<pre>                               
                          Pl US 6/02



The  Czech  Republic is founded on the principle of  a  secular
state.  Under  Art.  2  para. 1 of the Charter,  the  state  is
founded on democratic values and "may not be bound either by an
exclusive  ideology or by a particular religious faith."  Thus,
it  is  Republic must accept and tolerate religious  pluralism,
meaning that, above all, it must not discriminate against,  or,
on  the contrary, give unjustified advantage to, any particular
religious  faith. It also follows from the cited  article  that
the state must be separate from specific religions.
   The  principle of religious pluralism and tolerance is  also
implemented  in Art. 15 para. 1 and in Art. 16 of the  Charter.
Art.  15  para.  1  of  the Charter provides  that  freedom  of
thought, conscience and religious faith is guaranteed, and that
everyone has the right to change his religion or faith or to be
non-denominational. Under Art. 16 of the Charter, everyone  has
the  right  to  freely manifest his religion or  faith,  either
alone  or  in community with others, in private or  in  public,
through  worship, teaching, practice or observance  (para.  1).
Churches  and religious societies govern their own affairs;  in
particular  they establish their own governing  bodies,  ordain
their  clergy,  and  found religious orders  and  other  church
institutions independently of state authorities (para. 2).  The
exercise of these rights may be limited by law, in the case  of
a  measure which is necessary in a democratic society  for  the
protection  of public safety and order, health and  morals,  or
the   rights  and  freedoms  of  others  (para.  4).   As   the
Constitutional Court has already stated in the past, unlike the
freedom  of conscience and religious faith, for the restriction
of  which  the Charter does not expressly provide any  possible
conditions, the freedom to practice a religion or faith can  be
limited  by statute for the reasons cited. However, this  means
the ability to limit the exercise of these rights, not of their
regulation  by the state (decision of 8 October 1998  file  no.
IV.   US  171/97,  the  Constitutional  Court:  Collection   of
Decisions, vol. 12, p. 457 et seq).
    It   is  evident  from  this  that  religious  freedom  can
fundamentally be defined primarily as a forum internum (Art. 15
para.  1  of  the Charter), i.e. as the freedom of everyone  to
profess a particular religion or faith, in which third parties,
and in particular the state power can not interfere. This is  a
status  negativus,  or  libertatis  (G.  Jellinek),  a  typical
delineation of the area of an individual's liberty in which the
state  power  may not enter. However, at the same  time  it  is
evident that limiting religious freedom to a forum internum  is
insufficient, because the very defining element of  freedom  of
religion  is  the right of everyone to externally  express  his
religion,  naturally  while observing the  limiting  safeguards
provided in Art. 16 para. 4 of the Charter.
   The  foregoing also directly gives rise to the principle  of
autonomy   of  churches  and  religious  societies,  consisting
primarily of the rule that the state may not interfere  in  the
activities  of  churches and religious societies,  and  if  the
activities  of  churches are limited to  internal  affairs  (in
particular  organizational division), in principle  it  is  not
possible  to  review these measures before  state  courts  (The
German  Constitutional  Court has  ruled  analogously,  BVerfGE
18/385).
   Finally,  the  Constitutional Court  states  that  religious
freedom  is  not guaranteed only at the level of  domestic  law
(that  is, primarily the cited provisions of the Charter),  but
also  enjoys  international law protection (e.g.  Art.  18  the
Covenant  and  Art. 9 of the Convention). In this  regard,  the
Constitutional  Court emphasizes that the  Czech  Republic  is,
under  Art.  1 para. 1 of the Constitution, a democratic  state
governed by the rule of law, founded on respect for the  rights
and  freedoms of the human being and the citizen. In this case,
the   cited   principle   indicates,  above   all,   that   the
Constitutional  Court  must  take as  its  starting  point  the
domestic  or  international law framework  which  provides  the
higher  standard  of  protection  for  fundamental  rights  and
freedoms. If, in this case, the domestic framework contained in
the  Charter  provides greater protection  of  rights  than  is
provided by the cited provisions of international treaties, for
that reason alone it must be applied first.



The  Plenum of the Constitutional Court decided, in the  matter
of  a  petition  from a group of 21 senators to annul  Act  no.
3/2002 Coll., on Freedom of Religion and the Status of Churches
and  Religious Societies and Amending Certain Acts (the Act  on
Churches   and  Religious  Societies),  or  to  annul   certain
provisions of that Act, as follows:

   I. The provision of § 6 para. 2, § 21 para. 1 let. b), §  27
para. 5, second sentence in the part "and the profit earned may
be  used only to meet the aims of the activities of a church or
religious society" and § 28 para. 5 of Act no. 3/2002 Coll., on
Freedom  of  Religion and the Status of Churches and  Religious
Societies  and Amending Certain Acts (the Act on  Churches  and
Religious  Societies), are annulled as of the day this  finding
is promulgated in the Collection of Laws.
  II. The other parts of the petition are denied.



