Religious Freedom and Legal Framework in Spain
Basic or Common Fonts
Apply equally to all religious phenomena within society. Underlie the peculiar rules that apply.
The Constitution of 1978 is the foundation of all national laws. Its precepts play a triple role: they are rules integrated, interpreted, and inspiring the legal system. In the case of fundamental rights, constitutional rules are fully valid and are directly enforceable by the courts and tribunals. The key items are 1, 9, 10, 14, and 16. They state the higher values of law, the principal reports of Spanish ecclesiastical law and valuation, protection, and interpretation of the principles.
Community law occupies an intermediate position between domestic law and international law. The rules are directly applicable to Community law. There are common rules adopted by the Community institutions in our discipline. We can distinguish:
A primary legislative level, the ECA, the TEU, and the Treaty of Amsterdam.
In the area of secondary legislation, there are different resolutions, the most important are the European Parliament resolution on cults (May 22, 1984), the Council regulation on marriage (May 29, 2000), and the Charter of Fundamental Rights EU 2000.
Declarations and international conventions protecting human rights. The route of entry is through art. 10.2 CE, which provides that the rules relating to fundamental rights and freedoms that the CE shall be construed in accordance with the Universal Declaration of Human Rights Treaties of religious freedom in accordance with international agreements thereon ratified by Spain.
Non-binding:
At the universal level (UN) Universal Declaration of Human Rights December 10, 1948 (Article 18, freedom of thought, conscience, and religion), Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or in the convictions of 25 November 1981.
In the framework of the Organization for Security and Cooperation in Europe (OSCE): Final Act of the Helsinki Conference 1975, Final Act of the Madrid conference of 1983, and the Final Act of the 1989 Vienna conference.
With binding force and control functions and protection:
At the universal level (UN) covenants of December 19, 1966, to develop the universal declaration of human rights. The international covenant on civil and political rights and the international covenant on economic, social, and cultural rights.
These create two international covenants for the protection: the human rights committee and the committee of economic, social, and cultural rights.
In Europe, the Council of Europe has proclaimed the convention for the protection of the rights and fundamental freedoms of November 4, 1950. By this agreement establishing the European Court of Human Rights.
LO 7 / 1980 of July 5 about religious liberty. Art. 81 EC offers a descriptive concept which is a LO: those relating to the development of fundamental rights and public freedoms. Approval, amendment, or repeal shall require an absolute majority in Parliament. This Act develops art. 16 EC, regulates its content and the forms and conditions of its use. The key features are:
Intended to be legal means applicable to all religious denominations, although the Catholic Church on some issues is not subject to it.
In its structure, there are two parts: art. 1 to 4 expresses the essence of religious freedom, and art. 5 to 8 sets out the conditions for the state’s relations with the confessions.
The scope is all the religious events in Spain. Expressly excluded humanistic activities, psychological and parapsychological.
It has been further developed by the registration of religious bodies and from the advisory committee of religious freedom.
Custom, law, and general principles of law.
Unusual or Typical Sources
More features are the rules of ecclesiastical law. Are rules applicable to certain religious groups: those that have signed agreements with the state. Have a constitutional basis in art. 16.3, the principle of cooperation.
Under this principle can sign two types of agreements in different ways depending on the approval:
The international route, established in art. 93 to 96 CE. Agreements signed with the Holy See.
The internal road: Established in art. 7 LOLR. Agreements signed under that article and autonomic arrangements.
Agreements with the Holy See
Its terminology is quite varied depending on the country. The difference between the concordat and the agreement is that the former is more global and the second more specific.
In its legal nature are considered international treaties. The reasons are:
The recognition of international legal personality of the Holy See.
The processing through diplomatic channels in the presence of three phases:
Diplomatic negotiations between
Formal signing of the instruments
Ratification or exchange of documents ministers plenipotentiary.
Compliance with art. 93 to 96 CE: referring to the authorization of the courts to conclude international treaties.
The unanimous doctrine of TS and TC.
Effect of agreements: to consider international treaties shall apply the general principles of art. CE 96.1 and 1.5 CC. After its publication in the Official Gazette as part of our domestic.
Content in any treaty differentiate two types of rules:
The directly applicable
The pragmatic need for further development.
Extinction. We apply the principle of pacta sunt servanda. It can extinguish: By mutual agreement / For reasons set out in the same agreement / For violations of the agreement
For radical change in society that the agreement stipulated.
Agreements According to Art. 7 LOLR
Its foundation is legal art. 16.3 EC and Art. 7 LOLR.
The subjects of these agreements:
The Spanish government, through the government, and this, in turn, of the advisory committee of the LR.
Religious organizations, churches, denominations, communities, and associations.
The requirements of religious institutions are:
Recognized as having legal personality after civil registration of religious entities.
That has deeply rooted in Spain. The entity must have a geographic and / or historical interest and a number of believers.
Have a recognized root. These entities are recognized:
FEREDE – Protestant, 1985. + FCIE – Judaism, Islam + 1985 + The Church of Jesus Christ of Latter-day Saints – Mormons, 2003
Jehovah’s Witnesses, 2006.
Legal nature: it is complex and not peaceful in the doctrine for its novelty and by the proceedings. It is arguable that are public business law, and even special laws enforced. Presents peculiarities in their establishment, effectiveness, and development.
In the enforcement phase is an instrument of legislative creation. Is a prerequisite before the law.
In the legislative phase, is a means through which the agreement becomes part of Spanish law.
The recipients are the churches who are included in the registration of religious entities forming part of or incorporated subsequently to the corresponding federation.
These agreements have a direct effect, come into force on the day following its publication.