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On the time limit for religious communities to apply for recognition by the state

Case no 15/2019

 

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 6 OF THE REPUBLIC OF LITHUANIA’S LAW ON RELIGIOUS COMMUNITIES AND ASSOCIATIONS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

7 September 2021, no KT140-N11/2021

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Danutė Jočienė, Giedrė Lastauskienė, Vytautas Mizaras, Algis Norkūnas, Daiva Petrylaitė

The court reporter – Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s hearing on 1 September 2021, under written procedure considered the constitutional justice case (no 15/2019) following the petition (no 1B-22/2019) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the provision “The State shall recognise […] other churches and religious organisations, provided that they have support in society” of paragraph 1 of Article 43 of the Constitution of the Republic of Lithuania is violated by paragraph 2 of Article 6 of the Republic of Lithuania’s Law on Religious Communities and Associations, insofar as this paragraph stipulates that religious associations may request state recognition following a period of not less than 25 years from the date of their initial registration in Lithuania.

The Constitutional Court

has established:

I

The arguments of the petitioner

1. The petition of the group of members of the Seimas, the petitioner, is based on the following arguments.

1.1. In the opinion of the petitioner, under the Constitution, inter alia, paragraph 1 of Article 43 and point 2 of Article 67 thereof, the legislature has the right to recognise a non-traditional religious organisation, as well as to revoke the state recognition granted to it; however, it has no discretion to lay down the conditions for granting such a special status, since they are established in the Constitution. The provision “The state recognises [...] other churches and religious organisations provided that they have support in society, and their teaching and practices are not in conflict with the law and public morals” of paragraph 1 of Article 43 of the Constitution means that the Seimas has the powers to recognise churches and other religious organisations, but only those that fulfil the two said conditions consolidated in the Constitution: they have support in society and their teaching and practices are not in conflict with the law and public morals. According to the petitioner, the legislature has the right to establish only the fact whether a certain religious organisation seeking state recognition meets the said conditions.

On the basis of, inter alia, the official constitutional doctrine formulated, among others, in the Constitutional Court’s decision of 6 December 2007, the petitioner notes that, if the said conditions are not satisfied, state recognition may not be granted to a relevant church or religious organisation.

1.2. The petitioner specifies that the said conditions, which are established in the Constitution, may be specified in detail and interpreted only under the official constitutional doctrine, therefore, the legislature does not have the right to establish, by means of a law, such a legal regulation of recognition of religious associations, whereby the concept of the provisions of the Constitution and other legal arguments formulated in the official constitutional doctrine would be disregarded.

According to the petitioner, in the above-mentioned decision of the Constitutional Court of 6 December 2007, the condition “have support in society” is related to more than several decades of activity, to more than one or several generations of people, i.e. the Constitutional Court, according to the petitioner, counts the time in hundreds rather than dozens of years. Therefore, in the opinion of the petitioner, paragraph 2 of Article 6 of the Law on Religious Communities and Associations (hereinafter referred to as the Law), insofar as this paragraph stipulates that religious associations may apply for state recognition following a period of not less than 25 years from the date of their initial registration in Lithuania is in conflict with paragraph 1 of Article 43 of the Constitution, the condition “have support in society” whereof means “lasting support that is not limited to several decades of activity or to one or several generations of people”.

II

The arguments of the representative of the party concerned

2. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from Tomas Vytautas Raskevičius, the Chair of the Seimas Committee on Human Rights, acting as the representative of the Seimas, the party concerned, in which it is maintained that the impugned legal regulation is not in conflict with the provision “The State shall recognise […] other churches and religious organisations, provided that they have support in society” of paragraph 1 of Article 43 of the Constitution.

2.1. The position of the representative of the Seimas, the party concerned, is based on the following arguments.

2.1.1. According to the representative of the party concerned, both the impugned paragraph 2 of Article 6 of the Law and paragraphs 3 and 4 of Article 6 thereof establish only the procedure (procedures) for the recognition of religious associations, however, they do not lay down the conditions for such a recognition. The conditions to be met by other (non-traditional) religious association seeking state recognition are laid down in paragraph 1 of Article 6 of the Law and they meet the conditions established in paragraph 1 of Article 43 of the Constitution and the Constitutional Court’s decision of 6 December 2007.

2.1.2. In the opinion of the representative of the party concerned, a time period of not less than 25 years from the date of the initial registration of a religious association in Lithuania necessary in order to submit an application for state recognition, which is prescribed in paragraph 2 of Article 6 of the Law, may not be assessed as being in conflict with the conditions for granting state recognition to other (non-traditional) religious associations, as established in paragraph 1 of Article 43 of the Constitution, since upon the expiry of the said time period, the religious association is not in itself regarded as having support in society. According to him, when establishing the above-mentioned time period in paragraph 2 of Article 6 of the Law, the legislature had an objective to lay down the minimum period of time in which a religious association acquires the right to apply for the state recognition, but not an absolute condition for granting state recognition to a religious association. The representative of the party concerned notes that upon application by a religious community for state recognition within the time limits laid down by the Law, it must be assessed whether the religious community has the support of society (support in society) and whether its teaching and practices are not in conflict with the law and public morals. In his opinion, in accordance with paragraph 3 of Article 6 of the Law, having received a conclusion from the Ministry of Justice, the Seimas has the discretion (but not a duty) to state that the religious association has the support of society (support in society) and whether its teaching and practices are not in conflict with the law and public morals. Therefore, there is no legal basis to assess the provision of paragraph 2 of Article 6 of the Law as anti-constitutional.

2.1.3. The representative of the party concerned also holds that the support of a religious association in society can neither be created nor abolished by an administrative act of a public entity; therefore; it is not objectively justified to evaluate the support of the religious association in public solely on the basis of the date of its initial registration in Lithuania.

2.1.4. Referring to the judgment of the European Court of Human Rights (hereinafter referred to as the ECtHR) of 8 June 2021 in the case of the Ancient Baltic religious association “Romuva” v. Lithuania (no 48329/19), in which the ECtHR ruled on the refusal to grant to this religious association the status of a state-recognised religious association, the representative of the party concerned notes that the ECtHR criticised the fact that the Law does not establish the basis on which the Seimas may refuse to grant the status of a religious community recognised by the State to a religious community, for which the Ministry of Justice has given a favourable opinion. In addition, in the said judgement of the ECtHR, according to the representative of the party concerned, it was also noted that decisions on whether to grant state recognition to religious associations are assigned to take by the Seimas, which is a political body, and the political nature of parliamentary proceedings entails the risk that the decisions taken with regard to the religious organisation may be related to political events and/or situations.

2.2. In the course of preparing the case for the hearing of the Constitutional Court, written explanations were received from Gediminas Vasiliauskas, the then member of the Seimas, the former representative of the Seimas, the party concerned, in which it is stated that the impugned paragraph 2 of Article 6 of the Law, to the extent specified by the petitioner, is not in conflict with the Constitution.

III

The material received in the case

3. In the course of the preparation of the case for the hearing of the Constitutional Court, written opinions were received from Žydrūnas Plytnikas, the then Vice-Minister of Justice of the Republic of Lithuania, and Dr. Eglė Aleknaitė, a member of the board of Lithuanian Society of the Study of Religions.