                           REASONING

On  13  February  2002  the  Constitutional  Court  received  a
petition  from  a  group of 21 senators of the  Senate  of  the
Parliament of the Czech Republic to annul Act no. 3/2002 Coll.,
on Freedom of Religion and the Status of Churches and Religious
Societies  and Amending Certain Acts (the Act on  Churches  and
Religious  Societies)  -  ("Act  no.  3/2002  Coll.").  If  the
Constitutional Court does not grant this petition, the group of
senators  proposes the annulment of certain provisions  of  Act
no. 3/2002 Coll., either § 6 para. 1 a nd2, § 11, § 16, § 20, §
21,  § 22 para. 1 let. d), § 26, § 27 para. 4 and 5, § 28 para.
4  and  5  and § 29 in the part "and the Register of  religious
legal  entities" ("wider annulment"), or – as the case may  be,
without postponing the executability of the annulment verdict -
'  6  para.  1,  §  6  para. 2 in the  part  "for  purposes  of
organization, profession and propagation of religious faith  as
legal entities," § 11 para. 1 let. b) and c), § 16 para.  2  to
5, § 20 para.1 let. f), § 21 para. 1 let. a) and b), § 22 para.
1 let. d), § 26 para. 1 let. b) to d), § 26 para. 2, 4 and 5, §
27  para. 4 and 5, § 28 para. 4 and 5 and § 29 in the part "and
the   Register   of   religious  legal   entities"   ("narrower
annulment"). The petitioners believe that the contested Act  as
a   whole,   or  its  individual  provisions,  as  cited,   are
inconsistent  with Art. 4 para. 4, Art. 15 a  Art.  16  of  the
Charter  of  Fundamental Rights and Freedoms  (the  "Charter"),
Art.  18  of the International Covenant on Civil and  Political
Rights  (the  "Covenant"), Art. 9 of  the  Convention  for  the
Protection  of  Human  Rights  and  Fundamental  Freedoms  (the
"Convention")  and  Art.  1 of the Constitution  of  the  Czech
Republic (the "Constitution").
  The petitioners first point to the fact that, compared to the
existing  legal  framework, Act no.  3/2002  Coll.  lowers  the
standard  for  protection  of  religious  freedom  and   brings
excessive  state authority into citizens' private sphere.  When
the draft act was being prepared a number of reservations arose
on  the  part of political and church entities, and the passage
of  the act in the legislative process did not go smoothly,  as
it  was rejected by the Senate, and after being passed again by
the  Chamber of Deputies it was returned to the Chamber by  the
president  of  the republic. In § 4 para. 3 the  contested  Act
inaccurately  paraphrases Art. 16 para. 1 of the Charter,  also
gives a reference to the Charter in a footnote, and provides no
vacatio legis, although it considerably changes the obligations
and  authorization of the state administration, as well as  the
legal  status  of a number of entities. Moreover,  this  change
breaks   legal   continuity,  which  could   have   unfavorable
consequences for these entities.
   The  petitioners base their petition on the fact that, under
Art.  15 and 16 of the Charter, the state can not limit freedom
of  religion or interfere in it if the exercise of that freedom
does  not endanger the rights of others, but must only  protect
it,  which  is  a  typical example of  the  concept  of  status
negativus , where the state need not aid the exercise of  these
rights  by positive activity, but may not interfere in  it.  It
follows  from  this that the state basically  may  place  legal
demands  on  churches  or  religious  societies  (further  also
referred  to  only  as  "churches") only  if  the  churches  or
religious  societies are, at the same time, receiving something
from  the state. However, the contested Act is not fully  based
on  this  concept, because it does not respect the  independent
position  of  churches, which is different from that  of  other
legal  entities  in private law, in view of historical  reasons
and  the  society-wide significance of churches  and  religious
societies,  whose  activities can not  be  reduced  to  actions
related to the professing of a particular faith, because  these
institutions  also  fill  a number of other  roles,  which  are
inalienable and irreplaceable from the viewpoint of  the  state
and the society, even that part of society which is not part of
them. Therefore, according to the petitioners, the state should
grant  churches  and  religious societies a certain  privileged
status,  which,  however, it does not do; on the  contrary,  it
disadvantages  them  compared  to  other  legal  entities.  The
effective   activities  of  churches  and  religious  societies
requires  various organizational forms, which  the  concept  of
informal  associations  professing  a  common  faith  does  not
supply. In the petitioners' opinion, these institutions  should
have the right to create various organizations with status as a
legal  person, as indicated by Art. 16 para. 2 of the  Charter,
under  which churches and religious societies can found  church
institutions,  which  are granted legal personality  status  by
religious law, according to its own rules, and not according to
the  rules  specified by the state. The state can  not  specify
when  a  church  acquires legal personality  status   or  which
religious institutions can have legal person status granted  to
them  by church and religious societies and which ones can not.
However,  § 6 para. 1 of Act no. 3/2002 Coll. expressly  states
that   religious  legal  entities  become  legal  entities   by
registration under this Act (or analogously under § 28  of  Act
no.  3/2002  Coll.  through the legal fiction  that  they  were
registered). Even if we speak of record-keeping of these  legal
entities,  in fact they are being registered, as a register  of
religious legal entities is being established. According to the
petitioners, it is certainly not permissible for the  state  to
be  able  to  remove  legal  person  status  from  these  legal
entities, as is made possible by § 26 para. 2 of Act no. 3/2002
Coll. Likewise, one can not agree that our state would have the
authority to grant legal person status to churches duly  formed
abroad,  because  that  framework is  much  stricter  than  the
framework  for the conduct of business by foreign entrepreneurs
in  the  Czech Republic. This leads to a violation of  Art.  16
para.  2 of the Charter, because the act makes the creation  of
religious legal entities subject to a decision by a state body,
that  is,  it  limits  freedom  of  religion  far  beyond   the
constitutionally permitted framework.
   The group of Senators argues further that it is evident from
the  wording  and  purpose of Art. 16 of the Charter  that  the
freedom of churches and religious societies to create religious
institutions  can not be reduced only to founding  institutions
which  do  not  have  legal  person  status,  but  applies   to
institutions  endowed with the capacity for legal  acts,  which
arises   from   the   mission  of  these  institutions,   whose
significance  can  not be compared to that of ordinary  private
law  associations.  In view of this fact,  it  is  puzzling  to
compare  Act  no. 3/2002 Coll. with Act no. 83/1990  Coll.,  on
Association of Citizens, as amended by later regulations, which
permits  civic  associations – unlike  churches  and  religious
societies – to found "organizational units" as subsidiary legal
entities which have their own legal person status, even  though
it  is  dependent  on the legal existence of  the  association.
Although  Art. 16 para. 4 of the Charter makes it  possible  to
restrict  churches and religious societies in the  creation  of
religious  institutions, Act no. 3/2002 Coll. does not  observe
the constitutional safeguards provided in that article, because
if  the  legal  creation  of religious  institutions  were  not
subject  to  record  keeping  (registration),  this  could  not
endanger the protection of public safety and order, the  health
and  morals  or  the rights and freedoms of  others.  For  that
reason  the  contested framework is a violation of the  ban  on
arbitrariness on the part of state power. It does  not  observe
the  principle  of  the  state  exercising  self-restraint   in
interfering  in  the  freedom of religion,  under  which,  when
fundamental rights and freedoms are limited, their essence  and
significance  must  be  preserved and limitations  may  not  be
misused  for  purposes other than those  for  which  they  were
provided (Art. 4 para. 4 of the Charter).
   The  petitioners also contest § 6 para. 2 of Act no.  3/2002
Coll.,  which  restricts  churches and religious  societies  to
establish  religious  legal  entities  only  for  purposes   of
organization,  profession and propagation of  religious  faith,
because  this  framework does not take  into  account  a  whole
series of activities, such as charitable, humanitarian, health,
and other activities which these legal entities have heretofore
performed.  Limiting  the scope of their  activities  basically
excludes  churches  from society. The group  of  senators  also
considers unconstitutional the legal framework contained  in  §
26 para. 4 of Act no. 3/2002 Coll., under which the obligations
of  a  "religious  legal entity" are to be  guaranteed  by  the
church  or  religious society which proposed its entry  in  the
records,  because  it markedly disadvantages  the  creation  of
these  entities  in comparison to the founding  legal  entities
under  the  Commercial Code, as well as the founding  of  civic
associations' derivative legal entities.
   The petitioners also point to § 27 para. 4 and 5 of Act  no.
3/2002  Coll.,  which restricts the autonomy  of  churches  and
religious  societies  guaranteed by Art.  16  para.  2  of  the
Charter.    In   addition,   this   provision   is   internally
inconsistent,  because under § 27 para. 5  of  Act  no.  3/2002
Coll.  churches  and religious societies may conduct  business,
but  at  the  same time this provision limits  the  conduct  of
business, because it provides that the profits earned may  only
be  used to fulfill the aims of the activities of a churches or
religious  society. All depreciated investment  assets  can  be
acquired  only  from the profits of the legal  entity,  and  in
order for a church to be able to acquire assets for the conduct
of  business, it must acquire them from its profits.  Thus,  it
can  not  continue  to conduct business and acquire  production
materials, when it is forced to use all its profits to  fulfill
its aims and not for the further conduct of business.
     Finally,    the   group   of   senators   also   considers
unconstitutional the legal framework of § 11 of Act no.  3/2002
Coll.,  which  makes the recognition of a church  or  religious
society's  authorization to exercise special rights subject  to
the  requirement  that  it  must duly fulfill  its  obligations
toward  the state and third parties and publish annual reports,
which  de  facto  introduces state supervision of  the  private
financing of churches and religious societies, including  at  a
time  when  they  are  not receiving any  state  contributions.
Concerning  § 21 para. 1 let. a) a b) of Act no. 3/2002  Coll.,
which specifies the conditions for annulling this authorization
if  churches  in a serious manner or repeatedly  violate  their
obligations toward the state or other parties or if they do not
publish  an annual report every year, the petitioners  consider
that  regulation  to  be  a  violation  of  the  principle   of
proportionality, because, although the state may  restrict  the
financing  of  churches and religious societies  for  financial
debts, it can not forbid the exercise of other rights (e.g.  to
teach  religion  or  conclude marriages) or annul  their  legal
person  status.  In addition, the cited regulation  creates  an
opportunity  for arbitrariness in the decision  making  of  the
relevant body, because to open proceedings in these matters  it
is  sufficient  for an administrative body to claim  that  some
obligations exist, without them being, for example,  recognized
with  legal  effect  by a court. This regulation  discriminates
against  churches and religious societies compared to  business
entities  and  civic associations. This also applies  to  §  22
para.  1  let.  d)  of Act no. 3/2002 Coll.,  under  which  the
ministry shall open proceedings to annul registration if, for a
period  of  more  than  2  years,  governing  bodies  were  not
established,  or their term of office ended and new  ones  were
not  established, because the Commercial and Civil Codes do not
establish any penalties for such violations. For these reasons,
the  group of senators proposes annulment of the entire Act no.
3/2002  Coll.,  in  view of its overall concept,  which  limits
rights  guaranteed  by supra-statutory norms  and  reduces  the
standard  of  protection of religious freedom compared  to  the
previous framework. If the Constitutional Court does not  grant
this petition, the group of senators proposes annulment of  the
incriminated provisions of Act no.3/2002 Coll.

II.
The  Constitutional  Court found that  the  submitted  petition
meets all legal procedural requirements and prerequisites,  and
nothing  prevents it from discussing and deciding  the  matter.
Therefore,  under  §  69  of Act no.  182/1993  Coll.,  on  the
Constitutional  Court, as amended by later  regulations,  ("Act
no.   182/1993  Coll.")  it  called  on  the  parties  to   the
proceedings  –  the Chamber of Deputies and the Senate  of  the
Parliament   of  the  Czech  Republic  –  to  submit   position
statements concerning the petition.
   The Constitutional Court also requested a position statement
from the Ministry of Culture.
The  Constitutional  Court also requested a position  statement
from  the  Ecumenical Council of Churches in the Czech Republic
and a position statement from the Czech Conference of Bishops.

III.
The Constitutional Court first, in accordance with § 68 para. 2
of Act no. 182/1993 Coll., considered whether the act which the
petitioners   claim  to  be  unconstitutional,  or   individual
provisions  of  which  they claim to be  unconstitutional,  was
passed   and  issued  within  the  bounds  of  constitutionally
provided  jurisdiction  and  in a  constitutionally  prescribed
manner.
…..
The   Act  no.  3/2002  Coll.  was  passed  and  issued  in   a
constitutionally  prescribed manner and within  the  bounds  of
constitutionally  provided jurisdiction, and that  the  quorums
prescribed  in  Art. 39 para. 1 and 2 of the Constitution  were
observed.

IV.
In  evaluating  the petition from the group  of  senators,  the
Constitutional Court feels a need to speak first – on a general
level,   at   least   briefly  –  concerning   the   individual
constitutional   principles  of  religious   freedom   in   the
constitutional order of the Czech Republic. In this  regard  it
starts with the following facts.
   The  Czech Republic is founded on the principle of a secular
state.  Under  Art.  2  para. 1 of the Charter,  the  state  is
founded on democratic values and "may not be bound either by an
exclusive  ideology or by a particular religious faith."  Thus,
it  is evident that the Czech Republic must accept and tolerate
religious  pluralism,  meaning that, above  all,  it  must  not
discriminate  against,  or, on the contrary,  give  unjustified
advantage  to, any particular religious faith. It also  follows
from  the  cited article that the state must be  separate  from
specific religions.
   The  principle of religious pluralism and tolerance is  also
implemented  in Art. 15 para. 1 and in Art. 16 of the  Charter.
Art.  15  para.  1  of  the Charter provides  that  freedom  of
thought, conscience and religious faith is guaranteed, and that
everyone has the right to change his religion or faith or to be
non-denominational. Under Art. 16 of the Charter, everyone  has
the  right  to  freely manifest his religion or  faith,  either
alone  or  in community with others, in private or  in  public,
through  worship, teaching, practice or observance  (para.  1).
Churches  and religious societies govern their own affairs;  in
particular  they establish their own governing  bodies,  ordain
their  clergy,  and  found religious orders  and  other  church
institutions independently of state authorities (para. 2).  The
exercise of these rights may be limited by law, in the case  of
a  measure which is necessary in a democratic society  for  the
protection  of public safety and order, health and  morals,  or
the   rights  and  freedoms  of  others  (para.  4).   As   the
Constitutional Court has already stated in the past, unlike the
freedom  of conscience and religious faith, for the restriction
of  which  the Charter does not expressly provide any  possible
conditions, the freedom to practice a religion or faith can  be
limited  by statute for the reasons cited. However, this  means
the ability to limit the exercise of these rights, not of their
regulation  by the state (decision of 8 October 1998  file  no.
IV.   US  171/97,  the  Constitutional  Court:  Collection   of
Decisions, vol. 12, p. 457 et seq).
    It   is  evident  from  this  that  religious  freedom  can
fundamentally be defined primarily as a forum internum (Art. 15
para.  1  of  the Charter), i.e. as the freedom of everyone  to
profess a particular religion or faith, in which third parties,
and in particular the state power can not interfere. This is  a
status  negativus,  or  libertatis  (G.  Jellinek),  a  typical
delineation of the area of an individual's liberty in which the
state  power  may not enter. However, at the same  time  it  is
evident that limiting religious freedom to a forum internum  is
insufficient, because the very defining element of  freedom  of
religion  is  the right of everyone to externally  express  his
religion,  naturally  while observing the  limiting  safeguards
provided in Art. 16 para. 4 of the Charter.
   The  foregoing also directly gives rise to the principle  of
autonomy   of  churches  and  religious  societies,  consisting
primarily of the rule that the state may not interfere  in  the
activities  of  churches and religious societies,  and  if  the
activities  of  churches are limited to  internal  affairs  (in
particular  organizational division), in principle  it  is  not
possible  to  review these measures before  state  courts  (The
German  Constitutional  Court has  ruled  analogously,  BVerfGE
18/385).
   Finally,  the  Constitutional Court  states  that  religious
freedom  is  not guaranteed only at the level of  domestic  law
(that  is, primarily the cited provisions of the Charter),  but
also  enjoys  international law protection (e.g.  Art.  18  the
Covenant  and  Art. 9 of the Convention). In this  regard,  the
Constitutional  Court emphasizes that the  Czech  Republic  is,
under  Art.  1 para. 1 of the Constitution, a democratic  state
governed by the rule of law, founded on respect for the  rights
and  freedoms of the human being and the citizen. In this case,
the   cited   principle   indicates,  above   all,   that   the
Constitutional  Court  must  take as  its  starting  point  the
domestic  or  international law framework  which  provides  the
higher  standard  of  protection  for  fundamental  rights  and
freedoms. If, in this case, the domestic framework contained in
the  Charter  provides greater protection  of  rights  than  is
provided by the cited provisions of international treaties, for
that reason alone it must be applied first.

