STATE AND CHURCH
JOHN KHETSURIANI
(Legal Aspects of Relations)
TBILISI,2013
Dedicated to the 35th anniversary of enthronementand the 80th anniversary of birth of the Catholicos-Patriarch of All Georgia, the Archbishop of Mtskheta-Tbilisi, the Metropolitan of Bichvinta and Tskhum-Abkhazia, Ilia II
In the present edition, legal aspects of relations between the Georgian State and the Georgian Apostolic Autocephalous Orthodox Church, as well as the status of religious associations operating in Georgia are reviewed, legal nature of the Constitutional Agreement and other legislative acts, experience of foreign countries are analyzed, tasks of further improvement of the legislation in force in this area are set.
The edition is intended for legal scholars and legal practitioners, students of department of law and theological institutions, wide audience of readers interested in issues of relations of state and church.
EDITORS:
Ketevan Eremadze – Doctor of Law
Giorgi Kverenchkhiladze – Full Professor of Ivane Javakhishvili Tbilisi State University
FOREWORD
The problem of relations of State and Church is as old as the state and religious consciousness, however, its scientific study, mainly research of legal aspects of this problem, became possible in our country only from the 1990s, when Georgia restored the state independence and introduction of totally new legal forms began in the relations of the Georgian State and the Church. Legislation in this area began to develop in two directions: on the one hand, relations between the State and the Orthodox Church were based on the agreement principle and on the other hand, legal status of other religious associations was defined by the legislation in force. The Georgian law-maker had relevant grounds for such dualistic approach, which is not new for modern European countries. It is sufficient to say that historically, Christian Orthodoxy was a state religion in Georgia for 15 centuries and the number of believing Orthodox congregation exceeds 83% of the Georgian population. At the same time, as compared to other religious associations, the role of the Georgian Orthodox Church in the history of Georgia is absolutely different.
Georgia has always been a multiconfessional country, with the dominant position of the Orthodox Church starting from the 4th century. Despite this, the Georgian State was always distinguished for religious tolerance and ensured full freedom of religion and confession for people of different religions. In the Religious Law, which is currently formed in our country as one of the branches of Constitutional Law, the historic culture of religious tolerance of the Georgian State is entirely maintained.
During the recent years, more and more attention is paid to study of legal problems of religion in the Georgian legal literature, but it is not sufficient for full scientific research of this problem. The present edition serves the goal of partial closure of this gap. As for the comprehensive and thorough scientific understanding of Religious Law, this is the subject of future research of Georgian legal scholars.
STATE AND CHURCH
In the late 20th and the early 21st century, at the turn of the third millennium, the most significant events which happened in Georgia exerted a great influence on the political, economic, cultural and spiritual life of the Georgian nation. The country restored the state independence and returned to its natural condition – continued the tradition of three thousand year old Georgian statehood. Simultaneously, it started to build a democratic, legal state.
Along with the complicated problems of state-building, the issues of legislative regulation of legal state of the Georgian Orthodox Church, as well as other religious organizations, relations between the state and the church, freedom of religion and confession had to be resolved.
Resolution of these issues at the modern stage seemed to be easy as the fundamental human rights in the area of religion and confession and international legal standards of equality of religious organizations are universally known. Naturally, democratic, legal state-building required introduction of these universally recognized international legal norms and principles in the national legislation first of all. But historic experience and traditions of the Georgian people had to be considered at the same time.
Georgians are an ancient Christian Orthodox nation. The majority of the Georgian population are Orthodox Christians, however, the significance of the Christian religion for Georgians is not defined only by the number of believing congregation. The Christian Orthodoxy established a centuries-long Georgian culture, national outlook and values. As Ilia Chavchavadze wrote: “Christianity has maintained our land, our language, our identity, our nationality … Christianity meant the entire Georgia … it meant being a Georgian … Georgian and Christian are words having the same meaning.”1 Such significance of the Christian religion for the Georgian nation was the result of the activities of the Georgian Orthodox Apostolic Church, which always adhered to national principles and played the greatest role in the historic process of establishment of the Georgian national state, struggle for physical and spiritual survival of the Georgian nation. It can be safely said that the basis of the Georgian civilization was Orthodoxy. The Catholicos-Patriarch of All Georgia, His Holiness and Beatitude Ilia II notes: “Many things that our nation is proud of in literature, architecture and other areas of art, were created on the basis of spirituality and civilization.”2
That’s why historically, Christian Orthodoxy was a state religion in Georgia. This period was the longest and covers many centuries (4th-19th).
Annexation of Georgia by the Russian Empire in the early 19th century was followed by abolition of the Georgian statehood (1801) and of the autocephaly of the Georgian Orthodox Church (1811). With the efforts of outstanding clerical and secular public figures, the entire Georgian society, the Georgian Orthodox Church restored autocephaly on March 12 (25), 1917. Restoration of autocephaly of the Georgian Church in the Russian Empire meant not only regaining of the deprived rights of self-governance to the Georgian Church, but also heralded the beginning of restoration of the Georgian statehood abolished by external forces. Indeed, Georgia regained state independence on May 26, 1918 and was established in the form of a democratic republic. Social-democrats constituted the majority in the government and the parliament of the democratic republic, whose socialist ideology was based on atheistic principles and naturally, it could not have been well-disposed to the Orthodox Church. According to the Constitution of the first Republic of Georgia (1921), none of the religions were given an advantage, the state and the church were recognized as separate subjects. Earlier, teaching of the Law of the Lord and position of the teacher of the Law of the Lord were abolished by the law of November 26, 1918 “in all public and private schools of all types and levels”. Religious holidays were removed from the list of holidays by the law of June 17, 1919. On the other hand, the first day of the Great Russian Revolution – March 12 and the Day of International – May 1 – were declared as civil holidays.3
Occupation and annexation of the Georgian democratic republic by Soviet Russia in 1921 were followed by the 70-year long aggressive atheism epoch, when atheism was brought to the level of state ideology. By Soviet Constitutions, church was separated from state, school was separated from church. During this period the church continued to exist without any legal grounds. By Decree of the Georgian Revolutionary Committee dated April 15, 1921, the Georgian Orthodox Church as well as other religious associations, were deprived of the legal entity status and property. In this Decree of the Georgian Revolutionary Committee it was written: “No clerical or religious society has a right to have property. They do not have a right of a legal entity (Paragraph 14).”4Irreparable loss and damage were caused to the Georgian Church by the government which was hostile towards religion under the communist regime. Majority of churches and monasteries were closed in an administrative proceeding, many of them were burnt, destroyed and used inappropriately, the entire property of the church was confiscated, and the majority of clerical persons were repressed.5
Even though no noticable change occurred in the legal state of the church and the Soviet power continued to diligently introduce the principles of atheistic ideology in the society, with the efforts of Catholicos-Patriarch of All Georgia, Ilia II, a complicated process of restoration of the Georgian Orthodox Church began in the 1970s, which intended not only to strengthen the organizational and material principles of the church but also to develop the “national identity” in the Georgian nation, regaining of the Georgian consciousness, return of the Georgian nation to its traditional religious and moral origins. It is noteworthy that during this period, namely on March 4, 1990, the World Patriarchate made a decision to restore the historic autocephaly of the Georgian Orthodox Apostolic Church and the patriarchal title of its leader.6
It should also be mentioned that considering the international recognition of autocephaly of the Georgian Orthodox Church and requirements of the Georgian society, the Georgian government made an uncommon and unprecedented step for the Soviet power in terms of attitude to the church. Namely, the Council of Ministers of the Georgian SSR adopted a decree “On Religious Issues” on April 12, 1990.7Under this decree: all religious buildings and structures of the Georgian Orthodox Church and the Patriarchate of Georgia located on the territory of the republic and their movable and immovable property were declared as the property of the Georgian Orthodox Church; the local governance authorities were commissioned to transfer the above religious buildings and structures to the Patriarchate of the Georgian Orthodox Church free of charge; the institution of the Commissioner of Religious Affairs and its staff under the Council of Ministers of the Georgian SSR, which represented the administrative body of state intervention into and control of activities of religious associations, were abolished; local governance bodies were commissioned to review the issues of registration of other religious associations acting on the territory of the republic and their relations with the state.
Under the same decree, the issue of freedom of conscience and religion was put before the Supreme Council of the Georgian SSR for elaboration of the Georgian SSR draft law which would reflect a real and full independence of the Georgian Orthodox Church from the State. The Soviet power did not succeed in elaborating and adopting this draft law. These were the last days of its existence. Therefore, it can be implied that the above decree of the government of the Georgian SSR was only a certain attempt to redeem the crimes committed by the Soviet power towards the Georgian church over decades.
Increase of the role of the Georgian church in the social life of Georgia significantly contributed to the development of the national-liberation movement during these years, which resulted in the restoration of the state independence of Georgia on April 9, 1991. It is noteworthy that “as restoration of autocephaly of the Georgian Apostolic Church on March 12 (25), 1917 preceded declaration of the state independence, the same happened 73 years later”.8
The national government of the state began to modernize the 1978 Constitution of Soviet Georgia before the adoption of the new Constitution of Georgia. The changes were made in respect of relations of the state and the church to a certain extent. While in the previous version of the Constitution it was mentioned that “The Church is separated from the State and the School is separated from the Church in the republic of the Georgian SSR (Article 50)”, after making amendments, this provision of the Constitution reads as follows: “The Church is separated from the State in the republic of Georgia”. Based on the meaning of the constitutional change, it can be said that state and church are considered to be separate, independent subjects, but the same cannot be said about relations of school and church. The Constitution did not prohibit relations of church and school expressly and imperatively any more. As a result, some schools restored teaching of the Law of Lord on their initiative in those years. On initiative of the national government, holidays uncommon for the Georgian nation were abolished and traditional, among them, religious holidays were restored, by which the government confirmed its good disposition to the church.9Due to well-known cicrumstances, measures of legal regulation of relations of state and church, unfortunataly, were limited to the above.
The constitutional process began in Georgia since 1993, which underwent an extrelemy tense domestic political situation during 2.5 years and its purpose was to elaborate a second constitution of independent Georgia. The main issue, which represented a subject of heated debates at all stages of the constitutional process and underwent changes many times, was the issue of state governance, as it was directly connected with the struggle for power, which began in that period. That’s why it overshadowed by its significance other not less significant problems of state-legal regulation, including constitutional-legal regulation of state and church. No discussions were held in the Constitutional Commission on the problem of relations of state and church, while standard provisions of resolution of this issue were provided unaltered in almost all versions of the main draft law of the country: state and church are independent from each other and freedom of religion and confession is ensured. At the final stage of working out the draft Constitution, at a glance, a declarative, but rather important sentence by its meaning was added to the above provision of relations of state and church on the initiative of the Georgian Orthodox Church: “The state recognizes the special role of the Georgian Orthodox Church in the history of Georgia”. As this record considered the role of the Georgian church retrospectively, when adopting the final text of the Constitution of Georgia, it was not accentuated in the politically rather wide-range parliament.
Therefore, the new 1995 Constitution of Georgia established three most significant principles while defining relations between state and church (Article 9):
First, the Church is independent from the State;
Secondly, the State declares full freedom of religion and confession;
Thirdly, the State recognizes the special role of the Georgian Orthodox Church in the history of Georgia.
After enactment of the newly adopted Constitution, lawmaking activities became widely used for the purpose of adoption of laws stipulated by the Constitution, creation of legislative principles in almost all areas of state and social life and bringing the entire current legislation in compliance with the Constitution.
Georgia adopted a new Civil Code on June 26, 1997, which defined classification of legal entities, their organizational-legal forms in a totally new manner and established an organized system of types of legal entities. Legal entities were divided into legal entities of public and private law. Under the Civil Code, religious associations, as non-state organizations established on the basis of the legislation for achievement of public goals, were recognized as legal entities of public law (Article 1509, part 1, sub-paragraph “E”). To regulate the legal state of legal entities of public law, the law of Georgia “On Legal Entities of Public Law”10was adopted on May 28, 1999, however, proceeding from the common nature of this law, it was impossible to apply it to religious associations, as rather specific forms of legal entities of public law.