3.1. In the opinion of Žydrūnas Plytnikas, the impugned legal regulation is not in conflict with the Constitution.

3.1.1. In its decision of 6 December 2007, the Constitutional Court specified two aspects of support of religious associations in society – the number of members of the religious association and the time of existence in Lithuania. In the opinion of Žydrūnas Plytnikas, inter alia, the requirement consolidated in Article 6 of the Law regarding the number of years of existence of a religious association in Lithuania (since its initial registration in Lithuania) corresponds to the aspect of the time of existence in Lithuania as stated in the official constitutional doctrine, and the provision of the same article of the Law that recognition of the state is granted not to religious communities but to religious associations (i.e. associations of at least several religious communities, thus theoretically presuming a larger number of the members than the members of one religious community) is linked to the number of members of the church or other religious organisation indicated in the official constitutional doctrine.

3.1.2. The mere fact of a longer or shorter period of activity in Lithuania does not provide an opportunity to assess the possessed support of a religious association in society. In this context, Žydrūnas Plytnikas draws attention to the fact that the activities of part of the religious communities registered in the Republic of Lithuania between 1918 and 1940 ceased or was discontinued during the period of the Soviet occupation, thus, some of them have not functioned for quite a long time; after the restoration of their activities, the support in society was largely re-created; in addition, the dynamics of growth, the number of members and the level of institutionalisation vary widely among religious communities.

The fact that Article 6 of the Law establishes a certain number of years after the initial registration of religious associations in Lithuania means that, after this period, they acquire only the right to apply to the Seimas for state recognition; this time period is not equated, in a law, to the support of society or to the constitutional concept of support in society. Therefore, there is no reason why the legislature could not set a certain time period upon the expiry of which the religious association would acquire the right to apply for state recognition, since, as mentioned above, the fact that a religious association may apply for state recognition does not in itself mean that it will meet the criteria laid down by the Constitution and by law for being granted state recognition.

3.1.3. Žydrūnas Plytnikas also submitted the data about the religious associations, which have (had) applied to the Seimas for being granted state recognition, for example: the Seventh-day Adventist Church (whose activities, as stated in the written opinion, started in 1921 and its initial registration took place in 1927), applied for state recognition in 2003 and it was granted state recognition in 2008; the New Apostolic Church of Lithuania (the initial registration took place in the second half of the 19th century) applied for state recognition in 2000 and it was granted state recognition in 2017; the Ancient Baltic religious association “Romuva” (the initial registration took place in 1992) applied for state recognition in 2017 and it was refused to grant state recognition to it in 2019; the Lithuanian Joint Methodist Church (initial registration took place in 1901) applied for state recognition in 2001 (the written opinion does not provide data on granting the state recognition for this church).

3.2. In the opinion of Eglė Aleknaitė, the impugned legal regulation, which is consolidated in paragraph 2 of Article 6 of the Law, is not in conflict with the Constitution.

3.2.1. The period since the beginning of the activities of a religious community or specifically since the initial registration of a religious community in Lithuania is not the only and most important criterion for assessing the religious community’s support in society. This concept of support in society should be related, inter alia, to the number of members of such an association and the duration of its activities, as mentioned in the Constitutional Court’s decision of 6 December 2007, and the requirement established in the official constitutional doctrine that support in society “should be strong and long-termed; therefore, it may not be limited to a small group of people or a small part of society, or to several decades of activities, or to one or a few generations” is, according to Eglė Aleknaitė, related to the provision of paragraph 1 of Article 6 of the Law that other (non-traditional) religious associations may be granted state recognition as being a part of Lithuania’s historical, spiritual and social heritage.

3.2.2. Two important aspects of the time period laid down in the impugned paragraph 2 of Article 6 of the Law at issue should be distinguished: event from which the beginning of this time period is calculated and the duration of that time period:

the event specified in the Law from which the time period of not less than 25 years is calculated, upon the expiry of which these associations acquire the right to apply for state recognition, is the initial registration of a religious association; under paragraph 4 of Article 6 of the Law, “the initial registration shall be considered valid provided that the religious association has lawfully functioned (was registered) in Lithuania after 16 February 1918”;

having established, by means of the Law adopted in 1995, the time period of not less than 25 years from the date of the initial registration of a religious association in Lithuania, upon the expiry of which these associations acquire the right to apply for state recognition, In the year of the adoption of the law, the applying association had to have been registered no later than in 1970, which was rather difficult due to the constraints (inter alia, the difficulties of their registration) imposed on the activities of religious organisations; the requirement laid down in the Law that a time period of at least 25 years should have passed since the initial registration of a religious association in Lithuania may be easier to comply with at this time, since the initial registration of a religious association may have taken place in Lithuania that had already restored its independence; therefore, when establishing a specific period from the date of the initial registration of a religious association in Lithuania, which gives it the right to apply for state recognition, it is necessary to take into account the extent to which such registration was possible at all during that period.

Therefore, according to Eglė Aleknaitė, at present, such a period may not be longer than 25 years. In addition, if a religious community fulfils the minimum criteria for registration, a much shorter period would be sufficient to confirm its stability, e.g. 10 years. If it were decided to extend this period, for example, to 75 years, it would be difficult to meet this requirement due to the above-mentioned historical circumstances. On the other hand, the establishment of the beginning of the activity of a religious association not related to the registration would be a much more complex process, thus, it would hardly be possible to establish a different event of the development of a religious association than the current period of at least 25 years from its initial registration in Lithuania, as laid down in the Law, which would be easily identifiable and suitable for all religious associations.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

4. In the constitutional justice case at issue, the group of members of the Seimas, the petitioner, requests to investigate the compliance of paragraph 2 of Article 6 of the Law, insofar as this paragraph stipulates that religious associations may request state recognition following a period of not less than 25 years from the date of their initial registration in Lithuania, with the Constitution.

5. On 4 October 1995, the Seimas adopted the Law on the Religious Communities and Associations, which came into force on 2 November 1995.

This Law establish the legal relations of religious communities and associations and with the State of Lithuania; it implements the human right of freedom of religion consolidated by the Constitution, other laws and international documents and agreements (Article 1).

5.1. In the context of the constitutional justice case at issue, it should be mentioned that paragraph 7 of Article 2 “Right of freedom of religion” of the Law prescribes that the believers have the right to freely join religious communities and associations, as well as to establish religious organisations.

It should also be noted that Article 4 “Religious Communities, Associations, and Centres” of the Law consolidates, inter alia, the notions of religious communities and associations, which are relevant to this constitutional justice case:

a religious community shall be a group of individuals seeking to implement the objectives of the same religion. It may be a local subdivision of a respective religious association (paragraph 1);

religious associations shall be unions of churches and equivalent religious organisations, namely, communities, seeking to implement the objectives of the same religion; an association shall be comprised of at least two religious communities under common leadership (paragraph 2).

Thus, under the legal regulation established in paragraphs 1 and 2 of Article 4 of the Law, the religious association must be comprised of at least two religious communities under common leadership, i.e. the religious association is a more complex body than a religious community in terms of the number of religious organisations that unite it.