V.
Concerning  the  petition to annul the entire  Act  no.  3/2002
Coll.,   the   Constitutional  Court  states  that   even   the
petitioners  themselves  basically  do  not  present   relevant
arguments  for a justified presumption that the entire  act  is
unconstitutional.  If the petitioners state  –  only  generally
–that  the  contested act provides a lower  standard  of  human
rights  compared to Act no. 308/1991 Coll., parts of  which  it
repealed,  and find unconstitutionality just in that fact,  the
Constitutional Court has no choice but to point to its  settled
case law, under which the annulment of a contested statute does
not  revive  a  previous statute which it repealed  or  amended
(finding   of  12  February   2002  file  no.  Pl.  US   21/01,
promulgated on 11 March 2002 under no. 95/2002 Coll.). Even  if
the  Constitutional Court agreed with the presented opinion  of
the  petitioners  and (only) for that reason annulled  Act  no.
3/2002 Coll., this would not revive Act no. 308/1991 Coll., and
there  would  merely be an objective need to pass a  completely
new law governing the subject matter of churches. Moreover,  it
must  be  pointed  out that the reason for  annulling  a  legal
regulation can not be merely comparison of it with the previous
legal  framework,  as  the  petitioners  indicate,  but  solely
finding  that it is inconsistent with the constitutional  order
of the Czech Republic.
   For  these reasons, the Constitutional Court states that  it
did  not find the petition – not justified in more detail –  to
annul  the  entire  Act no. 3/2002 Coll. to  be  justified  and
therefore  further  considered  only  the  petition  to   annul
individual provisions of Act no.3/2002 Coll. or the petition to
annul certain parts of them. In doing so, it also considered in
each   case   those  provisions  whose  content  was   directly
interrelated.

VI.
The  question of registration of churches, religious societies,
and record keeping of religious legal entities:

The text of the contested provisions:

§ 6 para. 1, 2:
Registered churches and religious societies
   (1) A church or religious society becomes a legal entity  by
registration (a "registered church or religious society") under
this Act, unless this Act specifies otherwise.
   (2) A registered church or religious society may propose for
recording  a  body  of  a  church or  religious  society  or  a
religious order or other religious institution founded within a
church or religious society under its internal regulations  for
purposes   of  organization,  profession  and  propagation   of
religious  faith as a legal entity under this Act (a "religious
legal entity").

§ 16:
Recording of religious legal entities
  (1) An application to record a body of a registered church or
religious  society  or  a religious order  or  other  religious
institution as a legal entity shall be filed by the body of the
church  or religious society designated thereto in the founding
document submitted under § 10 para. 3.
   (2)  An  application to record a legal entity under para.  1
must   contain  a)  a  document  about  its  founding  by   the
appropriate body of the registered church or religious  society
according  to  its  founding document, b)  delineation  of  its
activities  and its by-laws, if they exist, c) its name,  which
must  be  different from the name of any legal entity which  is
already  conducting activities in the Czech Republic  or  which
already  applied to be recorded, d) its registered  address  in
the Czech Republic, e) identification of its statutory body  in
the  Czech  Republic, f) personal data of the  members  of  its
statutory body.
   (3)  A registered church or religious society shall file  an
application  under  para. 1 within 10 days  from  the  day  the
religious  legal entity is founded. The Ministry  shall  record
the  religious  legal entity by an entry  in  the  Register  of
religious  legal entities within 5 business days from  the  day
the application is delivered. The record shall be made by entry
as  of  the  day  the entity was founded within the  registered
church or religious society.
  (4) If a registered church or religious society does not meet
the  deadline provided in para. 3, the record shall be made  by
entry  as  of  the  day  the application is  delivered  to  the
Ministry under para. 1.
  (5) If the application under para. 1 does not contain all the
requirements under para. 2, the Ministry, shall, no later  than
10  business days after the application is delivered,  call  on
the   body  of  the  registered  church  or  religious  society
authorized  to  file it to complete the application  or  remove
inadequacies,  to do so within a period of 30 days,  and  shall
inform it that if this deadline is not met, proceedings on  the
application will be stopped.

§ 20:
Register of religious legal entities
   (1)  The following information and changes to it are entered
in the Register of Religious Legal Entities: a) the name of the
religious legal entity, with the record date and number, b) the
legal  entity's  registered address in the Czech  Republic,  c)
identification of the religious legal entity's statutory  body,
d)  personal information of the members of the religious  legal
entity's  statutory body, e) the identification number  of  the
religious  legal entity, f) cancellation of the record  of  the
religious  legal  entity, entry into liquidation  and  personal
data  of the liquidator, declaration of bankruptcy and personal
data  of  the bankruptcy administrator, denial of a filing  for
bankruptcy  due to a lack of assets and opening of  proceedings
on  settlement,  with the date and number of  the  decision  on
these facts, g) identifying data of the legal successor of  the
religious  legal  entity,  if it  is  wound  up  with  a  legal
successor, h) the termination of the religious legal entity.
   (2)  The  Register  of Religious Legal Entities  includes  a
collection of documents containing documents submitted  in  the
application  to  record  the  religious  legal  entity  and  in
applications to change the record.
   (3)  Data under paragraph 1 let. d) and changes to it  shall
be, on the basis of an application from a registered church  or
religious  society, replaced by identification of the  body  of
the  church or religious society which maintains this data  and
changes to it and which is required, for the record keeping  of
this  part  of  the  Register of Religious Legal  Entities,  to
appropriately observe § 17.

§ 22 para. 1 let. d):
Canceling the registration of a church or religious society  or
a union of churches or religious societies
(1)   The  Ministry  shall  open  proceedings  to  cancel   the
   registration of a church or religious society or proceedings to
   cancel  the registration of a union of churches or religious
   societies
…..
   d)  if, for a period of more than 2 years, the bodies of the
registered church or religious society or the statutory  bodies
of  a  union  of  churches  or  religious  societies  were  not
established, or the term of office of the existing  bodies  and
statutory  bodies  ended more than 2 years previously  and  new
ones were not established.


§ 26:
Cancellation  of a record of a religious legal entity  and  its
termination
  (1) The Ministry shall cancel the record of a religious legal
entity  a)  at  the  application of the  registered  church  or
religious  society  within 5 business days  from  the  day  the
application  is  delivered, b) on its  own  initiative,  if  it
determines   that   the  religious  legal  entity   is   acting
inconsistently with the delineation of its jurisdiction in  the
application  for recording under § 15 para. 4 or inconsistently
with  legal  regulations, and if the appropriate  body  of  the
registered  church or religious society does not  correct  this
after being called upon to do so by the Ministry, as of the day
the decision to terminate the record went into legal effect, c)
on  its  own initiative, if the registration of the  church  or
religious society, which applied to record the religious  legal
entity  terminates, as of the day the decision  to  cancel  the
registration  of  the church or religious society  under  §  24
para.  3  goes  into legal effect d) if bankruptcy  proceedings
were  filed against the religious legal entity, by cancellation
of  the  bankruptcy  because  the distribution  resolution  was
fulfilled  or  by  cancellation of the  bankruptcy  because  of
insufficient  assets to cover the bankruptcy  expenses,  or  by
rejection  of  the  filing for bankruptcy due  to  insufficient
assets.
   (2)  A  religious legal entity ceases to exist upon deletion
from the records in the Register of Religious Legal Entities.
   (3)  The termination of a religious legal entity is preceded
by  it  being cancelled with liquidation, or cancelled  without
liquidation, if its assets and obligations are transferred to a
church  or religious society or another religious legal  entity
thereof.
   (4) If, during liquidation of a religious legal entity,  its
assets are insufficient to cover its obligations, the church or
religious  society,  which  proposed  it  for  recording  shall
guarantee these obligations.
   (5)  If  a  religious  legal entity  is  terminated  without
liquidation, and if a bankruptcy filing is not made against it,
the  date of its cancellation shall be the date of its deletion
from Register of Religious Legal Entities.

§ 28 para. 4 and 5:
    (4)   Registered  churches  or  religious  societies  under
paragraph  1  are required, within 1 year after this  Act  goes
into  effect, to provide the Ministry completed data under this
Act  for  purposes  of their registration or  recording.  If  a
registered  church or religious society does not complete  this
data, the Ministry shall call upon it to complete the data by a
deadline  of  at  least  30  days from  the  day  the  call  is
delivered. If a registered church or religious society does not
complete the data by that deadline, the Ministry may, depending
on  the  nature  of  the incomplete data, open  proceedings  to
cancel its registration.
   (5) A registered church or religious society is required  to
complete, within 1 year from the day this Act goes into effect,
data on recorded religious legal entities under this Act by the
body  designated thereto in its founding document. If the  data
on  the  religious  legal  entity are  not  completed  by  that
deadline, the Ministry shall call upon the registered church or
religious  society to complete the data by  a  deadline  of  at
least  30  days  from  the  day the call  is  delivered.  If  a
registered  church or religious society does not  complete  the
data by the specified deadline, the Ministry may, depending  on
the  nature  of the incomplete data, cancel the record  of  the
religious legal entity. For religious legal entities which have
been  in  existence  for  more than 50 years  the  document  on
founding under § 16 para. 2 let. a) of this Act can be replaced
by a sworn statement from the church or religious society.