Therefore, the issue of adoption of a special law on religious associations was put on the agenda. Draft laws worked out by governmental or non-governmental organizations generally represented an attempt to define the legal status of all religious associations under one legislative act. Also, proposals were made to divide confessions into traditional and non-traditional religious associations and accordingly, their different legal regulation.
It became clear from the start that regulation of the legal status of all religious associations and relations connected with their activities in one legislative space would not be correct. The point is that the Constitution of Georgia, apart from declaring full freedom of religion and confession, independence of state from church, at the same time, as already mentioned, recognized the special role of the Georgian Orthodox Church in the history of Georgia. In addition to this historic role, the restored Georgian Church played an even more important role in the spiritual life of the Georgian nation, not only in the past, but currently as well. This special role and significance of the Georgian Orthodox Church required uncommon resolution of its legal regulation. At the same time, its transformation into an official state religion and any restriction of freedom of religion and confession in favour of Orthodoxy in a legislative manner, had to be excluded.
This was a rather complicated task, but a historically and legally proper form of its resolution was found. A constitutional agreement had to be concluded between state and church, as two independent subjects, for defining the status and issues of legal status of the Georgian Orthodox Church.
It is known that the optimal form of defining relations between independent subjects is an agreement, when the parties freely express their will and agree on the fate of relations to be regulated. Advantage of this form over common legislative regulation is that the government is restricted by the agreement and lacks an opportunity to unilaterally change the legal status of church by legislative innovations. Our people well remember this painful experience from the not so remote past. Under the communist regime, the church experienced derogation by the state and this happened on the basis of legal acts. The constitutional agreement would provide strong legal guarantees to the church in its relations with the state.
The same opinion was expressed by the Catholicos-Patriarch of All Georgia, Ilia II: “Relations between the State and the Church require a different approach at the contemporary stage, which is predetermined by domestic political organization of the country, as well as considering the international situation. Therefore, a constitutional agreement has been considered as the most acceptable form of relations between the State and the Church”.11
Constitutional agreement was a totally new institution in the Georgian law. This agreement was called constitutional, because the possibility, procedures of its conclusion and the subjects had to be defined by the main law of the state.
Naturally, such form of relations between the state and the church required constitutional changes. For this purpose, the Parliament of Georgia supported the legislative initiative of the President of Georgia on March 30, 2011 and adoped the constitutional law of Georgia,12 which defined the relations between the State and the Georgian Orthodox Church in a new manner. Under the Constitutional Law, Article 9 of the basic law, which as already mentioned, basic established three most important principles in relations of state and church, underwent changes. Two principles were added to them, namely: the first, relations between the Georgian State and the Georgian Apostolic Autocephalous Orthodox Church are defined by the Constitutional Agreement and secondly, the Constitutional Agreement should fully comply with the universally recognized principles and norms of international law, namely, in the area of human rights and fundamental freedoms (Article 9, paragraph 2).
As is known, the more important are the relations to be regulated by law, the stronger should be the legal force of the corresponding legal act. Proceeding from the special importance of relations between state and church, the Constitutional Agreement prevails over other legal acts, after the basic law of the country. Namely, the Constitutional Agreement prevails over law, organic law and international treaty of Georgia. Accordingly, a significant correction was made to the hierarchy of legal acts. Namely, while before constitutional changes, an international treaty was the act of supreme legal force after the Constitution and compliance with the Constitution represented one of the necessary preconditions for legitimacy of this act, after the changes, the necessity of compliance of an international treaty with the Constitutional Agreement was added to this provision (Article 6, paragraph 2).
Legal force of Constitutional Agreement is edetermined by an extrelemely complicated procedure of its adoption which is common for legal acts of superior legal force. According to the changes carried out in the Constitution of Georgia, the Constitutional Agreement with the Georgian Orthodox Church is concluded by the President of Georgia on behalf of the Georgian state and is approved by the Parliament by at least 3/5 of its members (Article 66, paragraph 11 and Article 73, paragraph 1, sub-paragraph “a1”).
An idea may arise, that attaching such high legal force to the Constitutional Agreement and establishment of its prevalence over an international treaty will lead to violation of human rights recognized by international legal norms on religion and confession and equality of other religious organizations.
In this respect, we consider it necessary to mention that despite its high legal force, the Constitutional Agreement still represents a legal act subordinate to the Constitution. Thus, it should fully comply with the requirements of the basic law of the country, including constitutional norms on freedom of religion and confession. At the same time, the demand of Article 9 of the Constitution is in force, which states that the Constitutional Agreement should fully comply with the universally recognized principles and norms of international law on human rights and fundamental freedoms. Otherwise, the Constitutional Agreement may become a legal act to be judged by the Constitutional Court. According to constitutional changes, the Constitutional Court of Georiga is authorized to make a decision on the issue of compliance of the Constitutional Agreement with the Constitution (Article 89, paragraph 1, sub-paragraphs “A” and “F”). Therefore, if a norm violating the fundamental human rights recognized by international law is established in the Constitutional Agreement, every person, whose rights are infringed, will be able to file a claim at the Constitutional Court to check the compliance of this norm of the Constitutional Agreement with the Constitution.
As we can see, protection of human rights in this area is guaranteed not only by the fact that full freedom of religion and confession is declared by the basic law of the country, but also by the possibility of court protection.
As a result of the above constitutional changes, the constitutional norms regulating the relations between state and church acquired a finalized form. The legal principles according to which lawmaking should be developed in this area were established at the level of the basic law of the country. The Constitution already provides the legal forms and mechanisms with the help of which the status of the Georgian Orthodox Church should be defined and relations with the state should be regulated.
These constitutional changes created a proper legislative basis for conclusion of the Constitutional Agreement between the State and the Church, which was carried out on October 14, 2002. The Constitutional Agreement was signed by the President of Georgia on behalf of the State and by the Catholicos-Patriarch of All Georgia on behalf of the Georgian Apostolic Autocephalous Orthodox Church in the Svetitskhoveli Patriarchal Church in Mtskheta. On October 17, 2002 the Holy Synod of the Georgian Orhodox Church and the Georgian Parliament approved the Constitutional Agreement between the Georgian State and the Georgian Apostolic Autocephalous Orthodox Church by the decree of October 22, 2002 (No. 1697-I s). The Constitutional Agreement became effective immediately upon approval by the Parliament and the Holy Synod (Article 12, paragraph 4 of the constitutional agreement).
In the Constitutional Agreement the Georgian Orthodox Church is recognized as a historically established, fully legitimate legal entity of public law, which carries out its activities according to norms of ecclesiastical (canonic) law, Constitution of Georgia, this agreement and the Georgian legislation (Article 1, paragraph 3). Thus, the state recognizes that the Orthodox Church is a historically existing entity of special function and significance for our country. Powers of the church in the cultural-educational, defense, justice, social protection areas are defined, orthodox churches, monasteries, land plots, church treasury protected by the state (preserved in museums, depositories) are declared as the property of the church in the Constitutional Agreement. At the same time, the state confirms the fact of inflicting material and moral damage to the church during 19-20th centuries, in the period of loss of state independence and undertakes to partially compensate the material damage. The State and the church are also empowered to conclude agreements in various areas of common interests, for the purpose of implementation of which corresponding acts are made.
The Constitutional Agreement is a strong legal basis for the Georgian Orthodox Church. Any changes and additions can be made to it only by mutual agreement of the State and the Church. At the same time, legal acts issued in contradiction to norms and principles of the Constitutional Agreement by state authorities will not have legal force. In this respect, it is correctly mentioned in legal literature that: “This Agreement is not a document granting rights by the State as the superior organization to an inferior organization. It represents an agreement of two equal legal entities on distribution of responsibility before citizens of their own country. Thus, changes can be made to it only upon approval by the supreme legislative authority of both countries – the Parliament of Georgia and the Holy Synod. Bilateral signatures are also required for a change, i..e. both the State, and the Church should support the change. Thus, willful act of the government towards the church will be legally avoided.”13
Such form of relations between the State and the Church is considered as one of the forms of “parallel attitude”, namely “system of equality” in scientific literature. According to Professor Panagiotis Boumis, “According to this system, two institutions – state and church are identified as mutually equivalent. Neither the state governs or supervises the church, nor the church applies the practice of governance or supervision towards the church. Limits of power of both institutions are established by an agreement concluded between them (Concordat)”14. Another type of “parallel attitude” between state and church is the “full delimitation system”, according to which, the state considers religion as a private matter, and the church – as a legal entity of private law. Under this system, the attitude of the state towards the church fluctuates between well-disposed neutrality and an expressly hostile position”.15The US is considered to be an exemplary country of “full delimitation system”. A special law on religious organizations is not adopted in this country. The attitude of the state to religion is defined by the First Amendment to the US Constitution (1791), which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”16Religious associations are given a status of legal entity of private law here. For legal relations, for instance, Catholic Church is established in the US in the form of a trust similar to a fund. Activities of religious associations and religious education are totally based on self-financing and donations. The US is distinguished by a loyal attitude to the Church.17
Full delimitation system is exercised in France as well. After breaking diplomatic relations with the Holy See in 1904, the regime of separation of state and church was restored in France by the law adopted on September 9, 1905, which is effective currently. According to the law, freedom of religion and confession is guaranteed, no religion should be legally recognized. The status of “recognized church” is annuled. Church is not reviewed as a public institution, it is a part of the private sector. Religious organizations act in the form of hieratic associations or cultural associations. The 1958 Constitution of France strengthened the policy of state neutrality towards religion at the level of the main law. Constitutional provisions will be restricted to the extent that to express loyalty to human rights protection, the Preamble refers to the 1789 Declaration “On Human and Citizen Rights” one of the main principles of which is freedom of religion. France is declared a secular republic. Equality of all citizens before law, regardless of their attitude to religion is ensured. The state respects all religions (Article one). Due to the above, it is noteworthy that the attitude of the state to religion is characterized in scientific literature as follows: “silence, separation policy of the Constitution, neutrality of the state and carefulness of legislation.”18
“Full delimitation system” was exercised during the first republic of Georgia (1918-1921), as well as during the Soviet period, however, as already mentioned, the Soviet state showed an expressly hostile attitude towards religion.
A system, totally different from the above mentioned relations between the state and the church, functions under conditions of recognition of this or that religion as an official, state religion, because when recognizing this or that religion as a state religion, we are not talking about independence of the church from the state, but on the contrary, the status of official religion is attached to this religion and a relevant religious organization becomes a constituent of state structure. Dominant religious associations – state churches – exert a significant influence on various areas of state and social life, affect state policy, define areas of educational activities, carry out some state functions (for example, regulation of family relations, executing justice on cases of certain categories etc.). Dogmas of state religion are recognized as the source of justice. State churches are financed from the state budget and enjoy various benefits.19
Currently, state religion is recognized in many countries of the world. Not to mention the Oriental countries where Islam is the most wide-spread state religion (for example, Saudi Arabia, Iran, Pakistan etc.), state religion and state churches also exist in those states where legal state-building was finalized long ago and human rights are properly protected, for example: the Anglican Church in the Great Britain, Catholic church in Portugal, Argentina, Ireland, Evangelical-Lutheran church in Sweden, Norway, Denmark, Iceland, Oriental-Orthodox Church in Greece, Bulgaria.