5.2. It should also be noted from the aspect relevant to this constitutional justice case that Article 5 of the Law specifies traditional religious communities and associations of Lithuania, and, under Article 6 thereof, other (non-traditional) religious associations may be granted state recognition. Therefore, as can be seen from the legal regulation consolidated in Articles 5 and 6 of the Law, the threefold status of the churches and religious organisations are distinguished in Lithuania: traditional religious communities and associations, other (non-traditional) religious associations recognised by the state, and other religious communities and associations, i.e. such religious communities and associations that are not traditional and do not have the status of a state-recognised religious association.

6. Article 6 “Recognition of Other Religious Associations” of the Law, whose paragraph 2 is, to the specified extent, impugned by the petitioner, establishes the following:

Other (non-traditional) religious associations may be granted state recognition as being a part of Lithuania’s historical, spiritual, and social heritage if they are backed by society and their teaching and practices thereof are not contrary to laws and public morals. State recognition shall denote the State’s backing of the spiritual, cultural and social heritage of religious associations.

State recognition shall be granted by the Seimas of the Republic of Lithuania. Religious associations may request state recognition after the lapse of at least 25 years from the date of their initial registration in Lithuania. If the request is denied, it may be resubmitted after the lapse of 10 years from the day the request was denied.

The issue of recognition shall be dealt with by the Seimas upon receiving a conclusion from the Ministry of Justice.

The initial registration specified in paragraph 2 of this Article shall be considered valid provided that the religious association has lawfully functioned (was registered) in Lithuania after 16 February 1918.”

Thus, the legal regulation laid down in Article 6 of the Law consolidates the possibility for other (non-traditional) religious associations to apply for state recognition, as well as lays down the procedure and conditions for granting such a recognition. Based on the systematic interpretation of the provisions of Article 6 of the Law in conjunction with the provisions of paragraphs 1 and 2 of Article 4 thereof, it should be noted that the right to apply for state recognition is limited to religious associations, which are more complex than religious communities in terms of the number of religious organisations that unite them.

6.1. It should be noted from the aspect relevant to this constitutional justice case that, under paragraph 1 of Article 6 of the Law, state recognition may be granted to other (non-traditional) religious associations only in if they meet two conditions, which are expressis verbis established in this paragraph: (1) they are backed by society; (2) instruction and practices thereof are not contrary to laws and public morals. It should also be noted that, under paragraph 1 of Article 6 of the Law, state recognition means that the state supports the spiritual, cultural and social heritage of religious associations.

6.2. It should be noted that the impugned paragraph 2 of Article 6 of the Law consolidates a time period upon the expiry of which the said association acquires the right to apply for state recognition: in order for a religious association to acquire such a right, at least 25 years after its initial registration in Lithuania must have passed, which is, in accordance with paragraph 4 of Article 6 of the Law, considered as having occurred if the religious association had lawfully functioned (had been registered) in Lithuania after 16 February 1918.

It should be noted that, under the legal regulation laid down in paragraph 2 of Article 2 of the Law, as interpreted from the aspect impugned by the petitioner, in conjunction with paragraph 1 of this article, the said time period of not less than 25 years from the date of the initial registration of a religious association in Lithuania, upon the expiry of which the said association acquires the right to apply for state recognition, does not guarantee that, upon the expiry of the said time period, the other (non-traditional) religious association will be recognised by the state; in order to be granted state recognition, a religious association must meet the conditions laid down in paragraph 1 of Article 6 of the Law – it must have support in society and its teaching and practices must not be in conflict with the law and public morals.

6.3. In the context of this constitutional justice case, it should also be noted that, under paragraph 2 of Article 6 of the Law, the Seimas has discretion to decide on granting state recognition to the applying other (non-traditional) religious association after it has assessed whether this religious association meets the conditions laid down in paragraph 1 of Article 6 of the Law. In addition, under the legal regulation established in paragraph 3 of Article 6 of the Law, only upon receiving a conclusion from the Ministry of Justice, the Seimas, in the exercise of its discretion, decides whether to grant the status of a state-recognised religious association to the said religious association.

6.4. It should also be noted that the impugned paragraph 2 of Article 6 of the Law also consolidates the time period upon the expiry of which other (non-traditional) religious associations may reapply for state recognition in cases where the Seimas has refused to grant them the status of a religious association recognised by the state; in such a case, only following a period of 10 years from the day on which the request to grant state recognition was rejected, the said association may reapply for state recognition.

6.5. When interpreting the legal regulation consolidated in Article 6 of the Law, it should also be noted that neither the impugned paragraph 2 of Article 6 of the Law, nor other provisions of this article or Law prescribe as to when the Seimas, in the exercise of its discretion to decide on granting state recognition to a certain religious association, must take the respective decision to grant or refuse to grant the status of a state-recognised religious association to such an association.

7. In this constitutional justice case, the legal regulation, impugned to the extent specified by the petitioner and established in paragraph 2 of Article 6 of the Law, should be interpreted in the context of other provisions of the Law, which, inter alia, reveal the differences of the status of traditional religious communities and associations, other (non-traditional) religious associations recognised by the state, and other religious communities and associations (i.e. such religious communities and associations that are not traditional and do not have the status of a state-recognised religious association).

7.1. Mention should be made of the following provisions of the Law, which are linked to freedom to perform religious ceremonies and the right to provide religious instruction in educational establishments:

at the request of student believers and their parents, the practices of traditional and other state-recognised religious communities and associations, which are not contrary to the concept of secular school, may be performed in state educational and training establishments; participation therein shall be based on free choice (paragraph 4 of Article 8);

religious instruction of traditional and other state-recognised religious communities and associations may be provided in state educational establishments at the request of parents (guardians, custodians) (paragraph 2 of Article 9);

the State shall recognise religious instruction of traditional and other state-recognised religious communities and associations in denominational educational establishments (Sunday schools of such denominations or other instruction groups) upon registration of religious education programmes with the Ministry of Education and Science and submission thereto of documents attesting to teacher qualifications, as well as a request by the spiritual authorities of the respective religious community or association (paragraph 3 of Article 9).

7.1.1. Thus, under the legal regulation prescribed in paragraph 4 of Article 8 and paragraphs 2 and 3 of Article 9 of the Law, at the request of student believers and their parents, the practices of only traditional and other state-recognised religious communities and associations may be performed in state educational and training establishments; in addition, religious instruction only of the said religious communities and associations may be provided in state educational establishments and, in accordance with the procedure laid down in laws, in denominational educational establishments.

7.1.2. When interpreting the legal regulation impugned by the petitioner to the specified extent, which is consolidated in paragraph 2 of Article 6 of the Law, in conjunction with paragraph 4 of Article 8 and paragraphs 2 and 3 of Article 9 of the Law, it should be noted that the religious association, which applied for the status of a state-recognised religious association at least 25 years after its initial registration in Lithuania, and which was not granted such a status, contrary to another religious association, which is not traditional but which has been granted the status of a state-recognised religious association, does not have the right, in accordance with the procedure laid down in laws, to perform its religious ceremonies and to provide its religious instruction in state establishments of teaching and education, as well as does not have the right to provide religious instruction in denominational educational establishments.