  The words "and the Register of Religious Legal Entities" in §
29:

Authorizing provision
The Ministry shall specify by decree the details and conditions
for   maintaining  the  Register  of  Registered  Churches  and
Religious  societies,  the Register  of  Unions  of  Registered
Churches  and Religious Societies and the Register of Religious
Legal  Entities  and models of all extracts of registration  or
records under this Act.

The  Constitutional Court states that the essence of the  cited
provisions  of  Act no. 3/2002 Coll. is (I.)  establishing  the
principle,  that  the legal creation of a church  or  religious
society  takes  place at the moment of registration,  which  is
done by the relevant ministry. The same body is also authorized
to   cancel  a  registration.  (II.)  A  registered  church  or
religious society can be proposed to the ministry for recording
by  a  religious legal entity, and the act regulates in  detail
the  requirements  of such a record, defines  the  Register  of
Legal  Entities  and  also regulates the  cancellation  of  the
record of a legal entity and its termination.
   On  the  question of registration of a church  or  religious
society, the Constitutional Court states the following (re I.):
   1.  Under  § 6 para. 1 of Act no. 3/2002 Coll., a church  or
religious  society  becomes a legal  entity  upon  registration
under  this Act, unless the Act provides otherwise. This  means
that the text of Act no. 3/2002 Coll., which is a component  of
domestic  law, positively governs the creation of legal  person
status of the cited religious society, and thus that the  legal
creation   of  these  entities  is  derived  from  registration
performed by the Ministry. Therefore, an individual legal  act,
the  registration,  has  constitutive  effects,  and  basically
represents  the state's acceptance in relation to the  creation
of a particular association.
  2. In this regard the Constitutional Court could not overlook
the framework contained in the repealed Act no. 308/1991 Coll.,
to  which the petitioners also expressly refer. Under § 4 para.
2  of  that  Act, it was provided that "a Church  or  religious
society  functions in the Czech and Slovak Federative  Republic
on the basis of registration." The previous legal framework was
based  on  the fact that churches or religious societies  could
legally  exist  independently of its their  acceptance  by  the
state power, nonetheless, if they wanted to legally function in
the  state,  registration  was  required.  The  state  did  not
recognize churches or religious societies other than registered
ones (§ 4 para. 4 of Act no.308/1991 Coll.).
   3. It is evident that the formulation used in § 6 para. 1 of
Act  no.  3/2002  Coll.  is  considerably  different  from  the
previous  regulation. Whereas Act no. 308/1991 Coll.  regulated
the process of registration of churches and religious societies
expressly  only for purposes of their function in the  domestic
environments,  and did so primarily because  of  the  need  for
legal certainty for third parties, at first glance the text  of
the  new  statutory  framework aspires to the  registration  of
these  legal  entities  having constitutive  effects,  i.e.  it
evokes the impression that a domestic administrative act  leads
to  the legal creation of churches or religious societies, that
is,  their  general legal capacity. However, it must  be  added
that  such  an approach would clearly not correspond  with  the
nature  of a number of churches and religious societies,  whose
legal  existence often arises not from state law but from canon
law  (or  international law) and the state power therefore  can
not  have  ambitions  to  regulate these  institutions  by  law
(including   constituting  them),  but  only  to  limit   their
activities  in  cases enumerated in Art.  16  para.  4  of  the
Charter.
   4.  The  Constitutional Court also points out that relations
between  the  Catholic  Church (the Holy  See)  and  individual
states  are  traditionally governed by international agreements
(concordats).   These   agreements   primarily   regulate   the
organization of religious institutions within a given state. It
is  evident that the legal person status of the Catholic Church
is  undisputed and the domestic legal order can not in any  way
interfere in it or cast it in doubt. Confirmation of  this  is,
for example, the text of  Art. 1 of the draft Agreement between
the Czech Republic and the Holy See on the regulation of mutual
relations, under which the named parties recognize each other's
international  law legal personality  and consider  each  other
independent  entities under international  law,  and  agree  to
fully respect this status.
   5.  In a number of its previous decisions the Constitutional
Court  emphasized  the  fact that it gives  preference  to  the
principle  of  constitutionally  consistent  interpretation  of
legal  regulations over annulment of them. In this case  it  is
evident that the legislature, through the differing formulation
of  the cited provision – compared to the previous § 4 para.  2
of  Act  no. 308/1991 Coll. – created a somewhat unclear  legal
situation, which does not fully correspond to, for example, the
requirements  imposed on the creation of laws by  the  European
Court  for  Human  Rights,  which  consist  of  observing   the
conditions  for  a statute of accessibility, understandability,
and  foreseeability  of its consequences.  Thus,  only  a  norm
formulated sufficiently precisely that it makes it possible for
a citizen to adjust his actions accordingly (Hashman and Harrup
v. United Kingdom, Reports of Judgments and Decisions, European
Court  of  Human Rights no. 1/2000, p. 46) can be considered  a
"statute." However, the Constitutional Court believes that  the
inconsistency of § 6 para. 1 of Act no. 3/2002 Coll.  with  the
cited  constitutional safeguards, claimed by  the  petitioners,
can    be    overcome   by   a   constitutionally    consistent
interpretation, and that therefore it is not necessary to annul
it.
   6. Therefore, in this regard the Constitutional Court states
that  §  6  para. 1 of Act no. 3/2002 Coll. can not affect  the
legal   person   status  of  churches  under  religious   legal
regulations  or international law, rather it only sets  certain
conditions   for  recognizing  their  legal  personhood,   also
ensuring  a minimum of protection for other parties to  private
law property relationships. Thus, a constitutionally consistent
interpretation  of  §  6 para. 1 of Act  no.  3/2002  Coll.  is
primarily such that this provision can not be used to cast  any
doubt  on  the already existing general legal person status  of
churches  and religious societies and their rights to existence
independently  of  acceptance by a state (the Czech  Republic).
The  function of registering them is thus the same  as  in  the
case  of  the  regulation contained in Act no. 308/1991  Coll.,
which,  however,  reflected this fact, in its  chosen  wording,
substantially   more  accurately  –  that  is,   only   setting
conditions  for the functioning and legally relevant activities
of  churches and religious societies in the Czech Republic, not
the creation of their general legal capacity.
  7. The Constitutional Court further states that, similarly to
the foregoing, the cancellation of registration of a church  or
religious society (or cancellation of registration of  a  union
of churches and religious societies), contained in § 22 para. 1
let.  d) and § 28 para. 4 of Act no. 3/2002 Coll. must also  be
interpreted consistently with the Constitution. Insofar as  the
Constitutional Court concluded that the state is authorized  to
set   conditions  for  the  functioning  and  legally  relevant
activities  of  churches and religious societies in  the  Czech
Republic   and  formally  express  these  conditions   in   the
institution  of registration, it is also necessary  to  respect
the   state's   right  to  set  conditions  for  removing   the
opportunity for this legally relevant functioning by  a  church
or  religious society in the Czech Republic if these conditions
are violated.
   8.  Therefore, the Constitutional Court concluded that  §  6
para.  1,  §  22 para. 1 let. d) and § 28 para. 4  of  Act  no.
3/2002  Coll. are not inconsistent with Art. 16 para. 2,  4  of
the  Charter,  and  therefore it denied the petition  to  annul
them.