It is noteworthy that, as a rule, state religion in these countries is recognized not by common law, but by the Constitution. The main law defines the general principles of relations between the state and the church, and naturally, national normative acts and international treaties should be in compliance with those principles. For example, in Article 2 of the Constitution of Norway it is stated: “The Evangelical-Lutheran religion shall remain the official religion of the State. The inhabitants professing it are bound to bring up their children in the same”.20The Constitution of Greece begins with the following words: “In the name of the Holy and Consubstantial and Indivisible Trinity, the Fifth Revisionary Parliament of the Hellenes Resolves …”. In Article 3 it is stated: “The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ”, under Article 13 “Proselytism is prohibited”, Chapter three defines the “Regime of Aghion Oros (Mount Athos)” etc.21
When any religion is recognized as an official, state religion, the “system of subordinate dependence” is applied, which implies either subordination of state to church (Papocaesarism) or on the contrary, subordination of church to state (Caesaropapism).22The first form of this system of relations between state and church (Papocaesarism) mainly dominated in the church of the West, where medieval papacy tried to obtain a legal right to overthrow monarchs. Supporters of this system considered that the church had to take advantage over the state by force for the salvation of people. Crusaders, the inquisition also relied on this opinion and led to gross interference of popedom in political events of the western world.23A clear example of subordination of state to church is theocratic governance when as a rule, the head of the dominant religious association is the head of state at the same time. For example, the spiritual leader of the world catholics – the Pope – is the head of the state of Vatican at the same time. However, Vatican does not have a common Constitution, but state-legal issues are regulated by acts of constitutional significance. Out of them, the agreement made between the Holy See and the Kingdom of Italy on February 11, 192924 should be mentioned first of all, according to which absolute power and sovereign jurisdiction of the Holy See over Vatican (Article 3) are recognized. Vatican is governed by the Pope elected for life, who is considered as “holy and protected” (Article 8). The Pope as the head of the Catholic Church and the state, possesses absolute power. It is stated in the above agreement that “Italy recognizes Vatican City State under sovereignty of the Pope” (Article 26). Various state institutions and officials operate in the country: State Secretary, Collegium of Cardinals, Courts, but their powers are rather limited.25By the law “On Legal Sources”, dated June 27, 192926, the main legal source in force in Vatican is the Code of Canon Law and laws adopted by the Head of Church or on the basis of powers granted by him, as well as acts issued by competent authorities according to the procedure established by law (Article 1). Italian laws are used for resolution of issues not provided in these sources, provided that these laws do not contradict the Scripture, main principles of the Canon Law and the Concordat signed between Italy and the Holy See (Article 3).
Features of theocratic monarchy characterize Saudi Arabia as well, where the head of state – the King – not only performs religious functions of the main protector of sanctities of the Muslim world, but also represents the head of Wahhabi movement of Islam. The procedure of delegation of power to the King is preceded by consent of a narrow circle of highest religious authorities – Ulems and only after that, by the decision of members of the Royal Council, which consists of representatives of a large family of Saudists.
Modern Iran has many features of theocratic governance, where clergymen of Shiite religion possess great power. Under the Constitution of the Islamic Republic of Iran:27Islam, in particular, its Shiite movement, is recognized as the official religion of Iran (Article 12); Only Iranian fire-worshippers, Jews and Christians represent religious minorities (Article 13); The republican system of Islam is based on the principle, according to which the primary importance for implementation of objectives set before the Islamic Revolution of Iran is attached to religious persons and primarily, their leader – the highest spiritual authority (Article 2, paragraph 5); The President of the Republic is considered to be the highest official of the country only after the leader (Article 113); the leader defines the common policy of the system of the Iranian Islamic Republic and imposes supervision over the correctness of its implementation (Article 110, paragraphs one and two); the leader appoints or dismisses the highest officials of state power of the country, inter alia, signs the resolution on the appointment of the President of the Republic after he is elected by the people (Article 110, paragraphs 6 and 9); three independent power authorities exist in Iran: legislative, executive and judicial, which act in accordance with the Constitution, but under supervision of the Imam (Article 57).
The system of subordination of state to church is also used in Andorra, according to whose Constitution, co-governors of this country are the Bishop of Urgel (Spain) and the President of France (Article 43).28
Another form of the “system of subordination” of relations between state and church – system of subordination of church to state (Caesaropapism), as mentioned in scientific literature, was formed as a reaction to the papist way of thinking and hierocracy. Its peculiarity is that politocractic power strives to seize both state power and hierocracy. According to this system, the supreme organization of power is the state and each institution should be subordinate to it.29 That’s why this system functions in all those countries where “the church is subordinate to the state under law”. In these cases, “religious confessions are under direct control of the state, which interferes in the religious life of its subjects by its laws and administrative actions even in the case of absence of official religion, for the purpose of restriction of patronage of official religion, if such exists, as well as interference of religious organizations in social life.”30 To ensure this, the head of the state is the top church leader at the same time or the state governs the church through power authorities. Among such countries are, first of all, Great Britain, where starting from Henry VIII, the kings have been the leaders of the Anglican church at the same time. During the reign of King Henry VIII, the power of the Pope over the English Church was abolished and the highest royal power was declared over it by the Act of Supremacy (1534). In accordance with the ActofSubmission of the Clergy passed the same year, convocations had to obtain the king’s consent for adoption of laws. The ecclesiastical law of England which addresses the English Church (including its Canon Law) is viewed as an integral part of the English legislation. Changes can be made to it by the General Synod which has been the assignee of the Ecumenical Council under the 1919 Act. In line with clergymen, laity are also members of the General Synod, which means that laity can also participate in the adoption of ecclesiastical laws. In order for the legislative measure adopted by the Synod to become a complete law, it should be approved by both Chambers of the Parliament. Afterwards, it is required to obtain the royal sanction for promulgation of a new law. In this respect, it is mentioned in scientific literature, that “this is a formal act which recognizes the supreme governance of the Queen of England over the Church of England. Legal significance of this event is that the Queen is not advised to sanction a law which contradicts a wider concept of English Law”. It is possible that this right of the English monarch may really be of formal nature, as the English monarch has never exercised the right of veto since 1707, but “more contradictive restriction of the freedom of church is expressed by the monarch’s right to appoint archbishops and eparchial bishops of the Church of England, as advised by the Prime Minister”. It is also noteworthy that archbishops and bishops are members of the House of Lords as well.
As for other churches, for instance, the Roman Catholic Church, as well as protestant denominations and other confessions, a general law on charitable institutions, namely, legislation on charitable trusts, applies to them. As a rule, churches separated from the state have a form of voluntary association and their property is managed by fiduciaries which may be registered companies on the basis of common law. Such associations have no special status. Due to that, there is no official list of churches “recognized” by the state in the United Kingdom. At the same time, it should be mentioned that legal norms directed against followers of the Roman Catholic Church and aiming to ensure hereditary protestant possession of royal power remain in force in England. The Monarch must be a member of the English Church. One who becomes a catholic or marries a catholic, will be excluded from royal succession. It is also noteworthy that a permanent diplomatic representative of the Pope was accepted at the Diplomatic Corps several years ago. As mentioned in scientific literature, it was a phenomenon which would have been unimaginable in past decades. The United Kingdom does not have a written Constitution and therefore, there is no formal constitutional guarantee of freedom of religion, however, this loophole is closed to a certain extent by the European Convention on Human Rights, which became a part of the national law of England after approval by the Human Rights Act. Since then, the freedoms guaranteed by the Convention, including freedom of religion are protected by the Court of England which can declare this or that part of the English legislation as inconsistent with the Convention.31
The system of Caesaropapism between state and church functions not only under monarchical, but also under republican governance. As already mentioned, the dominant, primary religion in Greece is Christian Orthodoxy. From the legal point of view, this privilege means that Christian Orthodox religion is an official religion of the state of Greece. Unlike non-orthodox associations which are recognized as associations by the Civil Code, the Orthodox Church enjoys a different status. It represents a legal entity of public law in legal relations, together with its units. The attitude of the state towards Orthodox Church is special and facilitatory, which is not applied to other religious movements.
The theoretical basis of relations between the state of Greece and church is a developed form of Caesaropapism, which is referred to as “supremacy of state law” in Greek literature. According to the Constitution, state has a right to issue laws on all administrative issues related to the church even if they address the internal structure of the church. General state supervision over all religious associations is exercised by a special unit of the Ministry of National Education and Hieratic Issues – General Secretariat on Hieratic Issues. This unit includes departments, whose competence covers issues of religion, ecclesiastical education and religious teaching, as well as issues of other (non-Orthodox) religious associations. It is noteworthy that the competence of Different (non-Orthodox) Religion Department includes the issues of appointment, dismissal and official status of the Chief Rabbi of Greece, Chief Rabbis of Jewish communities and three Muslim Muftis of the Muslim minority of Western Thrace. The Ministry of Foreign Affairs is also responsible for religious issues within its competence. Departments of this Ministry are responsible for resolution of issues related to activities of the Orthodox, other Christian churches and orthodox-theological schools, ecclesiastical centers located beyond boundaries of Greece, activities of Orthodox Greek clergymen living abroad. Competence of the Ministry of Foreign Affairs also includes issues of civil governance of Mount Athos.
Metropolitan eparchies in Greece represent legal entities of public law. Archbishop is the chief administrator in province and holds the title of Metropolitan. Issues related to churches and eparchies are considered by the Metropolitan Council which consists of the judge, official of the Ministry of Finance, two priests and an eparchy advisor. Official documents on election of the Archbishop and the Metropolitan are submitted to the Ministry of Education and Hieratic Issues, which arranges promulgation of the Presidential Decree. Congregational churchesas well as monasteries are legal entities of public law. They are established under the Presidential Decree. There is no church tax in Greece. The state nearly entirely undertakes to finance the primary church. At the same time, the state covers all expenses of education of orthodox church servants. Teachers of theological academies are equal to public officials. The state pays salaries to prelates and priests serving in congregational churches, as well as salaries to deacons, preachers and laity serving in the Orthodox Church. These persons are paid pensions by the state. Priests serving in the army and police forces are awarded the rank of officer and they are paid salary or pension due to their rank.32As we can see, church is nearly completely governmentalized. Only Mount Athos is an exception, which enjoys autonomy and is governed by clergymen according to the Constitution of Greece (Article 105).
Certain signs of Caesaropapism characterized the relations between the State and the Church established in Georgia as a result of the church reform carried out by the Georgian King David Aghmashenebeli in the 12th century. After the Ruis-Urbnisi EcclesiasticCouncil(1104) convoked by David Aghmashenebeli for eradication of disorders spread in the church in that period and carrying out a new ecclesiastical policy, it was decided to bring the most influential clergy member to state governance and thus, draw the church closer to royal power. For this purpose, David Aghmashenebeli combined two positions – Chqondideli and Mtsignobartukhutsesi. Since then, the high church official – Archbishop of Chqondidi was appointed as Mtsignobartukhutsesi, which was considered to be the Chief Vizier of the King.33In this respect, Ivane Javakhishvili mentions that Mtsignobartukhutsesi-Chqondideli, as the Archbishop and the Vizier, united ecclesiastical and secular power. Therefore, Mtsignobartukhutsesi was in charge of all issues related to churches and monasteries, clergy and nuns.34According to the historian of David Aghmashenebeli about that period, from now “monasteries and eparchies and all churches will accept the rule and order of praying and all church rules as the correct law, fully perfect and arranged, the order of prayer and fasting”.35Though Javakhishvili considers this information to be exaggerated but he notes that “as the state government was entitled to interfere into ecclesiastical issues in those times, it could possibly implement this right through the Mtsignobartukhutsesi. Only he was the chief priest and clergyman among viziers and it was more appropriate for him, as the sovereign of the kingdom, to take care about such issues than others”36
Thus, significant changes occurred in relations of the state and the church in terms of increase of rights of secular power in the ecclesiastical area in Georgia from the early 12th century. Under conditions when according to church dogmas of that period, the King could not formally interfere into resolution of church issues, by introducing the position of Mtsignobartukhutsesi-Chkondideli, the secular power obtained a real influence over church.
