Država, crkva i sloboda veroispovesti

Abstract

State, church and freedom of religion are undeniably among the most important matters of the society, without which one cannot imagine modern life. The relationship between the state and the church represents a centuries-old form of coexistence of the two institutions. Their position in the society, degree of mutual interdependence and influence on one another have changed throughout the history. They have almost always existed one next to another and, in the present times, their relationship can be very diverse, largely dependent on the country under analysis, its history, as well as its social, cultural and moral circumstances. If we look at the state as some form of institutionalized power, which has a monopoly of legitimate coercion on its territory, we will certainly not see the church as the body of Christ, or as a building in which religious ceremonies are performed, nor as a community of Christian believers, but as a subject of religious freedom, because this study elaborates the whole matter through legal analyses and legal interpretations, and relies strictly on legal texts. In the first part of this study, the relationship between state and the church is presented, through a theoretical, historical and, finally, a comparative analysis. Due to the complexity of the state-church relations, only certain models of organisation of state-church relations systems will be analysed. It is immediately apparent that there are no pure models of such relationships and that they are all more or less mixed models, which differ as much as they resemble each other. That is why all the classifications of models of state-church relations are rather theoretical, and in a way even artificial, and their purpose solely is to make it easier to see certain issues in different countries. That is why the study adopts a classification of the model of relationship between state and church which seems to be the most unpretentious, which comprises: a) states with a national church, b) states that rely on a secular approach, and c) states where there is a separation between church and state authorities, but at the same time there are also present, to a greater or lesser extent, certain forms of their cooperation. Under each of these three models of system of state-church relations, several states are analysed. The given analysis is undertaken with the aim to fully depict the legal situation in the selected countries. The underlying assumption is that the state’s attitude towards religion is primarily a matter of a political choice, and is the result, to a large extent, of the historical tradition and the social, moral and cultural circumstances of each country. The first part of the study aims to serve as an introduction for the second part, which deals with the right to and freedom of religion as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to and freedom of religion is an inalienable segment of human life, and in the Convention this right and this freedom are defined in such a way as to protect believers and those who are not belivers. Freedom of religion includes the freedom, either alone or in community with others, in public or in private, to practice one’s religion or belief, whether through worship, observance of religious customs or teaching. Freedom of religion also includes the right not to have a religion or belief, and to change one’s religion. The international protection of the freedom of religion advanced significantly during the second half of the twentieth century. In order for this protection to be complete, the European Court of Human Rights was established. In essence, a large part of the text refers to the way in which the Court perceives and judges cases in which individuals complain about the threat to their freedom of religion. Freedom of religion is one of the oldest and the most controversial of all human rights and has been the object of international concern from the very beginnings of modern judicial protection. The analysis of the relevant jurisprudence also shows the main tendencies in the Court’s understanding of what constitutes and what does not constitute a violation of the freedom of religion according to the provisions of the Convention. Although the Convention does not deal with the definition of religion or freedom of religion, it greatly influences the definition of the concept of religion, especially the distinction between churches, religious communities and unrecognized religious sects. In this context, the Court supplements, elaborates and explains the rights and freedoms laid down in the Convention. However, in some situations, the decisions of the Court come in contradiction with the legislation of individual countries. When the state ratifies parts of the Convention on the basis of which the Court has reached its decision in an individual case, the state is also obliged to align its legislation with the Court’s recommendations. It is important to note that Article 9 is not aimed at imposing any particular uniform model of relations between state and religion. This is where the problem usually arises because no country is willing to give in easily to the Court’s requests to change the national laws, upon the order of the Court. It is precisely these types of situations that the Court wants to avoid, so some of its judgments may not fit into the view of fairness and principle, because it chooses to adhere to the positions of national legislation and judicial instances. This is only a general view of the protection of freedom of religion within the framework of the European Union given that it is not possible to go into a detailed analyses of individual cases or of the Court’s case-law, about which numerous books and articles have been already written. The intention is to highlight all the important segments of the matters related to the state, the church and freedom of religion.