Freedom of Religious Association: The Right of Religious Organizations to Obtain Legal Entity Status under European Convention
Lehnhof, Lance S., Brigham Young University Law Review
For centuries religious organizations, and particularly new religious organizations, have struggled to gain recognition as legitimate churches and to maintain the status of legal entities in European states.1 Indeed, the history of almost all religious organizations, and certainly of all the major religions in Europe (i.e., Judaism, Christianity [Catholicism and Protestantism generally, as well as multiple individual sects], and Islam) includes a period of persecution and illegitimacy in their infancies. In a more modern context, one scholar has suggested that each major religion undergoes a process of being a "new" religion, with the attendant difficulties of attaining legitimacy, before slipping slowly into the societal mainstream.2 This initial period of infancy-the "dangerous sect stage"-often includes the ominous obstacle of obtaining legal entity status. Since the inability to obtain legal entity status often entails limitations or prohibitions on proselytism, many new religious movements are never able to mount the momentum to graduate from dangerous sect to legitimate religion.
I. THE RIGHT OF RELIGIOUS ORGANIZATIONS TO MAINTAIN A LEGAL ENTITY: AN INTRODUCTION
In the past few years, the international human rights debate has given increased attention to the importance of legal entity status for all types of organizations. The European Court of Human Rights ("European Court") in particular has made significant strides in recognizing that in order for the freedoms of association and religion-- guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention" or "Convention")3-to be meaningful, they must include a right to maintain legal entity status.4 The importance of legal entity status in our increasingly legalistic and bureaucratic world is clear; effective action in this modern setting is difficult without the ability to act collectively with legal personality. Such basic necessities as leasing space, collecting contributions, conducting business with others, producing and distributing materials, obtaining permits and licenses, and participating in political and legal processes are difficult, if not impossible, in most countries without official entity status. Furthermore, legal entity status is particularly important as organizations confront opposition groups, media organizations, and complex bureaucratic states.5
These same concerns and obstacles apply to religious organizations, but with even more gravity. While perhaps not as blatantly discriminatory and prejudicial as other forms of open hostility or persecution of religious belief or practice, denial of legal entity status-- either through overly burdensome registration requirements, discriminatory application of registration procedures, or explicit denial or revocation of registered status-has a significant impact on a religious organization's ability to manifest its religious beliefs. In many countries, a religious community without legal entity status has difficulty renting or owning property to use for religious services, collecting donations, distributing literature and materials, receiving tax benefits, and proselytizing.
Current examples of this struggle for legal entity status by religious groups in Europe are acutely obvious in Russia,6 Ukraine,7 Bulgaria,8 Slovak Republic,9 Uzbekistan,10 and France,11 to name but a few. Unfortunately it appears that despite a promising wave of international documents declaring the immutability of religious freedom, an increasing number of European states are also simultaneously tightening the noose on new religious movements by imposing increasingly strict restrictions on registration of legal entities, visa issuances, and proselytism.12 While these examples indicate an increase in governmental regulation of religious entities in some areas of Europe, it is certainly not a problem of recent origin, as governments have historically used the power to grant and deny legal entity status as a means of favoring majority religions and dissolving or denying legal entity status to minority religious groups. …