The presented classification of relations of state and church is not the only one, but at the same time, it is the most wide-spread in scientific literature. For example, together with the above two systems of relations of state and church, a so-called “coordination system”37is separately considered. However, in our opinion, its context is covered by the two previous main systems to a certain extent, therefore, we do not consider that its independent review will have any cognitive significance.
As we can see, systems of relations of church and state are rather diverse and are less dependent on the development level of the country. Relations of state and church in this or that country are significantly influenced by historic, political, ethnic factors, traditions etc. Any or several of these factors play a decisive role in the formation of system of relations of state and church in a specific country. Therefore, the form of relations of state and church which is successfully applied in one country, may appear to be totally unsuitable for a country with different culture and traditions.
At the same time, it should be mentioned that a differentiated approach to different religions by the state, for example, support of any religious organizations, is not an indicator of violation of “the equality principle and discrimination. It is mentioned in scholarly literature that “a different approach does not necessarily mean violation of the equality principle,when a reasonable basis for such differentiation exists … attitude to people having different views, considering their differences is a demonstration of deep respect, rather than equally placing everybody on the Procrustean bed”.38In this respect, the definition of Article 14 of the European Convention on Human Rights regarding prohibition of discrimination by the European Court of Human Rights is noteworthy, according to which, discrimination takes place not only when the state differenty treats persons being in equal, similar conditions without reasonable justification, but also when the state, does not differently treat the persons being in different conditions, without objective and reasonable grounds.39Objective grounds for a different attitude to this or that religion by the state may be the scale of dissemination of this religion in the country, the role played by this religion in the history of this country, the agreement concluded between a state and a religious association (Concordat) etc. For example, in the case “Iglesia Bautista “El Salvador” and Ortega Maratilla v. Spain”40, the European Commission on Human Rights established that the tax system which gave the Catholic church an advantage over protestant churches, did not violate Articles 9 and 14 of the European Convention on Human Rights. The Catholic Church was exempted from real property tax in Spain. The plaintiffs – the protestant church and the protestant leader – also demanded exemption from this tax, but they were rejected on grounds that concession of the state towards the Catholic Church was predetermined by the Concordat concluded between Spain and the Catholic Church. The state is empowered to exempt a church or a religious organization from tax payment without violation of Article 14 of the European Convention on Human Rights, if there is “an objective and justified explanation” of such different attitude. The Commission declared that in this specific case, based on the existence of the Concordat, the state had such explanation. As no such agreement (Concordat) was made with the Protestant church, accordingly, no discrimination had taken place towards the protestant church.
Therefore, proceeding from the above, we can conclude that granting a certain privilege to any religious organization by the state cannot be considered to be a discriminatory treatment of other religious organizations, violation of their equality principle, if objective and reasonable grounds exist for such different attitude. In our opinion, the main thing here is that freedom of religion and confession should not be restricted. So it is rather significant to clarify whether this or that form of relations of state and church affects the level of freedom of religion. It is mentioned in scientific literature, that in a dilettantish opinion, there is a directly proportional connection between freedom of religion and the level of identification of state and church. In particular, maximum freedom of religion is achieved in the case of full delimitation (non-identification) of state and church and on the contrary, there is no freedom of religion in the case of maximum identification of state and church (established church). This opinion is considered to be dilettantish as such approach is superficial and simplifies the issue under study.41The point is that this or that form of relations of state and church neither implies a low level of freedom of religion nor predetermines the growth of freedom of religion. For example, in the Soviet Union, when the principle of delimitation of state and church was fully applied, this did not contribute to ensuring freedom of religion at all. On the contrary, aggressive delimitation of state and church grew into confrontration and religious persecution. On the other hand, in Great Britain, where an established church is maintained and accordingly, the level of identification of state and church is rather high, equal treatment of all confessions is ensured and the level of freedom of religion is high. Therefore, as it seems, it is not the form of relations of state and church that determines the level of freedom of religion, but the political regime of the given country. At the same time, for the sake of objectivity, we should agree with the view that the two extreme forms of relations of state and church – full delimitation and strong identification – contain an increased risk of the restriction of freedom of religion growing into religious strife and persecution.42
It is also considered in scholarly literature that the best conditions for achievement of high level of freedom of religion are created during the regime of mutual cooperation of state and church and supported churches. Georgia is also on the list of the countries where such regimes prevail, along with Spain, Italy, Poland, Germany and several South American countries. Though the dominant church in these countries is not formally recognized as an official religion, they confirm that a corresponding church occupies a special place in the culture of the country. A supported church enjoys a special recognition, the state cooperates with it by various means, on the basis of a special agreement (Concordat), however, other religious groups also enjoy equal protection under the Constitution.43
The overview of types of mutual attitude of state and church, to which so much space was dedicated in this paper, is useful for better understanding of the appropriateness and correctness of the model of relations of state and church chosen by Georgia, on the basis of a comparative analysis. Considering all the above, it is safe to say that an absolutely correct legal form of relations between the Georgian state and the Orthodox Church has been found by introducing the concept of Constitutional Agreement. This form of relations ensures independence of the church, protection of its sovereign rights, on the one hand, and grants the church all rights necessary for performance of functions of uniter of the nation and other functions traditionally common for it, on the other hand. At the same time, interference of the state in church affairs (and vise versa) is excluded. Relations of state and church are based on principles of equality and cooperation of the parties. It is expressly stated in the Constitutional Agreement: “The State and the Church confirm their readiness for cooperation for the well-being of the population of the Country in accordance with the principle of reciprocal sovereignty” (Article one, paragraph one).
Together with defining the status of the Georgian Orthodox Church, it was also necessary to resolve the issues of attitude of the state towards other religious organizations operating in Georgia and their legal status to make the legislation on religious issues complete. In this respect, the following question should be answered first of all: was it possible to regulate the relations of the state with other religious organizations by an agreement, similar to the Georgian Orthodox Church? When answering this question, two circumstances should be taken into consideration in our opinion: organizational-legal and historic circumstances.
The Georgian Orthodox Church is Autocephalous. Unlike other religious organizations operating in Georgia, it is not a part of the church located beyond boundaries of Georgia, but it is represented in the organizationally completed form in Georgia. Other confessions are only structural units of religious organizations located beyond boundaries of Georgia and accordingly, they are subordinated to their centers. Their possibility of independent action is restricted. At the same time, as compared to the Orthodox Church, their role in the history of Georgia is absolutely different. Therefore, there is no legal or historic ground for concluding a Constitutional Agreement with them.
As the Civil Code of Georgia recognized religious organizations as legal entities of public law, and, as already mentioned, it was impossible to apply the framework law “On Legal Entities of Public Law” to religious organizations, their legal status had to be defined by a special law on religious associations. Unfortunately, such law was not adopted, which created a significant loophole in the legal regulation of religious associations. Suffice it to say that due to the non-existence of a special law, religious organizations could not be formed as legal entities of public law and accordingly, could not undergo state registration. The Code of Administrative Offences of Georgia considered avoiding registration of religious associations as an administrative offence and stipulated imposition of an administrative sanction on the manager of this association (Article 199). Some religious associations were registered as a non-entrepreneurial legal entity – union, to acquire the status of a legal entity, however, Tbilisi District Court (by resolution of June 26, 2000) and Supreme Court of Georgia (by resolution of February 22, 2001) cancelled their registration on the grounds that “until the procedure of creation, organization and activities of religious organizations as legal entities of public law has not been stipulated by law, according to Article 1509, part I, sub-paragraph “E” of the Civil Code of Georgia, it is inadmissible to use organizational-legal forms of legal entities of private law.”44In our opinion, the courts of superior jurisdiction made a correct resolution, as under the legislation in force a that time, religious associations could not be registered as legal entities of private law.
In order to improve this unclear situation and eliminate the legislative loophole, instead of adoption of a special law on religious associations, Article 1509 of the Civil Code was amended in 2005, as a result of which religious organizations were removed from the list of legal entities of public law45. The same year, an amendment was made to the Code of Administrative Offences of Georgia and liability for avoiding registration of religious associations was cancelled.46The Civil Code of Georgia was amended again in the following years, resulting in annullment of special norms on union and foundation47and introduction of the institution of the branch (representative office) of a non-entrepreneurial (non-commercial) legal entity of a foreign country.48
Apparently, the law-maker hoped that these amendments would allow religious organizations to be registered as non-entrepreneurial (non-commercial) legal entities or branches (representative offices) of a non-entrepreneurial (non-commercial) legal entity of a foreign country. But the expectations were not met. Only several religious organizations (for example, the Pentecostal Church, the Salvation Army, Seventh-Day Adventists etc.) were registered as non-entrepreneurial (non-commercial) legal entities. As for traditional religious associations (for example, Catholic Church, Muslim Community, Armenian Apostolic Church, Jewish Community etc.), these rejected the offered status and did not undergo registration. As it transpired, the reason for that was that they wished to obtain a legal status equal to the Georgian Orthodox Church, i.e. to become legal entities of public law, not private law. It was unacceptable for them to be registered as non-entrepreneurial (non-commercial) legal entities like non-governmental organizations.49While requiring this, these religious organizations did not consider that under legislation of those countries where they prevail (for example, Vatican, Armenia, Azerbaijan etc.), Orthodox Church and other religious organizations do not enjoy equal status and rights. For example, under the law of the Republic of Armenia “On Freedom of Conscience and Religious Organizations”, dated June 17, 1991 (3P-0333-1): the Armenian Apostolic Church is recognized as the national church of the Armenian people; a long list of missions is defined, whose implementation represents the privilege of the national church; The state is obliged to protect the Armenian Apostolic Church beyond the boundaries of the Republic of Armenia, as the national church; Proselytism is prohibited etc. As for followers of other confessions, they have to meet a number of requirements stipulated by this law to be considered as religious organizations and accordingly, obtain the status of a legal entity, in particular: their doctrine must be based on any historic canonized holy book; by their religion, they must be included in the system of the modern system of religious-ecclesiastical communities of the world; the number of believers must not be less than two hundred etc. At the same time and most importantly, a religious organization whose spiritual center is beyond the Republic of Armenia, can not be financed by this center.
It is not our task to identify and assess the legal status of the Armenian Apostolic Church in the Republic of Armenia. As it seems, such attitude of Armenian law-makers to their national church has an objective ground. But in this respect, it should also be mentioned that when a religious organization enjoying such status and privileges in its country demands to obtain a status equal to the dominant religious organization located in another country, we do not think it is fair. That’s why the dualistic approach of Georgian law-makers to identification of legal state of religious organizations which is so common for modern developed countries should not have been a hindering factor for traditional religious organizations in obtaining a status different from the Georgian Apostolic Orthodox Church.
Despite this, the period when traditional religious organizations were without a status, which was caused only by their position, continued for quite a long time. While looking for a way out of the obtaining situation, the Georgian government made a totally unexpected step.
On July 6, 2011 amendments were made to Article 1509 of the Civil Code of Georgia for the umpteenth time.50By this amendment, the law-maker first of all, corrected the previously made omission when the legal entity of public law recognized by the Constitutional Agreement of Georgia was included in the list of legal entities of public law without specifying its name, i.e. it was not mentioned that the Georgian Orthodox Church was implied here. As the Constitution of Georgia stipulated conclusion of the Constitutional Agreement by the state only with the Georgian Orthodox Church and only the Georgian Orthodox Church was recognized as the legal entity of public law by the Constitutional Agreement, the law-maker considered these provisions of the Constitution and wrote in the new version of sub-paragraph “F” of part one of Article 1509 that a legal entity of public law is “the legal entity of public law recognized by the Constitution of Georgia – the Georgian Apostolic Autocephalous Orthodox Church”. It was a formal arrangement of the issue. It was essential that a reference to a new Article 15091 was made in Article 1509 of the Civil Code, according to which the religious associations stipulated in this new Article are also considered to be legal entities of public law. Article 15091 itself, whose title is “Procedure of Registration of Religious Associations” allows religious associations to be registered as legal entities of public law (part one), provided that they have historic li
JOHN KHETSURIANI
(Legal Aspects of Relations)
TBILISI,2013
Dedicated to the 35th anniversary of enthronementand the 80th anniversary of birth of the Catholicos-Patriarch of All Georgia, the Archbishop of Mtskheta-Tbilisi, the Metropolitan of Bichvinta and Tskhum-Abkhazia, Ilia II
In the present edition, legal aspects of relations between the Georgian State and the Georgian Apostolic Autocephalous Orthodox Church, as well as the status of religious associations operating in Georgia are reviewed, legal nature of the Constitutional Agreement and other legislative acts, experience of foreign countries are analyzed, tasks of further improvement of the legislation in force in this area are set.