8. In this constitutional justice case, the legal regulation, impugned to the extent specified by the petitioner and established in paragraph 2 of Article 6 of the Law, should be interpreted in the context of other provisions of the Law, which, inter alia, reveal the differences of the status (inter alia, certain rights and special guarantees for their activities granted to them) of traditional religious communities and associations, other (non-traditional) religious associations recognised by the state, and other religious communities and associations (such religious communities and associations that are not traditional and do not have the status of a state-recognised religious association).

8.1. Under point 2 of paragraph 2 of Article 3.24 (wording of 3 December 2015) of the Civil Code of the Republic of Lithuania, the formation of a marriage in accordance with the procedures established by the Church (confessions) shall entail the same legal consequences as those entailed by the formation of a marriage in the Register Office provided that the marriage has been formed according to the procedures established by the canons of a religious organisation registered in and recognised by the Republic of Lithuania;

8.2. Under paragraph 6 (wording of 23 December 2020) of Article 6 of the Republic of Lithuania’s Law on State Social Insurance Pensions, clergymen, nuns and monks of traditional and other religious communities and associations recognised by the State are covered on a compulsory basis by pension social insurance (if they do not have the obligatory pension social insurance record, do not receive the state social insurance pension and the amount of their insured income during a calendar year is below the amount of 12 minimum monthly salaries as approved by the Government, by covering the negative balance of social insurance contributions from the amount of 12 minimum monthly salaries as approved by the Government with state funds).

8.3. Under paragraph 8 of Article 5 of the Republic of Lithuania’s Law on the National Radio and Television of Lithuania (wording of 7 May 2020), the National Radio and Television provides time for Lithuania’s traditional and state-recognised religious communities to broadcast religious services in accordance with the conditions and procedure stipulated in bilateral agreements.

8.4. Under point 10 (wording of 10 December 2015) of paragraph 2 of Article 8 of the Republic of Lithuania’s Law on Land Tax, land tax is not levied on land owned by traditional and other state-recognised religious communities, associations, and centres.

8.5. Thus, summing up the legal regulation consolidated in point 2 of paragraph 2 of Article 3.24 (wording of 3 December 2015) of the Civil Code, paragraph 6 (wording of 23 December 2020) of Article 6 of the Law on State Social Insurance Pensions, paragraph 8 of Article 5 of the Law on the National Radio and Television of Lithuania (wording of 7 May 2020), and point 10 (wording of 10 December 2015) of paragraph 2 of Article 8 of the Law on Land Tax, it should be held that only traditional religious communities and associations and other state-recognised religious communities (among others, the clergymen, nuns, and monks thereof) are granted, inter alia, certain rights and special guarantees for their activities, which are not possessed by other (non-traditional) religious communities and associations, which are not recognised by the state, such as the right for clergymen, nuns and monks of state-recognised religious associations to be covered by pension social insurance with state funds (paragraph 6 (wording of 23 December 2020) of Article 6 of the Law on State Social Insurance Pensions) and the right to benefit from land tax relief (point 10 (wording of 10 December 2015) of paragraph 2 of Article 8 of the Law on Land Tax)).

8.6. In interpreting the legal regulation, impugned to the extent specified by the petitioner and established in paragraph 2 of Article 6 of the Law, in conjunction with the said provisions of point 2 of paragraph 2 of Article 3.24 (wording of 3 December 2015) of the Civil Code, paragraph 6 (wording of 23 December 2020) of Article 6 of Law on State Social Insurance, paragraph 8 of Article 5 of the Law on the Lithuanian National Radio and Television (wording of 7 May 2020), and point 10 (wording of 10 December 2015) of paragraph 2 of Article 8 of the Law on Land Tax, it should be held that only when the Seimas grants the status of a religious community recognised by the state to a religious community after it applies for such status at least 25 years after its initial registration in Lithuania, and where it fulfils the conditions laid down in paragraph 1 of Article 6 of the Law – it has support in society and its teaching and practices are not in conflict with the law and public morals, such a religious association recognised by the state (among others, clergymen, nuns and monks thereof) acquires the right to enjoy, inter alia, certain rights enshrined in the above-mentioned laws only for traditional and other (non-traditional) religious associations recognised by the state and special guarantees of activity which other religious communities and associations do not enjoy (i.e. those which are not traditional and do not have the status of a religious community recognised by the state).

II

International and EU legislation consolidating freedom of thought, conscience and religion and the jurisprudence of the European Court of Human Rights relevant to this constitutional justice case

9. In the context of the constitutional justice case at issue, it is relevant to reveal, inter alia, the principles of freedom of religion, which are consolidated in the legal acts of the Council of Europe and European Union, as well as the jurisprudence of the ECtHR, and which are related, among others, to the to the exercise of freedom of religion and the particularities of the legal status of churches and religious organisations.

10. Article 9 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter referred to as the Convention) establishes that everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his/her religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

11. Paragraph 1 of Article 10 of the Charter of Fundamental Rights of the European Union provides that everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

12. Under paragraph 1 of Article 17 of the Treaty on the Functioning of the European Union, “The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States”.

Therefore, under the said paragraph 1 of Article 17 of the Treaty on the Functioning of the European Union, the member states have discretion to establish the status of churches and religious associations or communities in national law.

13. In this constitutional justice case, mention should be made of the provisions of the relevant documents of the European Commission for Democracy through Law (Venice Commission), acting as an advisory body to the Council of Europe, related to the establishment of requirements for the acquisition of a particular status by religious organisations, including waiting time to acquire such status in the states.

13.1. On 11 June 2004, the Venice Commission adopted the Guidelines for Legislative Reviews of Laws Affecting Religion or Belief, prepared by the Panel of Experts on Religion and Belief of the Office of Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe.

From the aspect relevant to this constitutional justice case, it should be noted that, these guidelines, inter alia, specify that, when the state establishes certain legal regulation, provisions that grant excessive governmental discretion in giving approvals should not be allowed; official discretion in limiting religious freedom, whether as a result of vague provisions or otherwise, should be carefully limited (paragraph F(1)).

13.2. At its 99th plenary meeting on 13–14 June 2014, the Venice Commission adopted the Guidelines on the Legal Personality of Religious or Belief Communities, prepared jointly with the Office for Democratic Institutions and Human Rights of the Organisation for Security and Co-operation in Europe. Mention should be made of the following provisions of these guidelines that are relevant to this constitutional justice case:

states may choose to grant certain privileges to religious or belief communities or organisations (for example, financial subsidies, financial contributions through the tax system or membership in public broadcasting agencies) (point 38);

it is only when granting such benefits that additional requirements may be placed on religious or belief communities, as long as those requirements remain proportionate and non-discriminatory (point 38);

the legal regulation granting privileges to religious or belief communities or organisations must have an objective and reasonable justification, which means that it pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the intended aim (point 39).

13.3. In the Opinion 664/2012 on Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities of Hungary adopted by the Venice Commission at its 90th Plenary Session on 16–17 March 2012, when assessing the legal regulation, whose establishment was proposed in Hungary, which was to consolidate the duration requirement “at least 100 years internationally or in an organised manner as an association in Hungary for at least 20 year”, it should be noted that this requirement is very rigid and makes it very difficult for non-traditional religions to be registered and recognised (paragraphs 57–58). Thus, the Venice Commission recommended revising the duration requirement (paragraph 64), having noted that the proposed requirement is excessive with regard to the recognition of legal personality (paragraph 64).

