each EU state (with some references to RBMs) is contained in

Robbers, G. (ed.) (2019). State and Church in the European Union. Baden-Baden: Nomos

Robbers, G., & Durham Jr., W. C. (eds.) (2016). Encyclopedia of law and religion. Leiden: Brill Nijhoff