The Belgrade Centre for Human Rights expresses its concern regarding the Draft Law on Religious Freedom, Churches, Religious Communities and Religious Associations (Draft Law on Religious Freedom), presented by the Government of the Republic of Serbia. The main purpose of this kind of law in a modern civil society should be a recognition of the principle of secular state, the protection of religious freedom and tolerance and equality between all of the religious communities within state borders, but a great part of the text of this Draft directly contradicts those principles. Its adoption and implementation may lead to violations of the religious freedoms protected by the European Convention for Protection of Human Rights (which was ratified by Serbia and Montenegro in April 2004). It is reasonable to expect that numerous individual complaints could be submitted to the European Court for Human Rights as a result of certain provisions of this Draft. The Draft Law on Religious Freedom resembles the charters of medieval rulers more than modern law. From its spirit, terminology and actual provisions it is evident that the text has been written under the influence of the Constitution of the Kingdom of Serbs, Croats and Slovenes, which has not been in force for 73 years. The language of the Draft is conspicuously archaic and Christian; it adopts the terminology and orthography of just one church in Serbia – the Serbian Orthodox Church. This Church enjoys privileged status in the Draft.
The Centre reminds the Government that the ratification of the European Convention represents an obligation to bring the Serbian legal system up to European standards, not to revert it to the last century. This Draft gives clerics even more privileges than they enjoyed eighty years ago. For example, it contains a provision granting immunity for priests for crimes they commit during their service. In response to criticism of this provision because it gives priests the opportunity to use hate speech during their preaching, the Minister of Religious Affairs explained that this provision is subordinate to the restrictions on spreading prejudices and religious intolerance. However, the immunity provision cannot be subordinated to this restriction, simply because of the basic principle lex specialis derogat lex generalis, and of the nature of the institution of immunity.
It is not clear why the Government has reinstated a category of “religious associations” into the Serbian legal system after more then 60 years. Religious associations are legally and factually in an inferior position to other churches and religious communities. The explanation of the Minister is that the religious communities, which have been named religious associations by this Draft Law are not recognized even by the World Church Council in Geneva. Is Serbia a member of the World Church Council or the Council of Europe? Should its politics be influenced by the former or the latter?
The Minister of Religious Affairs says that religious associations, churches, and religious communities are equally treated by this Draft Law. However, religious associations could be restricted if their doctrine violates “feelings” and “interests” of some of the “traditional” churches and religious communities. Is that equality in practice? Is it equality to prohibit the regular public religious education classes provided by religious associations, while teaching religious education of the “traditional” communities is on the curriculum of public schools? In addition, the Draft Law proscribes that public institutions are obliged to fulfil the requests of churches and religious communities to carry out religious services and ceremonies on the premises of those institutions, regardless of the religious feelings of the employees. This directly contradicts international standards of religious freedom.
All of the above could lead to numerous submissions of individual complaints to the ECHR. It is reasonable to believe that the Court will find provisions of the Draft Law violate religious freedom and award indemnity to the applicants. The state will be obliged to cover those expenses.
The state budget will already be burdened by expenses for the retirement fund for the clerics of the seven privileged religious communities, including the monks! It will also be burdened by the cost of the upkeep of the Serbian Orthodox monasteries, which it pays for exclusively regardless of their objective value as a cultural monument) and by many other provisions which grant traditional churches and religious communities the status of public institutions although it should not be the case in a multicultural society.
The Belgrade Centre for Human Rights believes that the Government should pay particular attention to the regulation of religious freedom. It is important to bear in mind that this includes not only the prohibition of unnecessary restrictions of religious freedom, but also the need for equal treatment between all religious communities. The obligation to act in accordance with the European standards should not be the only reason for this. A sound law on Religious Freedom should be a part of solid foundations in building a modern democratic society. The Belgrade Centre wants to believe that this is the main goal of Serbian Government.