14. In this constitutional justice case, the provisions of the jurisprudence of the European Court of Human Rights (ECtHR) related to, inter alia, the interpretation and application of the provisions of Article 9 of the Convention are relevant.

14.1. In interpreting and applying in its jurisprudence the provisions of Article 9 of the Convention, which is often read in conjunction with Article 14 thereof, the ECtHR has emphasised that freedom of thought, conscience and religion is one of the foundations of a democratic society. Although freedom of religion is first of all a matter of conscience for each person, it also, inter alia, means the freedom to manifest one’s religion either individually or jointly with others, in public and in a circle of persons of the same belief. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Since religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference (the judgment of 31 July 2008, Religionsgemeinschaft der Zeugen Jehovas and others v. Austria, no 40825/98, paragraph 61).

14.2. The ECtHR, while interpreting in its jurisprudence the provisions of Article 9 of the Convention, has also held that:

the obligation under Article 9 of the Convention incumbent on the State’s authorities to remain neutral in the exercise of their powers in this domain requires therefore that if a State sets up a framework for conferring legal personality on religious groups to which a specific status is linked, all religious groups which so wish must have a fair opportunity to apply for this status and the criteria established must be applied in a non-discriminatory manner (the judgment of 31 July 2008, Religionsgemeinschaft der Zeugen Jehovas and others v. Austria, no 40825/98, paragraph 92; the judgment of 12 March 2009, Löffelmann v. Austria, no 42967/98, paragraph 53; the judgment of 9 December 2010, Savez Crkava “Riječ Života” and others v. Croatia, no 7798/08, paragraph 87);

the establishment of the above-mentioned criteria relating to the acquisition of a particular status for religious groups (including a legal regulation imposing a waiting period before a religious association that has been granted legal personality can obtain a more consolidated status as a public-law body) raises delicate questions, as the State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs. Such criteria therefore call for particular scrutiny on the part of the Court (the judgment of 31 July 2008, Religionsgemeinschaft der Zeugen Jehovas and others v. Austria, no 40825/98, paragraph 97; the judgment of 9 December 2010, Savez Crkava “Riječ Života” and others v. Croatia, no 7798/08, paragraph 88);

the ECtHR could accept that such a period might be necessary in exceptional circumstances such as would be in the case of newly established and unknown religious groups. But it hardly appears justified in respect of religious groups with a long-standing existence internationally which are also long established in the country and therefore familiar to the competent authorities, as is the case with the Jehovah’s Witnesses. In respect of such a religious group, the authorities should be able to verify whether it fulfils the requirements of the relevant legislation within a considerably shorter period (the judgment of 31 July 2008, Religionsgemeinschaft der Zeugen Jehovas and others v. Austria, no 40825/98, paragraphs 95 and 98).

15. The ECtHR also emphasised that freedom of religion does not require to create a particular legal framework in order to grant religious communities a special status entailing specific privileges; nevertheless, a State that has created such a status must not only comply with its duty of neutrality and impartiality but must also ensure that religious groups have a fair opportunity to apply for this status and that the criteria established are applied in a non-discriminatory manner (the judgment of 8 June 2021, the Ancient Baltic religious association “Romuva” v. Lithuania, no 48329/19, paragraph 126).

In the said decision, adopted in the case the Ancient Baltic religious association “Romuva” v. Lithuania, the ECtHR, when examining whether persons in analogous or similar situations were treated differently, on the basis of the data provided in the case, including the fact that the Ministry of Justice had concluded that the applicant met the criteria laid down in the law in order to be granted state recognition, noted that, on a few occasions, the Seimas granted State recognition to religious associations which had fewer adherents than the applicant association, which indicates that the public support enjoyed by them was considered to be sufficient. In view of the fact that the Seimas granted state recognition to several religious communities differently from the applicants, the ECtHR concluded in this case that the applicant association was treated differently from other religious associations that were in an analogous or relevantly similar situation and that different treatment may not be based on beliefs (paragraphs 128-130).

16. Summarising, from the aspect relevant to this constitutional justice case, the provisions of the legal acts of the Council of Europe and the European Union, which consolidate the principle of freedom of religion and the particularities of its implementation and of the legal status of churches and religious organisations, as revealed, inter alia, in the jurisprudence of the ECtHR, it should be held that, although under the said Article 17(1) of the Treaty on the Functioning of the European Union, the member states have discretion to establish the status of religious organisations in national law and the states may decide to grant religious organisations, at their request, certain status (legal personality and/or other state recognition (where a religious association with legal personality may acquire a more consolidated status as a body governed by public law)), however, the requirements which must be satisfied by religious organisations in order to acquire a certain status conferring on them various rights, guarantees or privileges cannot be too difficult to implement; they must be proportionate and non-discriminatory (among others, the requirements of excessive duration in the State of existence prior to the registration of a religious organisation or the acquisition of a more consolidated status as a body governed by public law are not appropriate).

III

The provisions of the Constitution and the official constitutional doctrine

17. As mentioned before, in this constitutional justice case, it is investigated whether paragraph 2 of Article 6 of the Law, insofar as it stipulates that religious associations may request state recognition following a period of not less than 25 years from the date of their initial registration in Lithuania, is in conflict with the provision “The State shall recognise […] other churches and religious organisations, provided that they have support in society” of paragraph 1 of Article 43 of the Constitution.

18. Paragraph 1 of Article 43 of the Constitution prescribes: “The State shall recognise the churches and religious organisations that are traditional in Lithuania; other churches and religious organisations shall be recognised provided that they have support in society, and their teaching and practices are not in conflict with the law and public morals.”

18.1. When interpreting paragraph 1 of Article 43 of the Constitution, the Constitutional Court noted that the Constitution consolidates the threefold status of the churches and religious organisations that operate in Lithuania: some churches and religious organisations are traditional in Lithuania, other churches and religious organisations (non-traditional in Lithuania) are recognised by the state, yet other churches and religious organisations operating in Lithuania do not have the status of traditional churches or religious organisations in Lithuania, nor are they recognised by the state; the different status of the churches and religious organisations that are traditional in Lithuania and other churches and religious organisations that are recognised by the state stems from the Constitution itself (decision of 6 December 2007).

18.2. The Constitutional Court has held that the constitutional provision that the state recognises the churches and religious organisations that are traditional in Lithuania implies that the legislature may name certain religious organisations as traditional in Lithuania; the naming of churches or religious organisations as traditional is a special way of their recognition by the state (ruling of 13 June 2000); under the Constitution, the status of the churches and religious organisations that are traditional in Lithuania differs from the status of all other churches and religious organisations that operate in Lithuania (decision of 6 December 2007).

18.3. In the jurisprudence of the Constitutional Court, it has been held that the provision “The state recognises [...] other churches and religious organisations provided that they have support in society, and their teaching and practices are not in conflict with the law and public morals” of paragraph 1 of Article 43 of the Constitution means that certain churches and religious organisations that are not traditional in Lithuania may be distinguished from other churches and religious organisations that are not traditional by granting a special status to the former and by stipulating that they are churches and religious organisations recognised by the state (decision of 6 December 2007); it is only allowed to establish the different status for various churches and religious organisations in the state only under the criteria which are specified in the Constitution (ruling of 13 June 2000).

