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The Committee on Church Property K 3/09

The lack of guidelines in the Act on Relations Between the State and the Roman Catholic Church, as regards the content of a regulation mentioned in the Act, is inconsistent with the Constitution.

At the hearings on 31 January, 18 May and 8 June 2011, the Constitutional Tribunal (full bench) considered an application submitted by a group of Sejm Deputies with regard to the Committee on Church Property.

In the judgment of 8 June 2011, the Constitutional Tribunal adjudicated that: 
- Article 63(9) of the Act on relations between the State and the Roman Catholic Church is inconsistent with Article 92(1) of the Constitution as well as is not inconsistent with Article 216(2) of the Constitution.
- Article 70a(1) and (2) the Act on relations between the State and the Roman Catholic Church is consistent with Article 25(1) of the Constitution as well as is not inconsistent with Article 25(2) of the Constitution. As to the remainder, the Tribunal discontinued the proceedings.

Dissenting opinions were submitted by the following Judges of the Constitutional Tribunal: Adam Jamróz, Marek Kotlinowski and Sławomira Wronkowska-Jaśkiewicz.

The amendment of 16 December 2010 resulted in the formal deletion of certain provisions of the Act on relations between the State and the Roman Catholic Church, including Article 62 and Article 63(8) of the Act. Therefore, the Constitutional Tribunal discontinued the proceedings within that scope, on the grounds that the provisions were no longer binding and that there was no necessity to issue a judgment to protect constitutional rights and freedoms.

Analysing substantive issues, the Tribunal stated that Article 63(9) of the Act on relations between the State and the Roman Catholic Church met the requirements ratione materiae and ratione personae for issuing a regulation.

As regards the statutory authorisation from Article 63(9) of the Act, the Constitutional Tribunal did not find guidelines as to the content of the regulation. Also, from the entirety of provisions of the Act on relations between the State and the Roman Catholic Church, it is not possible to derive guidelines as to the way the content of the regulation should be regulated. The mere statement that the Council of Ministers shall specify the property which may be subject to regulatory proceedings does not determine what criteria it should apply when specifying a replacement property in regulatory proceedings.

The Constitutional Tribunal pointed out that the requirement to include all essential elements of a given law directly in a statute is linked with the prohibition against regulating them in a regulation as a legal act of a lower rank. This primarily regards matters concerning the individual's rights and freedoms, or the activity of public authorities which has legal effects with regard to citizens.

The Tribunal indicated that a possibility to provide a replacement property in regulatory proceedings directly ensued from the Act (Article 63(1)(2) of the Act). The Regulation of the Council of Ministers of 21 December 1990, which concerns the exclusion of replacement property or the imposition of the obligation to pay compensation to church legal entities, elaborates on the Act. The fact that the legislator had no criteria in the form of guidelines which would provide guidance for solutions led to the situation that his freedom in drafting the regulation was too broad. The provision which grants authorisation to issue the regulation does not meet constitutional requirements, which made it possible to regulate an essential issue - from the point of view of regulatory proceedings - in a regulation.

The Council of Ministers gained the possibility to regulate the issue which was vital from the point of view of the Act on relations between the State and the Roman Catholic Church, which should be included in the said Act, and not in an implementing act.

The Constitutional Tribunal stated that Article 70a(1)-(2) of the Act on relations between the State and the Roman Catholic Church was aimed at compensating the damage caused by the change of the borders of the Republic of Poland. After the WW II, a substantial part of immovable property owned by church legal entities remained outside the Polish borders.

The principle of equal rights of churches and other religious organisations does not imply identical treatment of all religious organisations. It constitutes a guarantee that organs of public authority will create a legal framework which would make it possible to implement that principle, depending on the characteristics of particular churches and other religious organisations.

Legal differences may result from actual differences among churches and other religious organisations. The principle of equal rights does not create expectations of attaining actual equality. In the view of the Tribunal, where there are differences among churches and other religious organisations, those entities should be treated differently.

The differences among churches and other religious organisations may stem from the differences in the actual number of followers and the extent to which particular communities are well-established in the history of the state.

The Constitutional Tribunal pointed out that the allegation of unequal treatment of churches and other religious organisations, as regards immovable property in post-WW II western and northern territories of Poland, was the object of consideration in the judgment of the Constitutional Tribunal in the case K 13/02. The Tribunal concluded then that the law ensured the equal protection of property rights in the case of all churches and other religious organisations.

At present, none of the statutes regulating issues related to the immovable property of churches and other religious organisations does not provide for a possibility to return the ownership of the immovable property nationalised in the post-WW II western and northern territories of Poland to churches.

However, the law provides for a possibility of acquiring property rights in those territories in the form of transfer of the ownership of immovable property or part thereof, where the said transfer is to serve certain purposes (conducting religious worship, carrying out educational activities, providing charity care, establishing or expanding an agricultural holding of a church legal entity).

The Constitutional Tribunal pointed out that it was not true that the Roman Catholic Church was the only entity which was given the possibility of acquiring ownership in the post-WW II western and northern territories of Poland.

The Tribunal pointed out that the solutions put forward in the statutes about relations between the State and churches as well as other religious organisations does not regulate, in a unified way for all churches and other religious organisations, the issue of acquiring ownership in the post-WW II western and northern territories of Poland. However, such a state of affairs is not tantamount to the infringement of the principle of equal rights of churches and other religious organisations.

The Constitutional Tribunal drew attention to the fact that the statutes regulating the status of particular churches and other religious organisations had been enacted on the basis of agreements concluded by the representatives of the Council of Ministers and the representatives of those churches or other religious organisations. When drafting the statutes concerning religious matters, the legislator took into consideration historical determinants, the number of followers as well as the structure and scope of activity in the case of particular churches and other religious organisations.

It should be stated that, in the case of some other churches and religious organisations, the legislator provided for a possibility of acquiring the agricultural immovable property of the State Treasury. This was admitted by the applicants themselves. The differences in procedures and criteria for granting such property stem from the unique character of a given church or religious organisation. Such differentiation falls within the scope of Article 25 of the Constitution.

The Constitutional Tribunal stated that Article 70a(1)-(2) of the Act on relations between the State and the Roman Catholic Church is consistent with the principle of equal rights of churches and other religious organisations.

In the view of the Tribunal, the argument that granting property by the legislator infringes on the principle of the state's neutrality in matters of religion, and has an impact on dissemination of faith, is not justified. There is no close causal relation between the management of property and Article 70a(1)-(2) on the one hand, and the state's impact on the shaping of worldviews on the other. The allegation is inadequate to the indicated higher-level norm for review.

Since certain provisions of the Act on relations between the State and the Roman Catholic Church had been deleted by the Act of 16 December 2010 and part of the application had been withdrawn, as well as due to the argumentation presented by the applicant at the hearing, the Constitutional Tribunal discontinued the proceedings within the scope arising from the deletion of certain provisions (Article 62 and Article 63(8)) as well as from the withdrawal of the application (Article 61(1)-(3)).

The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Mirosław Granat.

The judgment is final and its operative part shall be published in the Journal of Laws.