The edition is intended for legal scholars and legal practitioners, students of department of law and theological institutions, wide audience of readers interested in issues of relations of state and church.
EDITORS:
Ketevan Eremadze – Doctor of Law
Giorgi Kverenchkhiladze – Full Professor of Ivane Javakhishvili Tbilisi State University
FOREWORD
The problem of relations of State and Church is as old as the state and religious consciousness, however, its scientific study, mainly research of legal aspects of this problem, became possible in our country only from the 1990s, when Georgia restored the state independence and introduction of totally new legal forms began in the relations of the Georgian State and the Church. Legislation in this area began to develop in two directions: on the one hand, relations between the State and the Orthodox Church were based on the agreement principle and on the other hand, legal status of other religious associations was defined by the legislation in force. The Georgian law-maker had relevant grounds for such dualistic approach, which is not new for modern European countries. It is sufficient to say that historically, Christian Orthodoxy was a state religion in Georgia for 15 centuries and the number of believing Orthodox congregation exceeds 83% of the Georgian population. At the same time, as compared to other religious associations, the role of the Georgian Orthodox Church in the history of Georgia is absolutely different.
Georgia has always been a multiconfessional country, with the dominant position of the Orthodox Church starting from the 4th century. Despite this, the Georgian State was always distinguished for religious tolerance and ensured full freedom of religion and confession for people of different religions. In the Religious Law, which is currently formed in our country as one of the branches of Constitutional Law, the historic culture of religious tolerance of the Georgian State is entirely maintained.
During the recent years, more and more attention is paid to study of legal problems of religion in the Georgian legal literature, but it is not sufficient for full scientific research of this problem. The present edition serves the goal of partial closure of this gap. As for the comprehensive and thorough scientific understanding of Religious Law, this is the subject of future research of Georgian legal scholars.
STATE AND CHURCH
In the late 20th and the early 21st century, at the turn of the third millennium, the most significant events which happened in Georgia exerted a great influence on the political, economic, cultural and spiritual life of the Georgian nation. The country restored the state independence and returned to its natural condition – continued the tradition of three thousand year old Georgian statehood. Simultaneously, it started to build a democratic, legal state.
Along with the complicated problems of state-building, the issues of legislative regulation of legal state of the Georgian Orthodox Church, as well as other religious organizations, relations between the state and the church, freedom of religion and confession had to be resolved.
Resolution of these issues at the modern stage seemed to be easy as the fundamental human rights in the area of religion and confession and international legal standards of equality of religious organizations are universally known. Naturally, democratic, legal state-building required introduction of these universally recognized international legal norms and principles in the national legislation first of all. But historic experience and traditions of the Georgian people had to be considered at the same time.
Georgians are an ancient Christian Orthodox nation. The majority of the Georgian population are Orthodox Christians, however, the significance of the Christian religion for Georgians is not defined only by the number of believing congregation. The Christian Orthodoxy established a centuries-long Georgian culture, national outlook and values. As Ilia Chavchavadze wrote: “Christianity has maintained our land, our language, our identity, our nationality … Christianity meant the entire Georgia … it meant being a Georgian … Georgian and Christian are words having the same meaning.”1 Such significance of the Christian religion for the Georgian nation was the result of the activities of the Georgian Orthodox Apostolic Church, which always adhered to national principles and played the greatest role in the historic process of establishment of the Georgian national state, struggle for physical and spiritual survival of the Georgian nation. It can be safely said that the basis of the Georgian civilization was Orthodoxy. The Catholicos-Patriarch of All Georgia, His Holiness and Beatitude Ilia II notes: “Many things that our nation is proud of in literature, architecture and other areas of art, were created on the basis of spirituality and civilization.”2
That’s why historically, Christian Orthodoxy was a state religion in Georgia. This period was the longest and covers many centuries (4th-19th).
Annexation of Georgia by the Russian Empire in the early 19th century was followed by abolition of the Georgian statehood (1801) and of the autocephaly of the Georgian Orthodox Church (1811). With the efforts of outstanding clerical and secular public figures, the entire Georgian society, the Georgian Orthodox Church restored autocephaly on March 12 (25), 1917. Restoration of autocephaly of the Georgian Church in the Russian Empire meant not only regaining of the deprived rights of self-governance to the Georgian Church, but also heralded the beginning of restoration of the Georgian statehood abolished by external forces. Indeed, Georgia regained state independence on May 26, 1918 and was established in the form of a democratic republic. Social-democrats constituted the majority in the government and the parliament of the democratic republic, whose socialist ideology was based on atheistic principles and naturally, it could not have been well-disposed to the Orthodox Church. According to the Constitution of the first Republic of Georgia (1921), none of the religions were given an advantage, the state and the church were recognized as separate subjects. Earlier, teaching of the Law of the Lord and position of the teacher of the Law of the Lord were abolished by the law of November 26, 1918 “in all public and private schools of all types and levels”. Religious holidays were removed from the list of holidays by the law of June 17, 1919. On the other hand, the first day of the Great Russian Revolution – March 12 and the Day of International – May 1 – were declared as civil holidays.3
Occupation and annexation of the Georgian democratic republic by Soviet Russia in 1921 were followed by the 70-year long aggressive atheism epoch, when atheism was brought to the level of state ideology. By Soviet Constitutions, church was separated from state, school was separated from church. During this period the church continued to exist without any legal grounds. By Decree of the Georgian Revolutionary Committee dated April 15, 1921, the Georgian Orthodox Church as well as other religious associations, were deprived of the legal entity status and property. In this Decree of the Georgian Revolutionary Committee it was written: “No clerical or religious society has a right to have property. They do not have a right of a legal entity (Paragraph 14).”4Irreparable loss and damage were caused to the Georgian Church by the government which was hostile towards religion under the communist regime. Majority of churches and monasteries were closed in an administrative proceeding, many of them were burnt, destroyed and used inappropriately, the entire property of the church was confiscated, and the majority of clerical persons were repressed.5
Even though no noticable change occurred in the legal state of the church and the Soviet power continued to diligently introduce the principles of atheistic ideology in the society, with the efforts of Catholicos-Patriarch of All Georgia, Ilia II, a complicated process of restoration of the Georgian Orthodox Church began in the 1970s, which intended not only to strengthen the organizational and material principles of the church but also to develop the “national identity” in the Georgian nation, regaining of the Georgian consciousness, return of the Georgian nation to its traditional religious and moral origins. It is noteworthy that during this period, namely on March 4, 1990, the World Patriarchate made a decision to restore the historic autocephaly of the Georgian Orthodox Apostolic Church and the patriarchal title of its leader.6
It should also be mentioned that considering the international recognition of autocephaly of the Georgian Orthodox Church and requirements of the Georgian society, the Georgian government made an uncommon and unprecedented step for the Soviet power in terms of attitude to the church. Namely, the Council of Ministers of the Georgian SSR adopted a decree “On Religious Issues” on April 12, 1990.7Under this decree: all religious buildings and structures of the Georgian Orthodox Church and the Patriarchate of Georgia located on the territory of the republic and their movable and immovable property were declared as the property of the Georgian Orthodox Church; the local governance authorities were commissioned to transfer the above religious buildings and structures to the Patriarchate of the Georgian Orthodox Church free of charge; the institution of the Commissioner of Religious Affairs and its staff under the Council of Ministers of the Georgian SSR, which represented the administrative body of state intervention into and control of activities of religious associations, were abolished; local governance bodies were commissioned to review the issues of registration of other religious associations acting on the territory of the republic and their relations with the state.
Under the same decree, the issue of freedom of conscience and religion was put before the Supreme Council of the Georgian SSR for elaboration of the Georgian SSR draft law which would reflect a real and full independence of the Georgian Orthodox Church from the State. The Soviet power did not succeed in elaborating and adopting this draft law. These were the last days of its existence. Therefore, it can be implied that the above decree of the government of the Georgian SSR was only a certain attempt to redeem the crimes committed by the Soviet power towards the Georgian church over decades.
Increase of the role of the Georgian church in the social life of Georgia significantly contributed to the development of the national-liberation movement during these years, which resulted in the restoration of the state independence of Georgia on April 9, 1991. It is noteworthy that “as restoration of autocephaly of the Georgian Apostolic Church on March 12 (25), 1917 preceded declaration of the state independence, the same happened 73 years later”.8
The national government of the state began to modernize the 1978 Constitution of Soviet Georgia before the adoption of the new Constitution of Georgia. The changes were made in respect of relations of the state and the church to a certain extent. While in the previous version of the Constitution it was mentioned that “The Church is separated from the State and the School is separated from the Church in the republic of the Georgian SSR (Article 50)”, after making amendments, this provision of the Constitution reads as follows: “The Church is separated from the State in the republic of Georgia”. Based on the meaning of the constitutional change, it can be said that state and church are considered to be separate, independent subjects, but the same cannot be said about relations of school and church. The Constitution did not prohibit relations of church and school expressly and imperatively any more. As a result, some schools restored teaching of the Law of Lord on their initiative in those years. On initiative of the national government, holidays uncommon for the Georgian nation were abolished and traditional, among them, religious holidays were restored, by which the government confirmed its good disposition to the church.9Due to well-known cicrumstances, measures of legal regulation of relations of state and church, unfortunataly, were limited to the above.
The constitutional process began in Georgia since 1993, which underwent an extrelemy tense domestic political situation during 2.5 years and its purpose was to elaborate a second constitution of independent Georgia. The main issue, which represented a subject of heated debates at all stages of the constitutional process and underwent changes many times, was the issue of state governance, as it was directly connected with the struggle for power, which began in that period. That’s why it overshadowed by its significance other not less significant problems of state-legal regulation, including constitutional-legal regulation of state and church. No discussions were held in the Constitutional Commission on the problem of relations of state and church, while standard provisions of resolution of this issue were provided unaltered in almost all versions of the main draft law of the country: state and church are independent from each other and freedom of religion and confession is ensured. At the final stage of working out the draft Constitution, at a glance, a declarative, but rather important sentence by its meaning was added to the above provision of relations of state and church on the initiative of the Georgian Orthodox Church: “The state recognizes the special role of the Georgian Orthodox Church in the history of Georgia”. As this record considered the role of the Georgian church retrospectively, when adopting the final text of the Constitution of Georgia, it was not accentuated in the politically rather wide-range parliament.
Therefore, the new 1995 Constitution of Georgia established three most significant principles while defining relations between state and church (Article 9):
First, the Church is independent from the State;
Secondly, the State declares full freedom of religion and confession;
Thirdly, the State recognizes the special role of the Georgian Orthodox Church in the history of Georgia.
After enactment of the newly adopted Constitution, lawmaking activities became widely used for the purpose of adoption of laws stipulated by the Constitution, creation of legislative principles in almost all areas of state and social life and bringing the entire current legislation in compliance with the Constitution.
Georgia adopted a new Civil Code on June 26, 1997, which defined classification of legal entities, their organizational-legal forms in a totally new manner and established an organized system of types of legal entities. Legal entities were divided into legal entities of public and private law. Under the Civil Code, religious associations, as non-state organizations established on the basis of the legislation for achievement of public goals, were recognized as legal entities of public law (Article 1509, part 1, sub-paragraph “E”). To regulate the legal state of legal entities of public law, the law of Georgia “On Legal Entities of Public Law”10was adopted on May 28, 1999, however, proceeding from the common nature of this law, it was impossible to apply it to religious associations, as rather specific forms of legal entities of public law.