18.3.1. The condition “have support in society”, which is consolidated in paragraph 1 of Article 43 of the Constitution, means that support in society for a particular church or religious organisation should be strong and long-termed; therefore, it may not be limited to a small group of people or a small part of society, or to several decades of activities, or to one or a few generations; support in society for a particular church and religious organisation should be such that it would leave no doubt as to the support; when deciding whether a certain church or religious organisation may be granted state recognition, it should be ascertained that there is actual support in society for that church or religious organisation; under paragraph 1 of Article 43 of the Constitution, it should also be ascertained that the teaching and practices of that church or religious organisation are not in conflict with the law and public morals; if those conditions are not satisfied, state recognition may not be granted to a relevant church or religious organisation (decision of 6 December 2007).

18.3.2. The churches and religious organisations that are not traditional in Lithuania may obtain state recognition by the will of the Seimas and following a resolution adopted by it; such state recognition, differently from the statement that a certain church or religious organisation is traditional in Lithuania, may be withdrawn if a particular church or religious organisation recognised by the state loses its support in society or its teaching and practices become contradictory to laws or public morals (decision of 6 December 2007).

18.3.3. The Constitutional Court has also noted that if any other church or religious organisation (non-traditional in Lithuania) is recognised by the state, this in itself does not provide grounds for establishing for them such rights that are enjoyed by the churches and religious organisations traditional in Lithuania namely because they are traditional in Lithuania (decision of 6 December 2007); the establishment of such a differentiated legal regulation with regard to churches and religious organisations that are traditional in Lithuania, as well as with regard to other churches and religious organisations as collective legal entities, may not be interpreted as meaning that, as such, it denies the constitutional right of everyone to freely choose any religion or belief and, alone or with others, in private or in public, to profess his/her religion, to perform religious ceremonies, as well as to practice and teach his/her belief; as such, the said establishment does not mean that some believers are discriminated, while others are granted privileges (decision of 6 December 2007 and ruling of 4 July 2017).

19. In its ruling of 13 June 2000, the Constitutional Court also noted that the principle of state recognition of churches and religious organisations that are traditional in Lithuania, as well as other churches and religious organisations provided that they conform to the criteria provided for in the Constitution, which is consolidated in paragraph 1 of Article 43 of the Constitution is closely related to freedom of thought, conscience, and religion, which is laid down in paragraph 1 of Article 26 of the Constitution and which is, in its turn, inseparable from the right to have one’s own convictions and freely express them, as consolidated in paragraph 1 of Article 25 of the Constitution.

19.1. Paragraph 1 of Article 26 of the Constitution lays down that “Freedom of thought, conscience, and religion shall not be restricted”.

When interpreting this constitutional provision, the Constitutional Court held that the constitutional freedom of thought, conscience, and religion is one of the fundamental freedoms of individuals; it ensures the possibility for people holding various views to live in an open, just, and harmonious civil society; this freedom is not only an intrinsic value of democracy, but it is also an important guarantee that other constitutional human rights and freedoms will be implemented in a fully-fledged manner; in terms of its content, freedom of thought, conscience, and religion, which is recognised in democratic states under the rule of law, is a more specific expression of the broader human freedom, laid down in Article 25 of the Constitution, to have convictions and freely express them (rulings of 13 June 2000 and 4 July 2017).

19.2. Paragraph 1 of Article 25 of the Constitution prescribes that “Everyone shall have the right to have his own convictions and freely express them”.

19.2.1. When interpreting this constitutional provision, the Constitutional Court has stated that every human being has his/her views and convictions; the unrestricted possibility of expressing views and convictions is an elementary precondition for communicating with other people (rulings of 13 February 1997 and 22 December 2017); freedom of convictions and their expression consolidates ideological, cultural, and political pluralism (ruling of 13 June 2000); the Constitutional Court has noted that, under the Constitution, Lithuania is a pluralistic democracy (ruling of 21 December 2006 and conclusion of 22 December 2017) and that freedom of information is a fundamental element of a pluralistic democracy (ruling of 13 February 1997 and conclusion of 22 December 2017); the fact that the Constitution consolidates freedom of the expression of convictions and freedom of information means that the state is under the obligation to guarantee and protect, inter alia, the human right to have convictions and freely express them; the Constitution also consolidates the guarantees of an open society and pluralistic democracy (ruling of 10 March 1998).

19.2.2. The Constitutional Court has also noted that the right to freely practise religion or belief could not be exercised without guaranteeing the human right to hold and express his beliefs in the roots of that right and freedom (ruling of 10 March 1998).

20. It should be noted from the aspect relevant to this constitutional justice case that freedom of convictions and their expression, which is consolidated in paragraph 1 of Article 25 of the Constitution, and freedom of thought, conscience, and religion, which is laid down in paragraph 1 of Article 26 of the Constitution, imply religious pluralism, which guarantees the diversity of religions and beliefs and the coexistence and representation of different religious communities in society, which is inseparable an open, just, and harmonious civil society and pluralistic democracy. In the state acting under the conditions of pluralistic democracy, there exist various religions and beliefs and a tolerant attitude to the values of the various religions of members of society.

Based on the systematic interpretation of the provisions of paragraph 1 of Article 25, paragraph 1 of Article 26, and paragraph 1 of Article 43 of the Constitution, it should be pointed out that the right consolidated in the Constitution for other churches and religious organisations, which are not traditional in Lithuania, to obtain the status of a state-recognised religious association, provided that they meet the criteria set out in the Constitution, is a necessary element of pluralistic democracy. It means that the criteria for the state recognition of churches, which are established in the Constitution, inter alia, paragraph 1 of Article 43 thereof, cannot be interpreted formally as unduly restricting or preventing the granting of the recognition of the state to those churches and religious organisations which, as required by the Constitution, have the support in society and their teaching and practices are not contrary to the law and public morals.

20.1. As mentioned before, the condition “have support in society”, which is consolidated in paragraph 1 of Article 43 of the Constitution, means that support in society for a particular church or religious organisation should be strong and long-termed; therefore, it may not be limited to a small group of people or a small part of society, or to several decades of activities, or to one or a few generations.

Therefore, under the Constitution, inter alia, paragraph 1 of Article 43 thereof, when deciding whether the status of a religious organisation recognised by the state should be granted to a certain church or religious organisation, it is necessary to make sure that the church or religious organisation in question, which seeks recognition of the state, unites a sufficiently large group of people or part of society and that it has been operating for more than a few decades.

20.2. It should also be noted that, when deciding on granting state recognition to a certain church or religious organisation, under the Constitution, impossible things must not be demanded; it is necessary to take into account whether, due to, inter alia, certain historical or other significant circumstances prevailing in the state during the respective period, there existed the possibility for churches and religious organisations to establish themselves and lawfully function, thus ensuring the constitutional right of a person to freely choose any religion or belief, perform religious ceremonies, as well as practice and teach his/her religious belief.