On  the  question of the recording of religious legal entities,
the Constitutional Court states the following:
   1.  The Constitutional Court states, first of all, that Art.
16  para. 2 of the Charter regulates the right of churches  and
religious  societies to manage their affairs, in particular  to
establish their bodies, ordain their clergy and found religious
orders and other religious institutions independently of  state
bodies. This is thus a fundamental right enjoyed by churches or
religious  societies  as particular legal entities  (see,  e.g.
decision of the Constitutional Court of the CR file no. IV.  US
171/97, Collection of Decisions, vol. 12, p. 468, and similarly
decision  of the  Constitutional Court of the SR of 10  October
1995  file  no. II. US 128/95, Collection of Decisions  of  the
Constitutional Court of the Slovak Republic 1995, Kosice, 1996,
p.  322  et  seq). The content of this right is  the  right  to
autonomy, that is the right to be independent of the  state  in
the  management of one's affairs. The guarantee of  freedom  to
organize   and  manage  one's  own  affairs  is   a   necessary
prerequisite for freedom of religious life and the  functioning
of a church, which requires, for the preservation of its tasks,
freedom  to  establish its organization, promulgate  norms  and
manage  itself (see, e.g., finding of the German Constitutional
Court,  BVerfGE 70/138). The position of specialized literature
also takes as its starting point the premise that Art. 16 para.
2 of the Charter does not rule out, and presumes, that external
state review will be exercised for the preservation of laws  in
these  special  associations "to protect the  values  cited  in
para.  4 of the article. However, this statutory regulation  of
the  relationship of the state to these associations would  not
be  able  to  limit the independence of churches and  religious
societies  concerning the founding of their  bodies  and  other
questions   of  internal  life"  (V.  Pavlicek  et   al.:   The
Constitution  and  the  Constitutional  Order  of   the   Czech
Republic, part 2 – Rights and Freedoms, Linde, 1996, p. 154).
   2.  The  Ministry  of  Culture, in  its  position  statement
concerning  the petition states – in this regard  –that  it  is
necessary to differentiate the various areas of the functioning
of  churches  and  religious  societies  and  that  this  legal
framework must be differentiated from the individual rights and
freedoms of citizens, because "the legal regulation of churches
and  religious  societies  is  not  intended  to  regulate  the
individual rights of citizens or of each person in the area  of
faith  and  religious affiliation." The Ministry of Culture  is
also  of the opinion that the petitioners incorrectly and self-
servingly  mix the concepts "church institution" and "religious
legal  entity,"  as  the contested Act respects  the  right  of
churches  and  religious societies to found church institutions
without legal person status but a broad interpretation  of  the
Charter  to  include  autonomous founding  of  religious  legal
entities  allegedly "violates the constitutional  principle  of
state sovereignty."
   3. Therefore, a disputed question in this case is evaluation
of  whether creating religious legal entities can be  subjected
to  Art.  16  para. 2 of the Charter or not.  In  other  words,
whether   founding   religious  orders  and   other   religious
institutions  can  be understood either restrictively,  in  the
sense that this constitutionally guaranteed right applies  only
to  internal  church institutions which do not have  individual
legal person status, or whether, on the contrary – in the broad
sense  – this provision also applies to institutions with their
own legal person status.
   4.  The  German Constitutional Court, for example,  accepted
that  "the concept of the Catholic Church includes the practice
of  religion  not only in the area of faith and  services,  but
also  freedom  to  develop and function  in  the  world,  which
corresponds  to  its religious tasks. These include  especially
charitable  functions.  Active love of one's  neighbors  is  an
essential  task for Christians, and is understood by  Christian
churches  as  a  basic function. It includes not only  hospital
care provided by the church, but is generally, according to the
basic  religious  requirements, oriented toward  providing  for
needy  people,  including raising and educating them"  (BVerfGE
70/138 57/220). In this regard it is also appropriate to  point
to  Art.  10 of the draft Agreement between the Czech  Republic
and the Holy See Governing Their Relations (note, in particular
the  Minister  of  Culture, in his position  statement  on  the
petition,  points to this Agreement), under which the  Catholic
Church  founds,  in accordance with its own regulations,  legal
entities  for  the organization and profession of the  Catholic
faith  "and for its functioning, in particular in the areas  of
education,  health care, and social and charitable care."  This
means  that  the  draft of the agreement unambiguously  accepts
that the (Catholic) church is entitled to found religious legal
entities and respects their functioning not only in the area of
professing  a  faith,  but also in other areas,  which  are  an
inseparable and indispensable component of every active  church
or religious society.
   5.  Thus, if § 6 para. 2 of Act no. 3/2002 Coll. limits  the
right  of  a church or religious society to propose a religious
legal  entity for recording only "for purposes of organization,
profession,   and   propagation  of  religious   faith,"   this
restrictively defined concept is in evident conflict  with  the
very  aim  and purpose of churches and religious societies  and
testifies to a fundamental failure to understand them, as their
activities  are  naturally not reduced only to presentation  of
religious   faith,  but  through  their  external   activities,
exceeding the mere practice of religion, they radiate into  the
entire  society and are also a necessary prerequisite  for  the
functioning  of a civil society. This limitation  is  evidently
inconsistent  with  Art. 16 para. 2 of  the  Charter,  as  that
article   guarantees  the  right  of  churches  and   religious
societies   to   found  religious  orders  and   other   church
institutions independently of state bodies, while § 6  para.  2
(like  the related provision, § 28 para. 5) makes the  creation
of religious legal entities subject to a recording performed by
the Ministry.
   6. It is evident that the limiting of the legal creation  of
religious legal entities arising from the cited provisions also
does  not  correspond with the reasons for which it is possible
to   limit  the  exercise  of  these  rights,  enumerated   and
positively enshrined in v Art. 16 para. 4 of the Charter. These
limitations, which in view of their nature must be  interpreted
restrictively,  may  arise  only  in  the  case  of   "measures
necessary in a democratic society to protect public safety  and
order,  health  and  morals,  or the  rights  and  freedoms  of
others."  Applying an argument a contrario, it is evident  that
the  statutorily  provided limitation of  a  fundamental  right
enshrined  in  Art. 16 para. 2 of the Charter by the  specified
condition of recording religious legal entities by the Ministry
does not fall under any of the cited constitutional safeguards,
and   therefore,  for  that  reason  as  well,   this   is   an
unconstitutional limitation which does not respect the autonomy
of  churches and religious societies and the plurality of their
activities.  In any case, as is also indicated by  the  settled
case  law  of the European Court for Human Rights, to  limit  a
fundamental  right, three basic conditions  must  be  met:  the
limitation  must  be  set  by  statute,  must  be  aimed  at  a
legitimate goal, and must be necessary in a democratic society.
However, in the adjudicated matter it is evident that only  the
first  of these conditions has been met, and state interference
in  the  founding  of  religious  legal  entities  can  not  be
described  as  aiming at a legitimate goal, nor  as  a  measure
which is necessary in a democratic society.
  7. The Constitutional Court also states that according to the
wording of the cited provisions the legal creation of religious
legal  entities  is tied to recording and not to  registration.
Thus,  from  a  theoretical  law standpoint,  the  creation  of
religious  legal  entities  should  be  given  a  substantially
"looser  regime" than other legal entities recognized by  Czech
law. Recording, by its nature (in contrast to registration), is
not  a  constitutive,  but  merely  a  declarative  legal  act.
Therefore, an "already established institution" can be proposed
for  recording, and the effects of the record are, as a  matter
of  principle, dated retroactively, i.e. to the day of founding
of  the  religious  legal  entity by  a  registered  church  or
religious  society,  and  not only to  the  day  of  recording.
However,  from  a  factual  viewpoint  and  the  viewpoint   of
application,  one can not overlook the fact that  there  is  no
marked difference between recording and registration, as it  is
regulated  in  the  contested Act, as the  Act  provides  clear
conditions for the recording application, and if they  are  not
fulfilled  –  which the Ministry is authorized  to  evaluate  –
recording   will   not  be  performed  (read:  this   religious
institution  will  not be created), and the  Ministry  is  also
authorized,  in  enumerated cases, to cancel the  record  of  a
religious legal entity if, for example, it determines that  the
religious  legal  entity  is  acting  inconsistently  with  the
definition  of  its  jurisdiction or in (unspecified)  conflict
with legal regulations.
   8.  In  the  legal  environment of the Czech  Republic,  the
Constitutional Court also could not overlook the fact that  the
right  to  associate in churches and religious societies  is  a
special form of the exercise of freedom of association.  It  is
true  that "ordinary" associations have, under Act no.  83/1990
Coll.,   the  right  to  establish  organizational   units   as
subsidiary  legal entities, derived from the association  as  a
whole  and  having  legal person status (see,  e.g.  I.  Telec,
Spolkove  pravo, C.H. Beck, 1998, p. 148 et seq), and in  order
to establish these legal entities in principle it is sufficient
to have in the by-laws a regulation which permits it. Thus, the
creation  of these subsidiary legal entities is not subject  to
acceptance  on the part of the state. It is worth pointing  out
the   manner  of  legal  coming  into  existence  of  a   union
organization or an employers' organization, which  takes  place
ex  lege  on  the  day after an application  for  recording  is
delivered  to  the Ministry (§ 9a para. 1 of  Act  no.  83/1990
Coll.).  From this comparative domestic law viewpoint as  well,
the   statutory  requirement  for  recording  religious   legal
entities  is  unjustified.  In  other  words,  as  churches  or
religious  societies  are, in their significance,  non-fungible
with  ordinary  associations, and if ordinary associations  can
establish   legal   entities  without  state  interference,   a
statutory  limitation  on  the  creation  of  religious   legal
entities through recording by a state body is not justified.
   9.  The  arguments  of  the Ministry  of  Culture  that  the
autonomous  founding of religious legal entities  violates  the
constitutional principle of state sovereignty must be rejected,
for  the reason that the concept of a democratic state governed
by  the  rule of law is closely connected with the  idea  of  a
liberal  state which tolerates a plurality of social  phenomena
and   institutions.   Therefore,  the    principle   of   state
sovereignty  can not be understood in a manner  so  broad  that
even  the  very  legal existence of any legal entities  derived
from  a  legal  fact other than the express acceptance  by  the
state power would necessarily be inconsistent with it. The idea
of  a liberal state governed by the rule of law is based on the
premise  that  the  state is to limit its own interference  and
influence only to such cases where it is necessary and where it
unambiguously   corresponds  with  the  public   interest.   An
overactive state influence and arbitrary regulation  of  social
phenomena  is clearly inconsistent with this concept. Moreover,
in  the  case of churches and religious societies  it  must  be
taken  into  account that they are often historic institutions,
existing continuously under various forms of government and  in
various  state frameworks. Therefore, the state should approach
these  institutions,  representing the  exercise  of  religious
freedom,  especially  sensitively, and  should  very  carefully
weigh  its  restrictive principles, and  limit  them  to  truly
justified cases.
   10.  On the basis of the foregoing, the Constitutional Court
concluded  –  guided  by the principle of  self  restraint  and
minimization of interference – that § 6 para. 2 and § 28  para.
5  of  Act  no.  3/2002  Coll.  are  unconstitutional.  In  the
Constitutional Court's opinion, these provisions directly  give
rise to subjecting the legal coming into existence of religious
legal  entities to a state decision, i.e. de facto registration
of  them,  even though in the Act it is formally  described  as
recording.  However, because the Constitutional Court  did  not
find  convincing  reasons for casting doubt  on  the  principle
itself  of recording these entities (in the true sense, not  in
disguised registration, as it is in the context of the annulled
§  6  para.  2  of the Act), and it believes that recording  is
appropriate,   in   particular  in  terms  of   fulfilling   an
information function and the function of protecting the  rights
of third parties, it denied the petition to annul § 16, § 20, §
26 and to annul the cited words in § 29 of Act no. 3/2002 Coll.
In  the  situation where the Constitutional Court  annuls  §  6
para.  2  of  the act as unconstitutional, the cited provisions
can be interpreted and applied in a constitutionally consistent
manner,  so  that  annulling  them  is  not  necessary.   These
provisions  regulate the content requirements of an application
for  recording (§ 16), the register of religious legal entities
(§  20,  §  29), cancellation of a record of a religious  legal
entity  and  its  termination (§ 26), and in the Constitutional
Court's opinion they can be interpreted, with the annulment  of
§  6  para. 2 and § 28 para. 5 of Act no. 3/2002 Coll. so  that
they  do  not  condition the legal coming  into  existence  and
termination of religious legal entities on a constitutive legal
act  by  a state body, but so that the recording is only  of  a
declarative  nature  and  performs the specified  functions  of
providing  information  and  protecting  the  rights  of  third
parties.
  11. For all the cited reasons the Constitutional Court states
that  § 6 para. 2 and § 28 para. 5 of Act no. 3/2002 Coll.  are
inconsistent  with Art. 16 para. 2 and para. 4 of  the  Charter
and, for that reason, annuls them. The petition to annul §  16,
§  20,  §  26 and to annul the cited words in § 29 of  Act  no.
3/2002 Coll. is denied.