Therefore, the issue of adoption of a special law on religious associations was put on the agenda. Draft laws worked out by governmental or non-governmental organizations generally represented an attempt to define the legal status of all religious associations under one legislative act. Also, proposals were made to divide confessions into traditional and non-traditional religious associations and accordingly, their different legal regulation.
It became clear from the start that regulation of the legal status of all religious associations and relations connected with their activities in one legislative space would not be correct. The point is that the Constitution of Georgia, apart from declaring full freedom of religion and confession, independence of state from church, at the same time, as already mentioned, recognized the special role of the Georgian Orthodox Church in the history of Georgia. In addition to this historic role, the restored Georgian Church played an even more important role in the spiritual life of the Georgian nation, not only in the past, but currently as well. This special role and significance of the Georgian Orthodox Church required uncommon resolution of its legal regulation. At the same time, its transformation into an official state religion and any restriction of freedom of religion and confession in favour of Orthodoxy in a legislative manner, had to be excluded.
This was a rather complicated task, but a historically and legally proper form of its resolution was found. A constitutional agreement had to be concluded between state and church, as two independent subjects, for defining the status and issues of legal status of the Georgian Orthodox Church.
It is known that the optimal form of defining relations between independent subjects is an agreement, when the parties freely express their will and agree on the fate of relations to be regulated. Advantage of this form over common legislative regulation is that the government is restricted by the agreement and lacks an opportunity to unilaterally change the legal status of church by legislative innovations. Our people well remember this painful experience from the not so remote past. Under the communist regime, the church experienced derogation by the state and this happened on the basis of legal acts. The constitutional agreement would provide strong legal guarantees to the church in its relations with the state.
The same opinion was expressed by the Catholicos-Patriarch of All Georgia, Ilia II: “Relations between the State and the Church require a different approach at the contemporary stage, which is predetermined by domestic political organization of the country, as well as considering the international situation. Therefore, a constitutional agreement has been considered as the most acceptable form of relations between the State and the Church”.11
Constitutional agreement was a totally new institution in the Georgian law. This agreement was called constitutional, because the possibility, procedures of its conclusion and the subjects had to be defined by the main law of the state.
Naturally, such form of relations between the state and the church required constitutional changes. For this purpose, the Parliament of Georgia supported the legislative initiative of the President of Georgia on March 30, 2011 and adoped the constitutional law of Georgia,12 which defined the relations between the State and the Georgian Orthodox Church in a new manner. Under the Constitutional Law, Article 9 of the basic law, which as already mentioned, basic established three most important principles in relations of state and church, underwent changes. Two principles were added to them, namely: the first, relations between the Georgian State and the Georgian Apostolic Autocephalous Orthodox Church are defined by the Constitutional Agreement and secondly, the Constitutional Agreement should fully comply with the universally recognized principles and norms of international law, namely, in the area of human rights and fundamental freedoms (Article 9, paragraph 2).
As is known, the more important are the relations to be regulated by law, the stronger should be the legal force of the corresponding legal act. Proceeding from the special importance of relations between state and church, the Constitutional Agreement prevails over other legal acts, after the basic law of the country. Namely, the Constitutional Agreement prevails over law, organic law and international treaty of Georgia. Accordingly, a significant correction was made to the hierarchy of legal acts. Namely, while before constitutional changes, an international treaty was the act of supreme legal force after the Constitution and compliance with the Constitution represented one of the necessary preconditions for legitimacy of this act, after the changes, the necessity of compliance of an international treaty with the Constitutional Agreement was added to this provision (Article 6, paragraph 2).
Legal force of Constitutional Agreement is edetermined by an extrelemely complicated procedure of its adoption which is common for legal acts of superior legal force. According to the changes carried out in the Constitution of Georgia, the Constitutional Agreement with the Georgian Orthodox Church is concluded by the President of Georgia on behalf of the Georgian state and is approved by the Parliament by at least 3/5 of its members (Article 66, paragraph 11 and Article 73, paragraph 1, sub-paragraph “a1”).
An idea may arise, that attaching such high legal force to the Constitutional Agreement and establishment of its prevalence over an international treaty will lead to violation of human rights recognized by international legal norms on religion and confession and equality of other religious organizations.
In this respect, we consider it necessary to mention that despite its high legal force, the Constitutional Agreement still represents a legal act subordinate to the Constitution. Thus, it should fully comply with the requirements of the basic law of the country, including constitutional norms on freedom of religion and confession. At the same time, the demand of Article 9 of the Constitution is in force, which states that the Constitutional Agreement should fully comply with the universally recognized principles and norms of international law on human rights and fundamental freedoms. Otherwise, the Constitutional Agreement may become a legal act to be judged by the Constitutional Court. According to constitutional changes, the Constitutional Court of Georiga is authorized to make a decision on the issue of compliance of the Constitutional Agreement with the Constitution (Article 89, paragraph 1, sub-paragraphs “A” and “F”). Therefore, if a norm violating the fundamental human rights recognized by international law is established in the Constitutional Agreement, every person, whose rights are infringed, will be able to file a claim at the Constitutional Court to check the compliance of this norm of the Constitutional Agreement with the Constitution.
As we can see, protection of human rights in this area is guaranteed not only by the fact that full freedom of religion and confession is declared by the basic law of the country, but also by the possibility of court protection.
As a result of the above constitutional changes, the constitutional norms regulating the relations between state and church acquired a finalized form. The legal principles according to which lawmaking should be developed in this area were established at the level of the basic law of the country. The Constitution already provides the legal forms and mechanisms with the help of which the status of the Georgian Orthodox Church should be defined and relations with the state should be regulated.
These constitutional changes created a proper legislative basis for conclusion of the Constitutional Agreement between the State and the Church, which was carried out on October 14, 2002. The Constitutional Agreement was signed by the President of Georgia on behalf of the State and by the Catholicos-Patriarch of All Georgia on behalf of the Georgian Apostolic Autocephalous Orthodox Church in the Svetitskhoveli Patriarchal Church in Mtskheta. On October 17, 2002 the Holy Synod of the Georgian Orhodox Church and the Georgian Parliament approved the Constitutional Agreement between the Georgian State and the Georgian Apostolic Autocephalous Orthodox Church by the decree of October 22, 2002 (No. 1697-I s). The Constitutional Agreement became effective immediately upon approval by the Parliament and the Holy Synod (Article 12, paragraph 4 of the constitutional agreement).
In the Constitutional Agreement the Georgian Orthodox Church is recognized as a historically established, fully legitimate legal entity of public law, which carries out its activities according to norms of ecclesiastical (canonic) law, Constitution of Georgia, this agreement and the Georgian legislation (Article 1, paragraph 3). Thus, the state recognizes that the Orthodox Church is a historically existing entity of special function and significance for our country. Powers of the church in the cultural-educational, defense, justice, social protection areas are defined, orthodox churches, monasteries, land plots, church treasury protected by the state (preserved in museums, depositories) are declared as the property of the church in the Constitutional Agreement. At the same time, the state confirms the fact of inflicting material and moral damage to the church during 19-20th centuries, in the period of loss of state independence and undertakes to partially compensate the material damage. The State and the church are also empowered to conclude agreements in various areas of common interests, for the purpose of implementation of which corresponding acts are made.
The Constitutional Agreement is a strong legal basis for the Georgian Orthodox Church. Any changes and additions can be made to it only by mutual agreement of the State and the Church. At the same time, legal acts issued in contradiction to norms and principles of the Constitutional Agreement by state authorities will not have legal force. In this respect, it is correctly mentioned in legal literature that: “This Agreement is not a document granting rights by the State as the superior organization to an inferior organization. It represents an agreement of two equal legal entities on distribution of responsibility before citizens of their own country. Thus, changes can be made to it only upon approval by the supreme legislative authority of both countries – the Parliament of Georgia and the Holy Synod. Bilateral signatures are also required for a change, i..e. both the State, and the Church should support the change. Thus, willful act of the government towards the church will be legally avoided.”13
Such form of relations between the State and the Church is considered as one of the forms of “parallel attitude”, namely “system of equality” in scientific literature. According to Professor Panagiotis Boumis, “According to this system, two institutions – state and church are identified as mutually equivalent. Neither the state governs or supervises the church, nor the church applies the practice of governance or supervision towards the church. Limits of power of both institutions are established by an agreement concluded between them (Concordat)”14. Another type of “parallel attitude” between state and church is the “full delimitation system”, according to which, the state considers religion as a private matter, and the church – as a legal entity of private law. Under this system, the attitude of the state towards the church fluctuates between well-disposed neutrality and an expressly hostile position”.15The US is considered to be an exemplary country of “full delimitation system”. A special law on religious organizations is not adopted in this country. The attitude of the state to religion is defined by the First Amendment to the US Constitution (1791), which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”16Religious associations are given a status of legal entity of private law here. For legal relations, for instance, Catholic Church is established in the US in the form of a trust similar to a fund. Activities of religious associations and religious education are totally based on self-financing and donations. The US is distinguished by a loyal attitude to the Church.17
Full delimitation system is exercised in France as well. After breaking diplomatic relations with the Holy See in 1904, the regime of separation of state and church was restored in France by the law adopted on September 9, 1905, which is effective currently. According to the law, freedom of religion and confession is guaranteed, no religion should be legally recognized. The status of “recognized church” is annuled. Church is not reviewed as a public institution, it is a part of the private sector. Religious organizations act in the form of hieratic associations or cultural associations. The 1958 Constitution of France strengthened the policy of state neutrality towards religion at the level of the main law. Constitutional provisions will be restricted to the extent that to express loyalty to human rights protection, the Preamble refers to the 1789 Declaration “On Human and Citizen Rights” one of the main principles of which is freedom of religion. France is declared a secular republic. Equality of all citizens before law, regardless of their attitude to religion is ensured. The state respects all religions (Article one). Due to the above, it is noteworthy that the attitude of the state to religion is characterized in scientific literature as follows: “silence, separation policy of the Constitution, neutrality of the state and carefulness of legislation.”18
“Full delimitation system” was exercised during the first republic of Georgia (1918-1921), as well as during the Soviet period, however, as already mentioned, the Soviet state showed an expressly hostile attitude towards religion.
A system, totally different from the above mentioned relations between the state and the church, functions under conditions of recognition of this or that religion as an official, state religion, because when recognizing this or that religion as a state religion, we are not talking about independence of the church from the state, but on the contrary, the status of official religion is attached to this religion and a relevant religious organization becomes a constituent of state structure. Dominant religious associations – state churches – exert a significant influence on various areas of state and social life, affect state policy, define areas of educational activities, carry out some state functions (for example, regulation of family relations, executing justice on cases of certain categories etc.). Dogmas of state religion are recognized as the source of justice. State churches are financed from the state budget and enjoy various benefits.19
Currently, state religion is recognized in many countries of the world. Not to mention the Oriental countries where Islam is the most wide-spread state religion (for example, Saudi Arabia, Iran, Pakistan etc.), state religion and state churches also exist in those states where legal state-building was finalized long ago and human rights are properly protected, for example: the Anglican Church in the Great Britain, Catholic church in Portugal, Argentina, Ireland, Evangelical-Lutheran church in Sweden, Norway, Denmark, Iceland, Oriental-Orthodox Church in Greece, Bulgaria.