Thus, according to the Constitutional, inter alia, paragraph 1 of Article 43 thereof, as interpreted in conjunction with paragraph 1 of Article 26 thereof, which establishes freedom of thought, religion, and conscience, in cases of decision making on granting state recognition to a certain church or religious organisation, it is not allowed to establish, by means of a law, such a legal regulation whereby the preconditions would be created for excessively restricting, unreasonably burdening, or even denying the right guaranteed under paragraph 1 of Article 43 of the Constitution to those churches and religious organisations that, as required by the Constitution, have support in society and whose teaching and practices are not in conflict with the law and public morals, to be distinguished from other churches and religious organisations that are not traditional, by granting them a special status – by establishing that they are churches and religious organisations recognised by the state; inter alia, it is not allowed to establish an excessively long time period for a religious organisation to acquire the right to apply for state recognition; in addition, it is not allowed to establish an excessively complicated and lengthy procedure for obtaining the status of a state-recognised religious organisation.

IV

The assessment of the compliance of paragraph 2 of Article 6 of the Law on Religious Communities and Associations with the Constitution

21. As mentioned before, the petitioner requests an investigation into whether paragraph 2 of Article 6 of the Law, insofar as it stipulates that religious associations may request state recognition following a period of not less than 25 years from the date of their initial registration in Lithuania, is in conflict with the provision “The State shall recognise[…] other churches and religious organisations, provided that they have support in society” of paragraph 1 of Article 43 of the Constitution.

22. In the opinion of the petitioner, the Seimas has the powers to grant state recognition to churches and other religious organisations, but only to those that meet two conditions consolidated in paragraph 1 of Article 43 of the Constitution: they have support in society and their teaching and practices are not in conflict with the law and public morals. According to the petitioner, the constitutional condition “have support in society” is related to more than several decades of activity, to more than one or several generations of people, i.e. the time is counted in hundreds rather than dozens of years. Thus, in the opinion of the petitioner, a time period of not less than 25 years from the date of the initial registration of a religious association in Lithuania in order to apply for state recognition is too short and, therefore, such a legal regulation is in conflict with the Constitution.

23. As mentioned before, the impugned paragraph 2 of Article 6 of the Law inter alia, prescribes: “Religious associations may request state recognition after the lapse of at least 25 years from the date of their initial registration in Lithuania.”

It has also been mentioned that paragraph 2 of Article 6 of the Law consolidates a time period upon the expiry of which the said association acquires the right to apply for state recognition: in order for a religious association to acquire such a right, at least 25 years after its initial registration in Lithuania must have passed, which is, in accordance with paragraph 4 of Article 6 of the Law, considered as having occurred if the religious association had lawfully functioned (had been registered) in Lithuania after 16 February 1918. The establishment of such a time period does not guarantee that, upon the expiry of the said time period, the other (non-traditional) religious association will be recognised by the state. As mentioned before, under paragraph 1 of Article 6 of the Law, state recognition means that the state supports the spiritual, cultural and social heritage of religious associations.

It has also been mentioned that, under paragraph 2 of Article 6 of the Law, as interpreted in conjunction with the provisions of paragraph 4 of Article 8 and paragraphs 2 and 3 of Article 9 thereof, as well as point 2 of paragraph 2 of Article 3.24 (wording of 3 December 2015) of the Civil Code, paragraph 6 (wording of 23 December 2020) of Article 6 of Law on State Social Insurance, paragraph 8 of Article 5 of the Law on the Lithuanian National Radio and Television (wording of 7 May 2020), and point 10 (wording of 10 December 2015) of paragraph 2 of Article 8 of the Law on Land Tax, only when the Seimas grants the status of a religious community recognised by the State to another religious association (non-traditional and not having the status of a state-recognised religious association) after it applies for such status at least 25 years after its initial registration in Lithuania, it (clergymen, nuns and monks thereof) acquires the right to enjoy, inter alia, certain rights enshrined in the above-mentioned laws only for traditional and other (non-traditional) religious associations recognised by the state and special guarantees of activity which are not enjoyed by other religious communities and associations (i.e. those which are not traditional and do not have the status of a religious community recognised by the state).

24. When deciding whether paragraph 2 of Article 6 of the Law, to the extent specified by the petitioner, is in conflict with the Constitution, it should be noted that, as mentioned before:

under the Constitution, inter alia, paragraph 1 of Article 43 thereof, churches and religious organisations that are not traditional in Lithuania may be distinguished from other churches and religious organisations that are not traditional by granting a special status to the former – by stipulating that they are churches and religious organisations recognised by the state; the right, consolidated in paragraph 1 of Article 43 of the Constitution for other churches and religious organisations, which are not traditional in Lithuania, to obtain the status of a state-recognised religious association provided that they meet the criteria set out in the Constitution is a necessary element of pluralistic democracy, an inseparable part of which is religious pluralism, guaranteeing the diversity of religions and beliefs and the coexistence and representation of different religious communities in society;

to establish the different status for various churches and religious organisations in the state only under the criteria which are specified in the Constitution; the condition “have support in society”, which is consolidated in paragraph 1 of Article 43 of the Constitution, means that support in society for a particular church or religious organisation should be strong and long-termed; i.e. such that it would leave no doubt as to the support; it may not be limited to a small group of people or a small part of society, or to several decades of activities, or to one or a few generations; under paragraph 1 of Article 43 of the Constitution, it should also be ascertained that the teaching and practices of that church or religious organisation are not in conflict with the law and public morals; if those conditions are not satisfied, state recognition is impossible to a relevant church or religious organisation;

when deciding on the granting of state recognition to a church or religious organisation, it is necessary to take into account whether, due to, inter alia, certain historical or other significant circumstances prevailing in the state during the respective period, there existed the possibility for churches and religious organisations to establish themselves and lawfully function, thus ensuring the constitutional right of a person to freely choose any religion or belief, perform religious ceremonies, as well as practice and teach his/her religious belief; under the Constitution, in cases of decision making on granting state recognition to a certain church or religious organisation, it is not allowed to establish, by means of a law, such a legal regulation whereby the preconditions would be created for excessively restricting, unreasonably burdening, or even denying the right, guaranteed under paragraph 1 of Article 43 of the Constitution, to those churches and religious organisations that, as required by the Constitution, have support in society and whose teaching and practices are not in conflict with the law and public morals, to be distinguished from other churches and religious organisations that are not traditional, by granting them a special status – by establishing that they are churches and religious organisations recognised by the state; inter alia, it is not allowed to establish an excessively long time period for a religious organisation to acquire the right to apply for state recognition.

24.1. It should be noted that the legal regulation consolidated in paragraph 2 of Article 6 of the Law, under which a religious association acquires the right to apply for the state recognition at least 25 years after its initial registration in Lithuania, lays down the requirement which must be met by the religious association so that the procedure for granting state recognition for it could be initiated during which it will be assessed whether the religious association, which has submitted the relevant application, may be granted state recognition, i.e. whether it satisfies the criteria of the state-recognised religious association. Thus, the time period of not less than 25 years, as established in paragraph 2 of Article 6 of the Law, is not one of the conditions for granting state recognition to a religious community (namely, to have support in society and to ensure that the teaching and practices of that church or religious organisation are not in conflict with the law and public morals) and may not be identified with them; this time period is only a precondition for instituting the procedure for granting state recognition.