VII.
Authorization to exercise special rights:

The text of the contested provisions:

§ 11:
Application for assignment of authorization to exercise special
rights
   (1)  An  application  for  assignment  of  authorization  to
exercise special rights may be submitted by a registered church
or  religious society, which a) has been registered under  this
Act  for  at least 10 years without interruption as of the  day
the application is submitted b) published annual reports on its
activities for the calendar year every year for 10 years before
submitting   the   application,  c)  is  duly  fulfilling   its
obligations toward the state and third parties,
   (2)  An  application  for  assignment  of  authorization  to
exercise  special rights is filed by a body of  the  registered
church or religious society.
   (3)  An  application  for  assignment  of  authorization  to
exercise special rights may be filed either for the exercise of
all  special rights under § 7 para. 1 or only for the  exercise
of special rights under § 7 para. 1 let. a) to e).
   (4)  An  application  for  assignment  of  authorization  to
exercise  special rights under § 7 para. 1 let. a) to  e)  must
contain a) original signatures of as many of the Czech Republic
or  foreigners  with permanent residence in the Czech  Republic
who are of age and claim membership of this church or religious
society, as amount to 0.1 percent of the residents of the Czech
Republic  according to the last census, giving their individual
data  according to this Act and giving identical text  on  each
signature  page,  which gives the full name of  the  church  or
religious  society which is collecting signatures for  purposes
of  its  registration, and from which it is  evident  that  the
signature  page is signed only by a person claiming  membership
of  this church or religious society, b) a declaration that its
previous  activities as a legal entity under this Act  are  not
inconsistent with the conditions provided by this Act and  that
they  meet  the conditions in paragraph1 let. c), c)  texts  of
annual reports under paragraph 1 let. b) and closing accounting
statements for the period of 10 years preceding the  filing  of
the application.
   (5)  An  application  for  assignment  of  authorization  to
exercise  special  rights under § 7 para. 1  must  contain  the
requirements  under paragraph 4 and also a document  confirming
that  the  clergy's duty of confidentiality in connection  with
the  secrecy  of  the  confessional or in connection  with  the
exercise  of  a  right  analogous  to  confession  has  been  a
traditional  component  of  the  teaching  of  the  church   or
religious society for at least 50 years.

§ 21:
Cancellation of authorization to exercise special rights
    (1)   The   Ministry  shall  open  proceedings  to   cancel
authorization  to exercise special rights a)  if  a  registered
church  or  religious society in a serious manner or repeatedly
violates its obligations toward the state or third parties,  b)
if a registered church or religious society does not publish an
annual report under § 7 para. 3 every year, or c) on the  basis
of  a  request  from  a  state administration  body  under  its
jurisdiction  given  by  a  special  legal  regulation,   which
documents the serious or repeated violation of obligations  for
the  functioning of the registered church or religious  society
under  a special legal regulation or agreement with that  state
administration body.
   (2)  The  Ministry  shall  stop proceedings  to  cancel  the
authorization to exercise special rights of a registered church
or  religious society under paragraph 1 if the grounds for  the
proceedings  ceases  to exist or if the  registered  church  or
religious   society  documents  in  writing  that,  through   a
procedure  proposed by it, the grounds for opening  proceedings
will be removed in agreement with persons who were affected  by
the   conduct  which  led  to  opening  proceedings  to  cancel
authorization to exercise special rights.
   (3)  The Ministry's decision to cancel the authorization  to
exercise  special  rights of a registered church  or  religious
society applies to all special rights under § 7 para. 1.
   (4)  The Ministry's decision to cancel the authorization  to
exercise  special  rights of a registered church  or  religious
society, which has gone into legal effect, shall be sent by the
Ministry for information to the Ministry of the Interior.

1.  The  Constitutional Court states that the  essence  of  the
contested  provisions  is the statutorily  provided  manner  of
assigning  and  canceling  the authorization  of  a  registered
church  or  religious society to exercise special  rights.  The
list of special rights is legally defined in § 7 para. 1 of Act
no.  3/2002 Coll., and it includes the right to teach  religion
in  state  schools,  to authorize persons to  perform  clerical
services  in  the armed forces and in facilities where  persons
are  being held, serving prison sentences, or serving sentences
of   protective  treatment  or  protective  upbringing,  to  be
financed under a special regulation, to perform rites in  which
religious  marriages  are  entered  into,  to  found  parochial
schools  and  to  preserve the duty of confidentiality  of  the
clergy  in connection with the secrecy of the confessional.  2.
The  Constitutional Court takes as its starting point the  fact
that   the  essence  of  religious  freedom  is  ensuring   the
opportunity of everyone to freely express his religion  without
state  interference.  At  the same time,  however,  the  state,
thoroughly separated from churches and religious societies, can
not  be  obligated  to  actively assist in  the  activities  of
individual churches and religious societies (similarly, see the
decision  of  10  April  1998, file  no.  II.  US  227/97,  the
Constitutional Court: Collection of Decisions, vol. 10, p.  447
et seq). If the legislature provides that the state will assist
the activities of religious entities, that is its own decision,
and  therefore  only the state is competent to  set  conditions
which  these  entities must fulfill in order to be entitled  to
the  state's cooperation. The constitutional maxim for  setting
these conditions is ruling out arbitrary discrimination. 3.  It
is evident from the nature of the special rights that these are
cases  where  the state permits entitled churches or  religious
societies  to  have "above standard" claims  for  a  particular
performance,  i.e.  that  these are  cases  of  an  active  and
positive  approach by the state. Such positive performance  is,
e.g.  access  to state financing, the right to teach  in  state
schools,  the  right  to found parochial schools,  and  so  on.
Therefore,  it  is  also  evident  that  the  state   is   also
fundamentally entitled to set conditions under which individual
entities   will   have   access  to   this   performance.   The
Constitutional Court's task is not to evaluate the  suitability
or   usefulness   of   these   conditions,   but   only   their
constitutionality.   In  this  case,  that   means   that   the
Constitutional Court had to consider only whether  any  of  the
statutorily   provided   conditions   exhibits   features    of
arbitrariness  and discrimination. 4. However, in  that  regard
the  Constitutional  Court  did  not  find  characteristics  of
unconstitutionality in the contested § 11 and § 21 of  Act  no.
3/2002 Coll. 5. However, the Constitutional Court believes that
§ 21 para. 1 let. b) of Act no. 3/2002 Coll. does exhibit clear
elements  of unconstitutionality. Its essence is the Ministry's
ability to cancel authorization to exercise special rights,  if
a  registered  church or religious society  does  not  annually
publish  an  annual report under § 7 para. 3 of Act no.  3/2002
Coll.  The Act provides this ability in a blanket manner,  that
is, the contested provision permits, e.g. removing the right of
a  church  or  religious  society to teach  religion  in  state
schools,  conclude  church marriages or preserve  the  clergy's
duty of confidentiality only on the grounds that the registered
church  or religious society does not publish an annual  report
every  year.  In  the  Constitutional  Court's  opinion,   this
framework   clearly   does  not  observe   the   principle   of
proportionality,  under  which  a  statutory  framework   would
consistently  preserve  a  balanced  relationship  between  the
violation  of  a  right on the part of a  church  or  religious
society, on the one hand, and the penalty imposed by the state,
on  the other hand. In this case, however, this proportionality
is  not  preserved,  because error  by  churches  or  religious
societies  in an area of an exclusively informative  obligation
is  followed by a penalty which, by its nature, falls into  the
area of religious activity. The Constitutional Court points out
that it already presented arguments based on similar principles
in  the  matter under file no. Pl. US 26/94 (the Constitutional
Court:  Collection of Decisions, vol. 4, p. 113  et  seq),  and
therefore, for the sake of brevity, it refers commensurately to
those arguments, despite the fact that that finding concerned a
case of a different special form of a private law corporation –
political   parties   and   movements.   6.   Therefore,    the
Constitutional Court annuls § 21 para. 1 let.  b)  of  Act  no.
3/2002  Coll.,  as unconstitutional, due to inconsistency  with
Art. 16 of the Charter.

VIII.
Income of churches and religious societies:

The text of the contested provisions:

§ 27 para. 4 and 5:
   (4) The income of a church or religious society consists of,
in  particular, a) contributions from natural persons and legal
entities,  b)  income  from  the  sale  and  rent  of  personal
property,  real estate and intangible property of churches  and
religious  societies,  c) interest on deposits,  d)  gifts  and
inheritance, e) collections and contributions from  a  part  of
revenues  under a special act, f) loans and credits, g)  income
from business or other income-producing activity, h) subsidies.
   (5)  The  subject  of  business  or  other  income-producing
activity  must  be  defined  in  the  founding  document  of  a
registered church or religious society. The business and  other
income-producing activity of a church or religious society  may
only be a supplemental income earning activity, and the profits
achieved  may be used only to meet the goals of the  activities
of the church or religious society.
   The  content  of the contested provision is a  list  of  the
incomes  of  churches  and religious societies  (para.  4)  and
definition of the subject of business activity of a  church  or
religious society and the manner of using the profits  achieved
(para. 5).