It is noteworthy that, as a rule, state religion in these countries is recognized not by common law, but by the Constitution. The main law defines the general principles of relations between the state and the church, and naturally, national normative acts and international treaties should be in compliance with those principles. For example, in Article 2 of the Constitution of Norway it is stated: “The Evangelical-Lutheran religion shall remain the official religion of the State. The inhabitants professing it are bound to bring up their children in the same”.20The Constitution of Greece begins with the following words: “In the name of the Holy and Consubstantial and Indivisible Trinity, the Fifth Revisionary Parliament of the Hellenes Resolves …”. In Article 3 it is stated: “The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ”, under Article 13 “Proselytism is prohibited”, Chapter three defines the “Regime of Aghion Oros (Mount Athos)” etc.21
When any religion is recognized as an official, state religion, the “system of subordinate dependence” is applied, which implies either subordination of state to church (Papocaesarism) or on the contrary, subordination of church to state (Caesaropapism).22The first form of this system of relations between state and church (Papocaesarism) mainly dominated in the church of the West, where medieval papacy tried to obtain a legal right to overthrow monarchs. Supporters of this system considered that the church had to take advantage over the state by force for the salvation of people. Crusaders, the inquisition also relied on this opinion and led to gross interference of popedom in political events of the western world.23A clear example of subordination of state to church is theocratic governance when as a rule, the head of the dominant religious association is the head of state at the same time. For example, the spiritual leader of the world catholics – the Pope – is the head of the state of Vatican at the same time. However, Vatican does not have a common Constitution, but state-legal issues are regulated by acts of constitutional significance. Out of them, the agreement made between the Holy See and the Kingdom of Italy on February 11, 192924 should be mentioned first of all, according to which absolute power and sovereign jurisdiction of the Holy See over Vatican (Article 3) are recognized. Vatican is governed by the Pope elected for life, who is considered as “holy and protected” (Article 8). The Pope as the head of the Catholic Church and the state, possesses absolute power. It is stated in the above agreement that “Italy recognizes Vatican City State under sovereignty of the Pope” (Article 26). Various state institutions and officials operate in the country: State Secretary, Collegium of Cardinals, Courts, but their powers are rather limited.25By the law “On Legal Sources”, dated June 27, 192926, the main legal source in force in Vatican is the Code of Canon Law and laws adopted by the Head of Church or on the basis of powers granted by him, as well as acts issued by competent authorities according to the procedure established by law (Article 1). Italian laws are used for resolution of issues not provided in these sources, provided that these laws do not contradict the Scripture, main principles of the Canon Law and the Concordat signed between Italy and the Holy See (Article 3).
Features of theocratic monarchy characterize Saudi Arabia as well, where the head of state – the King – not only performs religious functions of the main protector of sanctities of the Muslim world, but also represents the head of Wahhabi movement of Islam. The procedure of delegation of power to the King is preceded by consent of a narrow circle of highest religious authorities – Ulems and only after that, by the decision of members of the Royal Council, which consists of representatives of a large family of Saudists.
Modern Iran has many features of theocratic governance, where clergymen of Shiite religion possess great power. Under the Constitution of the Islamic Republic of Iran:27Islam, in particular, its Shiite movement, is recognized as the official religion of Iran (Article 12); Only Iranian fire-worshippers, Jews and Christians represent religious minorities (Article 13); The republican system of Islam is based on the principle, according to which the primary importance for implementation of objectives set before the Islamic Revolution of Iran is attached to religious persons and primarily, their leader – the highest spiritual authority (Article 2, paragraph 5); The President of the Republic is considered to be the highest official of the country only after the leader (Article 113); the leader defines the common policy of the system of the Iranian Islamic Republic and imposes supervision over the correctness of its implementation (Article 110, paragraphs one and two); the leader appoints or dismisses the highest officials of state power of the country, inter alia, signs the resolution on the appointment of the President of the Republic after he is elected by the people (Article 110, paragraphs 6 and 9); three independent power authorities exist in Iran: legislative, executive and judicial, which act in accordance with the Constitution, but under supervision of the Imam (Article 57).
The system of subordination of state to church is also used in Andorra, according to whose Constitution, co-governors of this country are the Bishop of Urgel (Spain) and the President of France (Article 43).28
Another form of the “system of subordination” of relations between state and church – system of subordination of church to state (Caesaropapism), as mentioned in scientific literature, was formed as a reaction to the papist way of thinking and hierocracy. Its peculiarity is that politocractic power strives to seize both state power and hierocracy. According to this system, the supreme organization of power is the state and each institution should be subordinate to it.29 That’s why this system functions in all those countries where “the church is subordinate to the state under law”. In these cases, “religious confessions are under direct control of the state, which interferes in the religious life of its subjects by its laws and administrative actions even in the case of absence of official religion, for the purpose of restriction of patronage of official religion, if such exists, as well as interference of religious organizations in social life.”30 To ensure this, the head of the state is the top church leader at the same time or the state governs the church through power authorities. Among such countries are, first of all, Great Britain, where starting from Henry VIII, the kings have been the leaders of the Anglican church at the same time. During the reign of King Henry VIII, the power of the Pope over the English Church was abolished and the highest royal power was declared over it by the Act of Supremacy (1534). In accordance with the ActofSubmission of the Clergy passed the same year, convocations had to obtain the king’s consent for adoption of laws. The ecclesiastical law of England which addresses the English Church (including its Canon Law) is viewed as an integral part of the English legislation. Changes can be made to it by the General Synod which has been the assignee of the Ecumenical Council under the 1919 Act. In line with clergymen, laity are also members of the General Synod, which means that laity can also participate in the adoption of ecclesiastical laws. In order for the legislative measure adopted by the Synod to become a complete law, it should be approved by both Chambers of the Parliament. Afterwards, it is required to obtain the royal sanction for promulgation of a new law. In this respect, it is mentioned in scientific literature, that “this is a formal act which recognizes the supreme governance of the Queen of England over the Church of England. Legal significance of this event is that the Queen is not advised to sanction a law which contradicts a wider concept of English Law”. It is possible that this right of the English monarch may really be of formal nature, as the English monarch has never exercised the right of veto since 1707, but “more contradictive restriction of the freedom of church is expressed by the monarch’s right to appoint archbishops and eparchial bishops of the Church of England, as advised by the Prime Minister”. It is also noteworthy that archbishops and bishops are members of the House of Lords as well.
As for other churches, for instance, the Roman Catholic Church, as well as protestant denominations and other confessions, a general law on charitable institutions, namely, legislation on charitable trusts, applies to them. As a rule, churches separated from the state have a form of voluntary association and their property is managed by fiduciaries which may be registered companies on the basis of common law. Such associations have no special status. Due to that, there is no official list of churches “recognized” by the state in the United Kingdom. At the same time, it should be mentioned that legal norms directed against followers of the Roman Catholic Church and aiming to ensure hereditary protestant possession of royal power remain in force in England. The Monarch must be a member of the English Church. One who becomes a catholic or marries a catholic, will be excluded from royal succession. It is also noteworthy that a permanent diplomatic representative of the Pope was accepted at the Diplomatic Corps several years ago. As mentioned in scientific literature, it was a phenomenon which would have been unimaginable in past decades. The United Kingdom does not have a written Constitution and therefore, there is no formal constitutional guarantee of freedom of religion, however, this loophole is closed to a certain extent by the European Convention on Human Rights, which became a part of the national law of England after approval by the Human Rights Act. Since then, the freedoms guaranteed by the Convention, including freedom of religion are protected by the Court of England which can declare this or that part of the English legislation as inconsistent with the Convention.31
The system of Caesaropapism between state and church functions not only under monarchical, but also under republican governance. As already mentioned, the dominant, primary religion in Greece is Christian Orthodoxy. From the legal point of view, this privilege means that Christian Orthodox religion is an official religion of the state of Greece. Unlike non-orthodox associations which are recognized as associations by the Civil Code, the Orthodox Church enjoys a different status. It represents a legal entity of public law in legal relations, together with its units. The attitude of the state towards Orthodox Church is special and facilitatory, which is not applied to other religious movements.
The theoretical basis of relations between the state of Greece and church is a developed form of Caesaropapism, which is referred to as “supremacy of state law” in Greek literature. According to the Constitution, state has a right to issue laws on all administrative issues related to the church even if they address the internal structure of the church. General state supervision over all religious associations is exercised by a special unit of the Ministry of National Education and Hieratic Issues – General Secretariat on Hieratic Issues. This unit includes departments, whose competence covers issues of religion, ecclesiastical education and religious teaching, as well as issues of other (non-Orthodox) religious associations. It is noteworthy that the competence of Different (non-Orthodox) Religion Department includes the issues of appointment, dismissal and official status of the Chief Rabbi of Greece, Chief Rabbis of Jewish communities and three Muslim Muftis of the Muslim minority of Western Thrace. The Ministry of Foreign Affairs is also responsible for religious issues within its competence. Departments of this Ministry are responsible for resolution of issues related to activities of the Orthodox, other Christian churches and orthodox-theological schools, ecclesiastical centers located beyond boundaries of Greece, activities of Orthodox Greek clergymen living abroad. Competence of the Ministry of Foreign Affairs also includes issues of civil governance of Mount Athos.
Metropolitan eparchies in Greece represent legal entities of public law. Archbishop is the chief administrator in province and holds the title of Metropolitan. Issues related to churches and eparchies are considered by the Metropolitan Council which consists of the judge, official of the Ministry of Finance, two priests and an eparchy advisor. Official documents on election of the Archbishop and the Metropolitan are submitted to the Ministry of Education and Hieratic Issues, which arranges promulgation of the Presidential Decree. Congregational churchesas well as monasteries are legal entities of public law. They are established under the Presidential Decree. There is no church tax in Greece. The state nearly entirely undertakes to finance the primary church. At the same time, the state covers all expenses of education of orthodox church servants. Teachers of theological academies are equal to public officials. The state pays salaries to prelates and priests serving in congregational churches, as well as salaries to deacons, preachers and laity serving in the Orthodox Church. These persons are paid pensions by the state. Priests serving in the army and police forces are awarded the rank of officer and they are paid salary or pension due to their rank.32As we can see, church is nearly completely governmentalized. Only Mount Athos is an exception, which enjoys autonomy and is governed by clergymen according to the Constitution of Greece (Article 105).
Certain signs of Caesaropapism characterized the relations between the State and the Church established in Georgia as a result of the church reform carried out by the Georgian King David Aghmashenebeli in the 12th century. After the Ruis-Urbnisi EcclesiasticCouncil(1104) convoked by David Aghmashenebeli for eradication of disorders spread in the church in that period and carrying out a new ecclesiastical policy, it was decided to bring the most influential clergy member to state governance and thus, draw the church closer to royal power. For this purpose, David Aghmashenebeli combined two positions – Chqondideli and Mtsignobartukhutsesi. Since then, the high church official – Archbishop of Chqondidi was appointed as Mtsignobartukhutsesi, which was considered to be the Chief Vizier of the King.33In this respect, Ivane Javakhishvili mentions that Mtsignobartukhutsesi-Chqondideli, as the Archbishop and the Vizier, united ecclesiastical and secular power. Therefore, Mtsignobartukhutsesi was in charge of all issues related to churches and monasteries, clergy and nuns.34According to the historian of David Aghmashenebeli about that period, from now “monasteries and eparchies and all churches will accept the rule and order of praying and all church rules as the correct law, fully perfect and arranged, the order of prayer and fasting”.35Though Javakhishvili considers this information to be exaggerated but he notes that “as the state government was entitled to interfere into ecclesiastical issues in those times, it could possibly implement this right through the Mtsignobartukhutsesi. Only he was the chief priest and clergyman among viziers and it was more appropriate for him, as the sovereign of the kingdom, to take care about such issues than others”36
Thus, significant changes occurred in relations of the state and the church in terms of increase of rights of secular power in the ecclesiastical area in Georgia from the early 12th century. Under conditions when according to church dogmas of that period, the King could not formally interfere into resolution of church issues, by introducing the position of Mtsignobartukhutsesi-Chkondideli, the secular power obtained a real influence over church.