It should also be noted that the legal regulation laid down in paragraph 2 of Article 6 of the Law creates the preconditions allowing to seek state recognition also by those religious organisations that, due to historical circumstances resulting in Lithuania from the aggression carried out on 15 June 1940 by the USSR against the Republic of Lithuania and the occupation of the territory of the Republic of Lithuania, when, inter alia, the constitutional right of a person to freely choose any religion or belief, to perform religious ceremonies, and to practice his/her religious belief was not ensured, could not establish themselves and lawfully function and they could do so only after Lithuania restored its Independence. If, according to the petitioner, under the Constitution, it were required to establish, by means of a law, a longer time period, such as the one counted in hundreds of years, following the initial registration of a religious association in Lithuania in cases where the said association seeks state recognition, some religious associations, inter alia, those that could function unregistered, would not be able to exercise the right, guaranteed by the Constitution, inter alia, Article 43 thereof, to churches and religious organisations that are not traditional in Lithuania, to be distinguished from other churches and religious organisations that are not traditional, by granting them a special status  (by establishing that they are churches and religious organisations recognised by the state), implying the acquisition of certain rights and special guarantees for their activities which are not enjoyed by other (non-traditional) religious communities and associations not recognised by the state, even if they meet the criteria set out in the Constitution, inter alia, in Article 43 thereof, for obtaining the status of a state-recognised religious organisation, i.e. even if they have support in society and their teaching and practices are not in conflict with the law and public morals. Thus, a legal regulation would be introduced whereby the impossible would be required, which is prohibited under the Constitution.

24.2. Therefore, there are no constitutional arguments for stating that, in exercising its discretion to decide on granting the status of a state-recognised religious association, the Seimas was not allowed to establish, in paragraph 2 of Article 6 of the Law, such a requirement for instituting the procedure for granting state recognition to a religious association whereby it is required that a certain number of years, inter alia, not less than 25 years, would have passed since the initial registration of a religious association in Lithuania in cases where the said association seeks state recognition.

Thus, it should be held that the impugned legal regulation, laid down in paragraph 2 of Article 6 of the Law, did not violate paragraph 1 of Article 43 of the Constitution, under which, inter alia, it is not allowed to establish an excessively long time period for a religious organisation to acquire the right to apply for state recognition.

25. In view of the foregoing arguments, the conclusion should be drawn that the provision “Religious associations may request state recognition following a period of not less than 25 years from the date of their initial registration in Lithuania” of paragraph 2 of Article 6 of the Law is not in conflict with the provision “The State shall recognise […] other churches and religious organisations, provided that they have support in society” of paragraph 1 of Article 43 of the Constitution.

26. In the context of this constitutional justice case, it should be noted that the Constitutional Court has held that after it establishes that the impugned legal regulation is unconstitutional from the aspect other than that impugned by the petitioner, the Constitutional Court must state that (rulings of 22 September 2015, 4 July 2017, and 16 April 2019); the implementation of constitutional justice implies that a legal act (part thereof) that conflicts with the Constitution must be removed from the legal system (inter alia, the rulings of 22 September 2015, 4 July 2017, and 16 April 2019).

27. It has been mentioned that paragraph 2 of Article 6 of the Law, inter alia, prescribes: “If the request is denied, it may be resubmitted after the lapse of 10 years from the day the request was denied.”

It has also been mentioned that the impugned paragraph 2 of Article 6 of the Law also consolidates the time period upon the expiry of which other (non-traditional) religious associations may reapply for state recognition in cases where the Seimas has refused to grant them the status of a religious association recognised by the state; in such a case, only following a period of 10 years from the day on which the request to grant state recognition was not satisfied, the said religious association may reapply for state recognition.

28. It has also been mentioned that under the Constitution, inter alia, paragraph 1 of Article 43 thereof, as interpreted in conjunction with paragraph 1 of Article 26 thereof, which establishes freedom of thought, religion, and conscience, it is not allowed to establish, by means of a law, such a legal regulation whereby the preconditions would be created for excessively restricting, unreasonably burdening, or even denying the right, guaranteed under paragraph 1 of Article 43 of the Constitution, to those churches and religious organisations that, as required by the Constitution, have support in society and whose teaching and practices are not in conflict with the law and public morals, to be distinguished from other churches and religious organisations that are not traditional, by granting them a special status – by establishing that they are churches and religious organisations recognised by the state; inter alia, it is not allowed to establish an excessively complicated and lengthy procedure for obtaining the status of a state-recognised religious organisation.

28.1. As mentioned before, neither the impugned paragraph 2 of Article 6 of the Law, nor other provisions of this article or Law prescribe as to when the Seimas, in the exercise of its discretion to decide on granting state recognition to a certain religious association, must take the respective decision to grant or refuse to grant the status of a state-recognised religious association. Therefore, after a religious association applies, under Article 6 of the Law, for state recognition, such a decision may be adopted by the Seimas after several or more years. It should be noted that the material of the case, inter alia, the written opinions submitted in this case, makes it also clear that the procedure for granting state recognition to a religious association may take a long time.

28.2. It should be held that the legal regulation laid down in paragraph 2 of Article 6 of the Law, according to which, if the request of a religious association to grant it the status of a state-recognised religious association is not satisfied, it may reapply for state recognition only following a period of 10 years from the day on which the request was not satisfied, creates the preconditions for excessively restricting or unreasonably burdening the right, guaranteed under paragraph 1 of Article 43 of the Constitution, to those churches and religious organisations that, as required by the Constitution, have (or over time acquire) support in society and whose teaching and practices are not in conflict with the law and public morals, to be distinguished from other churches and religious organisations that are not traditional, by granting them a special status, as the duration of the procedure for obtaining the status of a state-recognised religious organisation becomes particularly lengthy. Thus, the legal regulation established in paragraph 2 of Article 6 of the Law consolidating a period of 10 years for submitting the reapplication for state recognition to a religious association is not constitutionally justifiable.

29. Taking into account the foregoing arguments, it must be concluded that the provision “If the request is not satisfied, it may be resubmitted following a period of 10 years from the day on which the request was not satisfied” of paragraph 2 of Article 6 of this Law is in conflict with paragraph 1 of Article 26 and paragraph 1 of Article 43 of the Constitution.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

 

ruling:

1. To recognise that the provision “Religious associations may request state recognition following a period of not less than 25 years from the date of their initial registration in Lithuania” of paragraph 2 of Article 6 of the Republic of Lithuania’s Law on Religious Communities and Associations (Official Gazette Valstybės žinios, 1995, No 89-1985) is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that the provision “If the request is not satisfied, it may be resubmitted following a period of 10 years from the day on which the request was not satisfied” of paragraph 2 of Article 6 of the Republic of Lithuania’s Law on Religious Communities and Associations (Official Gazette Valstybės žinios, 1995, No 89-1985) is in conflict with paragraph 1 of Article 26 and paragraph 1 of Article 43 of the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court: Elvyra Baltutytė

                                                                     Gintaras Goda

                                                                     Danutė Jočienė

                                                                     Giedrė Lastauskienė

                                                                     Vytautas Mizaras

                                                                     Algis Norkūnas

                                                                     Daiva Petrylaitė