1. The Constitutional Court states, first of all, that even the
petitioners  themselves did not in any way explain  where  they
see  the  unconstitutionality of a list of incomes of  churches
and religious societies in § 27 para. 4 of Act no. 3/2002 Coll.
Because this list is given in a demonstrative, not enumerative,
manner  (cf.  the  words "in particular"),  the  Constitutional
Court states that this definition fundamentally corresponds  to
the  private  law  essence of churches and religious  societies
and,  although  it  can be considered redundant  to  a  certain
extent,   one   can   not  find  in  that  fact   features   of
unconstitutionality (superfluum non nocet).
   2. Therefore, the Constitutional Court itself also found  no
reason to believe that the cited provision is unconstitutional,
and denied the petition to annul it, as being groundless.
   3.  Concerning the petition to annul § 27 para. 5 of Act no.
3/2002  Coll., the Constitutional Court states that  the  first
sentence of this provision, under which the subject of business
activity  and other income-producing activity of  a  church  or
religious  society  must be defined in its  founding  document,
gives no reason for presumptions of its unconstitutionality. In
its essence, this is only an information obligation of a church
or  religious society, which is legitimized by the interests of
other  parties  to  private  law  relationships,  and  can  not
therefore be interpreted as an impermissible limitation on  the
autonomy of churches and religious societies. In any case, even
the   petitioners  themselves  do  not  make  any  such  claim.
Therefore,  this part of the petition is also denied  as  being
groundless.
  4. Under the second sentence of the cited provision, business
and  other  income-producing activity of a church or  religious
society can be only supplemental income-producing activity, and
the profits achieved may be used "only to meet the goals of the
activities of the church or religious society." Concerning this
the  Constitutional  Court states that  churches  or  religious
societies  are  –  as  a special form of the  exercise  of  the
freedom  of  association – private law corporations  which  can
basically do everything that is not expressly forbidden by  law
(Art.  2  para.  3  of  the Charter, Art.  2  para.  4  of  the
Constitution).  In  accordance with Art.  16  para.  4  of  the
Charter,  the exercise of these rights can be limited  only  in
cases  which  are  necessary and are defined  by  the  Charter.
However,  in  this  case  the act provides  that  a  church  or
religious  society may use the profits achieved  from  business
and  other  income-producing activity only to meet  its  goals.
However, Act no. 3/2002 Coll. defines these goals, in § 3  let.
a), under which the purpose of a church or religious society is
"professing  a  certain religious faith,  whether  publicly  or
privately, and in particular the related association, religious
services, teaching and clerical services." Thus, it is apparent
that  the  contested provision makes it impossible for churches
or  religious societies to use the profits achieved in a manner
other   than  as  legally  defined.  This  provision  is   also
inconsistent with Art. 11 para. 1 of the Charter.
   5.  However,  in  the Constitutional Court's  opinion,  this
limitation  clearly does not correspond with  the  purpose  and
mission   of  churches  and  religious  societies.  As   stated
elsewhere in this finding, the task of these entities can  not,
under any circumstances, be reduced to the mere profession of a
particular  religious  faith – as the  contested  provision  de
facto  says  – but their role in society is considerably  wider
and also consists of radiating religious values externally, not
only  through  religious activities but also, e.g.  charitable,
humanitarian  and  general educational  activities.  Therefore,
limiting churches and religious societies to freely making  use
of their legally obtained income only in the area of professing
religious  faith is arbitrary interference on the part  of  the
state  in  the private law essence of these entities, and  this
interference is clearly not legitimized by any relevant  public
interest;  similar  arguments,  although  in  relation  to  the
conduct  of  business by political parties and not churches  or
religious  societies, was used by the Constitutional  Court  in
the  matter under file no. Pl. US 26/94 (finding of 18  October
1995,  Collection of Decisions of the Constitutional  Court  of
the  CR, vol.4 p. 129 et seq). Therefore inconsistency of  this
provision  arises  with Art. 4 para. 4 of  the  Charter,  under
which,  when  applying provisions on the limits of  fundamental
rights  and  freedoms,  their substance  and  purpose  must  be
preserved,  and such limitations may not be used  for  purposes
other than those for which they were provided. 6. Therefore the
Constitutional Court annuls the second part of the sentence  of
§  27  para. 5 of Act no. 3/2002 Coll. due to its inconsistency
with  Art. 4 para. 4 of the Charter in connection with Art.  16
para. 2 a Art. 11 para. 1 of the Charter, as unconstitutional.

Notice:  Decisions  of  the Constitutional  Court  can  not  be
appealed.

Brno, 27 November 2002


Dissenting Opinion
of  judges  JUDr.  P. H. and JUDr. J. M. to  the  reasoning  of
Constitutional  Court finding file no.  Pl.  US  6/02,  on  the
constitutionality  of  Act  no. 3/2002  Coll.,  on  Freedom  of
Religion and the Status of Churches and Religious Societies and
Amending Certain Acts