The presented classification of relations of state and church is not the only one, but at the same time, it is the most wide-spread in scientific literature. For example, together with the above two systems of relations of state and church, a so-called “coordination system”37is separately considered. However, in our opinion, its context is covered by the two previous main systems to a certain extent, therefore, we do not consider that its independent review will have any cognitive significance.
As we can see, systems of relations of church and state are rather diverse and are less dependent on the development level of the country. Relations of state and church in this or that country are significantly influenced by historic, political, ethnic factors, traditions etc. Any or several of these factors play a decisive role in the formation of system of relations of state and church in a specific country. Therefore, the form of relations of state and church which is successfully applied in one country, may appear to be totally unsuitable for a country with different culture and traditions.
At the same time, it should be mentioned that a differentiated approach to different religions by the state, for example, support of any religious organizations, is not an indicator of violation of “the equality principle and discrimination. It is mentioned in scholarly literature that “a different approach does not necessarily mean violation of the equality principle,when a reasonable basis for such differentiation exists … attitude to people having different views, considering their differences is a demonstration of deep respect, rather than equally placing everybody on the Procrustean bed”.38In this respect, the definition of Article 14 of the European Convention on Human Rights regarding prohibition of discrimination by the European Court of Human Rights is noteworthy, according to which, discrimination takes place not only when the state differenty treats persons being in equal, similar conditions without reasonable justification, but also when the state, does not differently treat the persons being in different conditions, without objective and reasonable grounds.39Objective grounds for a different attitude to this or that religion by the state may be the scale of dissemination of this religion in the country, the role played by this religion in the history of this country, the agreement concluded between a state and a religious association (Concordat) etc. For example, in the case “Iglesia Bautista “El Salvador” and Ortega Maratilla v. Spain”40, the European Commission on Human Rights established that the tax system which gave the Catholic church an advantage over protestant churches, did not violate Articles 9 and 14 of the European Convention on Human Rights. The Catholic Church was exempted from real property tax in Spain. The plaintiffs – the protestant church and the protestant leader – also demanded exemption from this tax, but they were rejected on grounds that concession of the state towards the Catholic Church was predetermined by the Concordat concluded between Spain and the Catholic Church. The state is empowered to exempt a church or a religious organization from tax payment without violation of Article 14 of the European Convention on Human Rights, if there is “an objective and justified explanation” of such different attitude. The Commission declared that in this specific case, based on the existence of the Concordat, the state had such explanation. As no such agreement (Concordat) was made with the Protestant church, accordingly, no discrimination had taken place towards the protestant church.
Therefore, proceeding from the above, we can conclude that granting a certain privilege to any religious organization by the state cannot be considered to be a discriminatory treatment of other religious organizations, violation of their equality principle, if objective and reasonable grounds exist for such different attitude. In our opinion, the main thing here is that freedom of religion and confession should not be restricted. So it is rather significant to clarify whether this or that form of relations of state and church affects the level of freedom of religion. It is mentioned in scientific literature, that in a dilettantish opinion, there is a directly proportional connection between freedom of religion and the level of identification of state and church. In particular, maximum freedom of religion is achieved in the case of full delimitation (non-identification) of state and church and on the contrary, there is no freedom of religion in the case of maximum identification of state and church (established church). This opinion is considered to be dilettantish as such approach is superficial and simplifies the issue under study.41The point is that this or that form of relations of state and church neither implies a low level of freedom of religion nor predetermines the growth of freedom of religion. For example, in the Soviet Union, when the principle of delimitation of state and church was fully applied, this did not contribute to ensuring freedom of religion at all. On the contrary, aggressive delimitation of state and church grew into confrontration and religious persecution. On the other hand, in Great Britain, where an established church is maintained and accordingly, the level of identification of state and church is rather high, equal treatment of all confessions is ensured and the level of freedom of religion is high. Therefore, as it seems, it is not the form of relations of state and church that determines the level of freedom of religion, but the political regime of the given country. At the same time, for the sake of objectivity, we should agree with the view that the two extreme forms of relations of state and church – full delimitation and strong identification – contain an increased risk of the restriction of freedom of religion growing into religious strife and persecution.42
It is also considered in scholarly literature that the best conditions for achievement of high level of freedom of religion are created during the regime of mutual cooperation of state and church and supported churches. Georgia is also on the list of the countries where such regimes prevail, along with Spain, Italy, Poland, Germany and several South American countries. Though the dominant church in these countries is not formally recognized as an official religion, they confirm that a corresponding church occupies a special place in the culture of the country. A supported church enjoys a special recognition, the state cooperates with it by various means, on the basis of a special agreement (Concordat), however, other religious groups also enjoy equal protection under the Constitution.43
The overview of types of mutual attitude of state and church, to which so much space was dedicated in this paper, is useful for better understanding of the appropriateness and correctness of the model of relations of state and church chosen by Georgia, on the basis of a comparative analysis. Considering all the above, it is safe to say that an absolutely correct legal form of relations between the Georgian state and the Orthodox Church has been found by introducing the concept of Constitutional Agreement. This form of relations ensures independence of the church, protection of its sovereign rights, on the one hand, and grants the church all rights necessary for performance of functions of uniter of the nation and other functions traditionally common for it, on the other hand. At the same time, interference of the state in church affairs (and vise versa) is excluded. Relations of state and church are based on principles of equality and cooperation of the parties. It is expressly stated in the Constitutional Agreement: “The State and the Church confirm their readiness for cooperation for the well-being of the population of the Country in accordance with the principle of reciprocal sovereignty” (Article one, paragraph one).
Together with defining the status of the Georgian Orthodox Church, it was also necessary to resolve the issues of attitude of the state towards other religious organizations operating in Georgia and their legal status to make the legislation on religious issues complete. In this respect, the following question should be answered first of all: was it possible to regulate the relations of the state with other religious organizations by an agreement, similar to the Georgian Orthodox Church? When answering this question, two circumstances should be taken into consideration in our opinion: organizational-legal and historic circumstances.
The Georgian Orthodox Church is Autocephalous. Unlike other religious organizations operating in Georgia, it is not a part of the church located beyond boundaries of Georgia, but it is represented in the organizationally completed form in Georgia. Other confessions are only structural units of religious organizations located beyond boundaries of Georgia and accordingly, they are subordinated to their centers. Their possibility of independent action is restricted. At the same time, as compared to the Orthodox Church, their role in the history of Georgia is absolutely different. Therefore, there is no legal or historic ground for concluding a Constitutional Agreement with them.
As the Civil Code of Georgia recognized religious organizations as legal entities of public law, and, as already mentioned, it was impossible to apply the framework law “On Legal Entities of Public Law” to religious organizations, their legal status had to be defined by a special law on religious associations. Unfortunately, such law was not adopted, which created a significant loophole in the legal regulation of religious associations. Suffice it to say that due to the non-existence of a special law, religious organizations could not be formed as legal entities of public law and accordingly, could not undergo state registration. The Code of Administrative Offences of Georgia considered avoiding registration of religious associations as an administrative offence and stipulated imposition of an administrative sanction on the manager of this association (Article 199). Some religious associations were registered as a non-entrepreneurial legal entity – union, to acquire the status of a legal entity, however, Tbilisi District Court (by resolution of June 26, 2000) and Supreme Court of Georgia (by resolution of February 22, 2001) cancelled their registration on the grounds that “until the procedure of creation, organization and activities of religious organizations as legal entities of public law has not been stipulated by law, according to Article 1509, part I, sub-paragraph “E” of the Civil Code of Georgia, it is inadmissible to use organizational-legal forms of legal entities of private law.”44In our opinion, the courts of superior jurisdiction made a correct resolution, as under the legislation in force a that time, religious associations could not be registered as legal entities of private law.
In order to improve this unclear situation and eliminate the legislative loophole, instead of adoption of a special law on religious associations, Article 1509 of the Civil Code was amended in 2005, as a result of which religious organizations were removed from the list of legal entities of public law45. The same year, an amendment was made to the Code of Administrative Offences of Georgia and liability for avoiding registration of religious associations was cancelled.46The Civil Code of Georgia was amended again in the following years, resulting in annullment of special norms on union and foundation47and introduction of the institution of the branch (representative office) of a non-entrepreneurial (non-commercial) legal entity of a foreign country.48
Apparently, the law-maker hoped that these amendments would allow religious organizations to be registered as non-entrepreneurial (non-commercial) legal entities or branches (representative offices) of a non-entrepreneurial (non-commercial) legal entity of a foreign country. But the expectations were not met. Only several religious organizations (for example, the Pentecostal Church, the Salvation Army, Seventh-Day Adventists etc.) were registered as non-entrepreneurial (non-commercial) legal entities. As for traditional religious associations (for example, Catholic Church, Muslim Community, Armenian Apostolic Church, Jewish Community etc.), these rejected the offered status and did not undergo registration. As it transpired, the reason for that was that they wished to obtain a legal status equal to the Georgian Orthodox Church, i.e. to become legal entities of public law, not private law. It was unacceptable for them to be registered as non-entrepreneurial (non-commercial) legal entities like non-governmental organizations.49While requiring this, these religious organizations did not consider that under legislation of those countries where they prevail (for example, Vatican, Armenia, Azerbaijan etc.), Orthodox Church and other religious organizations do not enjoy equal status and rights. For example, under the law of the Republic of Armenia “On Freedom of Conscience and Religious Organizations”, dated June 17, 1991 (3P-0333-1): the Armenian Apostolic Church is recognized as the national church of the Armenian people; a long list of missions is defined, whose implementation represents the privilege of the national church; The state is obliged to protect the Armenian Apostolic Church beyond the boundaries of the Republic of Armenia, as the national church; Proselytism is prohibited etc. As for followers of other confessions, they have to meet a number of requirements stipulated by this law to be considered as religious organizations and accordingly, obtain the status of a legal entity, in particular: their doctrine must be based on any historic canonized holy book; by their religion, they must be included in the system of the modern system of religious-ecclesiastical communities of the world; the number of believers must not be less than two hundred etc. At the same time and most importantly, a religious organization whose spiritual center is beyond the Republic of Armenia, can not be financed by this center.
It is not our task to identify and assess the legal status of the Armenian Apostolic Church in the Republic of Armenia. As it seems, such attitude of Armenian law-makers to their national church has an objective ground. But in this respect, it should also be mentioned that when a religious organization enjoying such status and privileges in its country demands to obtain a status equal to the dominant religious organization located in another country, we do not think it is fair. That’s why the dualistic approach of Georgian law-makers to identification of legal state of religious organizations which is so common for modern developed countries should not have been a hindering factor for traditional religious organizations in obtaining a status different from the Georgian Apostolic Orthodox Church.
Despite this, the period when traditional religious organizations were without a status, which was caused only by their position, continued for quite a long time. While looking for a way out of the obtaining situation, the Georgian government made a totally unexpected step.
On July 6, 2011 amendments were made to Article 1509 of the Civil Code of Georgia for the umpteenth time.50By this amendment, the law-maker first of all, corrected the previously made omission when the legal entity of public law recognized by the Constitutional Agreement of Georgia was included in the list of legal entities of public law without specifying its name, i.e. it was not mentioned that the Georgian Orthodox Church was implied here. As the Constitution of Georgia stipulated conclusion of the Constitutional Agreement by the state only with the Georgian Orthodox Church and only the Georgian Orthodox Church was recognized as the legal entity of public law by the Constitutional Agreement, the law-maker considered these provisions of the Constitution and wrote in the new version of sub-paragraph “F” of part one of Article 1509 that a legal entity of public law is “the legal entity of public law recognized by the Constitution of Georgia – the Georgian Apostolic Autocephalous Orthodox Church”. It was a formal arrangement of the issue. It was essential that a reference to a new Article 15091 was made in Article 1509 of the Civil Code, according to which the religious associations stipulated in this new Article are also considered to be legal entities of public law. Article 15091 itself, whose title is “Procedure of Registration of Religious Associations” allows religious associations to be registered as legal entities of public law (part one), provided that they have historic li