We  can  not  accept  generally those parts  of  the  finding's
reasoning  which  apply  to provisions  which  the  petitioners
sought  to  have  annulled, although the  Constitutional  Court
denied  that part of the petition. It stated that they are  not
inconsistent with the constitutional order. In several cases of
this  kind  the reasoning of the finding presents arguments  of
such  kind and composition that as a whole it does sufficiently
express  the  fact  that  the  judges  agreed  that  the  cited
provisions  are consistent with the constitutional order,  but,
on the contrary, casts doubt on their verdict and makes it less
convincing.
   This general comment must be applied first of all to the key
provision  of § 6 para. 1 of Act no. 3/2002 Coll. (the  "Act"),
under  which  a  church or religious society "becomes  a  legal
entity   upon  registration  under  this  Act."  The  finding's
reasoning  claims  that  this  provision  creates  a  "somewhat
unclear  legal  situation," which does not fully correspond  to
the  requirements of the European Court for Human Rights for  a
statute's understandability and foreseeability. In this regard,
the  finding's reasoning also concludes that § 6 para. 1 of the
Act  "at  first glance" aspires to "the registration  of  these
legal entities having constitutive effects, i.e. it evokes  the
impression  that  a domestic administrative act  leads  to  the
legal  creation  of churches or religious societies,  that  is,
their  general legal capacity." That, of course,  according  to
the  finding's reasoning, would clearly not correspond with the
nature  of a number of churches and religious societies,  whose
legal  existence often arises not from state law but from canon
law  (or  international law) and the state power therefore  can
not  have  ambitions  to regulate these institutions  by  law."
Despite this strong criticism, the text of § 6 para. 1  of  the
act  the  reasoning,  basically without substantive  arguments,
reaches  the conclusion that the petition to annul  it  is  not
justified,  because  its shortcomings  can  be  overcome  in  a
"constitutionally  consistent manner."  Thus,  the  reasoning's
arguments are unbalanced, unconvincing, but also imprecise.
  To the claim in the reasoning that the text of § 6 para. 1 of
the  Act creates an unclear legal situation, we object that the
rule in it is quite clear: a church (religious society) becomes
a   "legal  entity"  by  registration,  so  that  without   the
registration it is not a legal entity. § 28 para. 1 adds, in  a
transitional  provision, that "churches or religious  societies
which performed their activities as registered by law as of the
day  this  act goes into effect are considered to be registered
under this Act." Thus, we consider the criticism concerning  an
unclear legal situation to be unjustified.
    The   finding's  reasoning  also  criticizes  the  possible
aspiration  of  §  6  para.  1  aimed  at  giving  the  act  of
registration constitutive effects, whereas with a  "number"  of
churches  and religious societies their legal existence  arises
from other normative legal systems and the state power thus can
not   constitute   their  "general  legal   capacity."   As   a
representative  of  this  "number" of  churches  it  cites  the
Catholic Church (the Holy See).
   The  end  of  the 18th and the course of the 19th  centuries
brought  the  overcoming  of  legal particularism  in  European
history. The passage of new democratic constitutions was, among
other  things, tied to the constituting of a secular  state,  a
change  in the source of the legitimacy of power, and thus,  in
its consequences, also with the secularization of the state and
the separation of church and state.
   The  basic purpose of law in a democratic state governed  by
the  rule of law is to guarantee freedom and internal peace.  A
conceptual  prerequisite of the legal framework of  rights  and
obligations is their connection to legal entities. There are no
rights  without rights-holding subjects; authorizations without
subjects are contradictio in adiecto.
   The  cultural  development of Europe and  the  corresponding
development  of  democratic constitutional law  thought,  as  a
consequence of the secularization of the state, does  not  mean
abandoning  the  historic tradition  of  values,  and  in  that
framework  religious  values as well. However,  it  means  that
these  no longer institutionally exist alongside, or inside,  a
democratically  legitimized state power, but  inside  a  whole,
constitutionally defined and guaranteed system of values.  Only
from  this  viewpoint  would it be  possible  to  evaluate  the
constitutional  admissibility  of  defining  the  legal  person
status of churches and religious societies.
   The  state  power  may effective regulate  the  behavior  of
persons only by using one of the internationally legal grounds,
in  particular territorial or personal grounds (on the basis of
citizenship).  In contrast, it can not aspire to  regulate  the
behavior  of persons to which its jurisdiction does not  reach.
In  accordance  with this, Act no. 3/2002 Coll. regulates  only
the  behavior  of those (components of) churches and  religious
societies  which are subject to the jurisdiction of  the  Czech
Republic.  In that sense the act of registration is undoubtedly
constitutive,  as in grants them the status of a  legal  entity
within the reach of the jurisdiction of the Czech state.
   Of  course, the finding's reasoning insists that in the case
of  a  "number"  of  churches  their  legal  person  status  is
established  by church regulations or other legal systems,  and
the  Czech  state then can no longer create such  legal  person
status,  but  only respect it. The fundamental question  arises
which  norm of which legal system orders the Czech Republic  to
respect  the  legal  person status of  a  church  or  religious
society  which was constituted by another norm creator.  Church
regulations  can  not  be  such  a  system,  because  a  church
(religious  society) is not a source of sovereign  power  which
could  compete  with  the  power  of  a  state  which  exercise
"complete and exclusive" sovereignty in its own territory.  Nor
can  it  be the legal order of another state, because  that  is
prevented  by  the relationships of sovereign equality  between
states  and  the  principle  under  which,  in  the  event   of
jurisdictional conflict between several states, the will of the
state which can apply territorial grounds shall predominate  as
a  matter  of  principle. Therefore, the CR is not required  to
recognize  such status of a church subject to its  jurisdiction
as was granted to that church by the legal order of a different
state.  That  obligation could be created  for  it  only  by  a
contractual  agreement  with that  other  state.  Nor  does  an
obligation to recognize the pre-existing legal person status of
churches   (religious  societies)  arise   to   the   CR   from
international  law. It is not imposed on  it  by  any  norm  of
general  international law (on the contrary,  the  practice  of
states eloquently testifies to the absence of such a norm), nor
by   any  international  agreements,  including  universal   or
European  covenants on human rights. Finally, an obligation  to
recognize the pre-existing status of a "legal entity" also does
not arise to bodies of public power either from the Charter  or
from the Constitution (Art. 16 para. 2 of the Charter regulates
the  circumstances of creation of institutions within churches,
and  thus in the adjudicated Act applies not to the institution
of  registering churches, but to the institution  of  recording
religious legal entities).
   Under  these circumstances, the Czech Republic,  in  setting
conditions  for  allocating the status of  a  legal  entity  to
churches  or  religious  societies,  has  at  its  disposal   a
considerable  degree  of  discretion.  The  principles   of   a
democratic state governed by the rule of law indicate  that  it
may  not arbitrarily prevent churches from entering the  public
life  of  the state and that it must guarantee to all  churches
equal conditions for acquiring the status of a legal entity. If
the  Chamber  of Deputies states that the reason for  requiring
registration  of  churches  is  "to  guarantee  a  minimum   of
protection to other parties in private law relationships," this
is  beyond  any  doubt  a  legitimate  aim  of  regulation.  An
application for registration is to contain conditions which are
provided by § 10 of the Act and which the Constitutional  Court
did   not   in   any   way  cast  doubt  upon   in   terms   of
constitutionality. The institution of registration of  churches
is  thus  a  constitutionally indisputable  expression  of  the
legislature's discretion.
   The finding's reasoning clearly begins with the premise that
the  concept  of registration as a constitutive  act  of  state
power  is  inapplicable to the Catholic Church in view  of  the
international legal subject status of the Holy See. From  that,
it then unjustifiably concludes that the "constitutive" concept
is inapplicable to all churches (religious societies). In fact,
the  Catholic  Church,  in relation to  other  churches,  is  a
complete exception, which, therefore, can not serve as a  model
for  general legal regulation. Therefore, Act no. 3/2002  Coll.
also  could  not rationally reject the constitutive effects  of
registration (i.e. the creation of a legal entity) only for the
reason  that  one  of the churches (the Catholic)  derives  its
status from the international legal subject status of the  Holy
See  and  accordingly from canon law. The Catholic religion  is
the  only one which simultaneously aspires to universality  and
functions  under  the head of the spiritual government  of  the
Holy See, unconnected with the secular government of any state.
Therefore, the question of international legal person status is
posed  exclusively  with  the  Holy  See  (L.  Le  Fur:  Nastin
mezinarodniho prava verejneho. Orbis, Praha, 1935, p. 150-151).
In contrast with the claim of the finding's reasoning, in fact,
no  "number"  of  other churches exists whose position  in  the
question  of legal person status would be comparable  with  the
Holy See.
   The  Holy  See has a status comparable to that of  a  state,
although it is not a state. The CR recognizes its legal  person
status  under  international  law,  although  it  has  not  yet
concluded  with it the international agreement which  is  being
prepared   (not  an  "inter-state"  agreement,  as  the   Czech
Conference  of  Bishops  erroneously  claims  in  its  position
statement).  The  CR  recognized  the  Holy  See  through   the
existence  of diplomatic relations (between Czechoslovakia  and
the  Holy  See)  until 1950, their renewal in April  1990,  and
their  continuation until the present. In  the  absence  of  an
international  agreement between the CR and the Holy  See,  one
can  not  rule  out the existence of bilateral customary  norms
which arose hitherto in their mutual practice (the violation of
this  practice  in  totalitarian  Czechoslovakia  need  not  be
considered  an  obstacle which would make the settling  of  any
customary  rules impossible). If such customary rules  existed,
the  CR would have to respect obligations arising from them  as
an  international  obligation  (see  Art.  1  para.  2  of  the
Constitution).  Of  course, seeking such  possible  rules  goes
beyond the framework of the finding and its reasoning.
   The  international legal personhood of the  Holy  See  is  a
substantial  distinguishing  element  of  the  Catholic  Church
compared  to  other churches. Therefore, the  question  arises,
whether and to what extend the general rules in Act no.  3/2002
Coll. should be applied to the Catholic Church. Differences  in
religions are not grounds for different treatment in  terms  of
fundamental  rights  and  freedoms  (Art.  3  para.  1  of  the
Charter).  However,  equality  is  not  an  absolute  category.
Different  treatment is admissible, if it is based on objective
and reasonable grounds. The fact that the Holy See is a subject
of   international  law,  which  the  CR  has  recognized,   is
undoubtedly  an "objective" reason for different  treatment  of
the  Catholic  Church in various issues regulated  by  Act  no.
3/2002 Coll. This is also testified to by, e.g., § 106 para.  2
of  the  Constitution  of  the CSR  of  1920,  which  permitted
deviations  from  the  principle  of  equality  "if  they   are
permitted  by  international  law."  In  other  words,  if  the
Agreement between the CR and the Holy See on the Regulation  of
Their Relations is concluded, this international law instrument
can,  in  relation  to  the Catholic Church,  regulate  various
issues  regulated generally in Act no. 3/2002 Coll. in a manner
which  is different from the Act. With the application of  Art.
10  of  the Constitution as amended by constitutional  Act  no.
395/2001  Coll.,  a  special  contractual  legal  framework  is
applied, not the general statutory one (lex specialis).
    "Reasonableness,"  and  especially  "commensurateness"   of
deviations  from the principle of equality in relation  to  the
Catholic  Church  are  concepts  which  have  a  constitutional
dimension. Evaluating them is, among other things,  up  to  the
Parliament  of  the  CR,  which  gives  approves  international
agreements under Art. 49 of the Constitution, and, finally,  up
to  the  Constitutional Court, if it were to receive a petition
to evaluate the consistency of the Agreement between the CR and
the  Holy see with the constitutional order under Art. 87 para.
2 of the Constitution.
   Under  §  6  para.  2 of the Act on Churches  and  Religious
societies  (the "Act"), annulled by the Constitutional  Court's
finding,  churches and religious societies may, if  registered,
found  a  religious legal entity "for purposes of organization,
profession   and   propagation   of   religious   faith."   The
transitional  provision of § 28 para. 5  of  the  Act  provides
conditions under which a registered church, after the Act  goes
into  effect, is required to complete information  about  legal
entities founded by it and already recorded, in accordance with
the particulars required by Act no. 3/2002 Coll.
   The majority vote considers the ratio decidendi of annulling
these  provisions  to  be the right of churches  and  religious
societies   to  found  religious  orders  and  other  religious
institutions independently of state bodies (Art. 16 para. 2  of
the  Charter). These provisions, according to this vote, do not
distinguish  between  registration  and  recording   of   legal
entities,  and are therefore limiting to a church or  religious
society  in  the  aggregate:  "In  the  Constitutional  Court's
opinion, these provisions directly give rise to subjecting  the
legal  coming into existence of religious legal entities  to  a
state decision, i.e. de facto registration of them, even though
in  the Act it is formally described as recording." However, in
relation to the petition to annul § 16, § 20, § 26 and § 29  of
Act  no.  3/2002  Coll.,  the finding's reasoning  states  that
"recording is appropriate, in particular in terms of fulfilling
an  information  function and the function  of  protecting  the
rights of third parties," and that after the annulment of  §  6
para. 2 and § 28 para. 5 of the Act, § 16, § 20, § 26 and §  29
"do   not  condition  the  legal  coming  into  existence   and
termination of religious legal entities on a constitutive legal
act by a state body, but the recording is only of a declarative
nature  and  performs  the  specified  functions  of  providing
information and protecting the rights of third parties."
   In  relation  to  § 6 para. 2 of the Act the  majority  vote
ignores  the  most  significant grounds  for  annulment;  as  a
result,  the  majority  vote could thereby  establish  an  even
higher   degree  of  uncertainty  for  churches  or   religious
societies concerning legal entities founded by them.
   The  purpose  of  § 6 para. 2 of the Act is  to  define  the
purposes for which a church or religious society is authorized,
under  Act no. 3/2002 Coll., to found legal entities.  If  this
goal  is  limited to "organization, profession, and propagation
of  religious  faith" and does not contain  related  activities
that  are charitable, cultural, social care and so on,  such  a
definition must be considered inconsistent with Art. 16 para. 2
of the Charter. The interpretation of the purposes arising from
Art.  16  para.  2  of the Charter is given by  the  conceptual
connection  of  organization, profession,  and  propagation  of
religious faith with a cultural, charitable and social role, as
has developed in the European cultural tradition, and therefore
also  arises from a comparative legal viewpoint. Therefore,  we
do not consider the decisive reason of this opinion in relation
to  k  §  6  para.  2  of  Act  no.  3/2002  Coll.  to  be  the
inadmissibility  of  what  the  majority  vote  claims  to   be
"subjecting the legal coming into existence of religious  legal
entities  to a state decision," but the limitation of  purposes
for founding religious legal entities.
  The majority vote establishes legal uncertainty insofar as by
deleting  §  6 para. 2 of the Act without requiring  it  to  be
replaced by a new wording which would define goals in a  manner
consistent  with  Article  16  para.  2  of  the  Charter,  the
definition of purposes, the consequence is lack of interpretive
clarity in defining the activities of a religious legal  entity
under  §  16  para. 2 let. b) of the Act, with the  risk  of  a
restrictive interpretation, and thus also the risk of a penalty
under § 16 para. 5 of the Act .
    Analogous  arguments  also  apply  to  the  evaluation   of
constitutionality of § 28 para. 5 of the Act. If  the  majority
vote  justifies its annulment by the impermissibility of  state
interference  in  the authorization of churches  and  religious
societies  to found religious legal entities, a consequence  of
this  legal  opinion would be, in our opinion, legal inequality
with  regard  to the requirements of recording religious  legal
entities  established after the Act goes into effect and  those
which  were  established previously. Without anything  further,
one  can  not  see in the legislative requirement for  creating
uniform  records  any  grounds for  inconsistency  between  the
statutory  provision  at  hand and  the  constitutional  order.
However, the disproportionately short deadline for meeting  the
requirements contained in that provision, can be seen  as  such
grounds,  particularly with churches with  a  large  number  of
religious  legal entities, as can the penalty, disproportionate
to  the gravity of possible unlawful conduct, consisting of not
submitting  all  the  particulars  required  for  recording  of
religious  legal entities. In our opinion, only  the  potential
degree  of  this disproportion in the deadline and penalty  are
grounds for inconsistency of § 28 para. 5 of the Act with  Art.
16 para. 2 of the Charter.
   As  the  Constitutional Court expressed  a  different  ratio
decidendi in this matter, the authors of this separate vote are
making  use  of  this dissenting opinion only to the  finding's
reasoning,  as they share the opinion of the majority  vote  in
the matter itself.

Brno, 29 November 2002
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