Religious Freedom and Organizations: Legal Framework in Spain

Posted on Dec 8, 2024 in Law & Jurisprudence

Constitutional Guarantees

The Spanish Constitution (EC) protects religious freedom through several guarantees:

  • Article 53.1 EC: Requires a law to regulate the right to religious freedom.
  • Article 53.2 EC: Provides for preferred ordinary and summary protection, and special constitutional protection.
  • Article 54 EC: Establishes the Ombudsman.
  • Article 81 EC: Requires an organic law for the development of the essential content of the right to religious freedom.
  • Article 161.1 EC: Provides special guardianship through the unconstitutionality appeal.

Internal Protection

Penal Code 522-526

These articles address religious discrimination, classifying it according to the protected legal interest:

  • Articles 522-523: Define crimes against freedom of religion, requiring the existence of violence, intimidation, or illegitimate pressure.
  • Article 523: Protects registered religious confessions, with aggravated sentences if disruptions occur in places of worship.
  • Articles 524-525: Address crimes against religious feelings (524: desecration).

Other relevant articles include:

  • Article 22.4
  • Article 510
  • Articles 511, 515

Administrative Supervision

The police ensure that religious events are carried out peacefully, recognizing freedom of expression, the right to information, and religious festivities.

Protection of Employment

Labor discrimination based on religion is punishable.

Internal Protection: Executive and Administrative

Structured within the Justice and Foreign Ministries, the government organizes and directs policy regarding religious matters. Specifically, the Secretariat of State for Justice, through the General Management of Religious Affairs, handles the registration of religious organizations, the Religious Liberty Advisory Commission, and the General Directorate of Registers and Notaries.

Internal Protection: Judicial Protection

Article 4 of the Organic Law on Religious Freedom (LOLLR) states that the rights recognized in this law shall be protected by ordinary courts and through constitutional protection against the Constitutional Court (TC). The TC can protect religious freedom through appeals, questions of unconstitutionality, and unconstitutionality claims, regulated by the Organic Law of the TC.

Civil claims are handled through regular judgments established by Law 1/2000. Administrative jurisdiction is governed by Articles 114-122. Labor courts follow the labor procedure outlined in Royal Legislative Decree of April 7, 1995.

International Supervision

  • Special Rapporteur on Religious Tolerance: Addresses the elimination of discrimination (advisory only).
  • Human Rights Committee: Oversees the implementation of the International Covenant on Civil and Political Rights (non-binding).
  • European Court of Human Rights: Adjudicates human rights issues. Its decisions are binding, consisting of economic sanctions or compensation for damages.

Concept of Religious Organization

A religious organization is a group of people united by a system of doctrine or belief in the divinity, externally manifested through a system of worship distinct from others. Major religious organizations include churches, confessions, and their federations. Minor religious entities are organizations born within larger ones to meet their objectives.

Types of Faiths

  • Catholic Church: Recognized in Article 16 of the EC, it has international legal personality. The norms of canon law are recognized (statutory character). It recognizes only the power of jurisdiction (the state recognizes its ecclesiastical decisions, Article 81 of the Civil Code).

  • Confessions with Agreements: Enjoy a more advantageous situation due to the guarantees adopted in the agreements.

  • Confessions with Legal Personality: They can sign agreements and are qualified to operate.

  • Confessions without Signed Agreements: Not considered as such. They develop and implement regulations governing fundamental rights.

Consequences of the Acquisition of Civil Legal Personality

Article 6 of the LOLR outlines the consequences:

Derived from Civil Law

  1. Recognition of the autonomy of confessions (institutional and regulatory). They can establish rules to govern their internal regime.
  2. Right to own religious entity (safeguard clauses are created for the entity).
  3. Possibility of signing agreements with the state, provided they have notorious roots.

Derived from Signed Agreements

  1. Possibility that the religious marriage of the confession has civil effect (Articles 59 and 60 of the Civil Code).
  2. Right to religious assistance for acts of worship in schools, and the right to impart religion in public centers.
  3. Possibility of being part of religious advisory boards.
  4. Possibility of access to media.

Cultural Heritage of Religious Confessions

Regarding the Catholic Church, it is regulated in Article 15 of the agreement on cultural issues of teaching and 79, and in the Historic Artistic Heritage Law, the 1985 Spanish Heritage Law. For other confessions, it is regulated in Article 13 of the agreements with FEREDE, the Islamic Commission of Spain (CIE), and the Federation of Evangelical Religious Entities of Spain (FEREDE), and in the general character and heritage of the 1985 Law.

Tax Allocation

Since mid-2006, tax allocation has been established through an agreement between the state and the Catholic Church. It brings the indefinite allocation of 0.5% to 0.7%. It makes minimum payments on account and also includes it in the budget. This system came into force in 2007 but was not implemented until 2008. The money obtained in the 2007 income statement was cleared in November 2008. The allocation of 0.7% implies that the Church renounces VAT. To comply with the agreement, the government issued a Ministerial Order on December 28, 2006. The law refers to state budgets.

Tax Benefits

Tax benefits for the Catholic Church are contained in Article 3.4 and 5 of the economic agreements, and other benefits for other confessions are contained in Article 11 of the corresponding agreements.

Budgets Not Subject

Article 3 of the agreement and Article 11 of the respective agreements cover:

  • Presentations, collections, or alms from the faithful.
  • Pastoral publications.
  • Teaching activities.

Exemptions

  • Total and permanent exemption from the Real Estate Tax (IBI), as per the 1985 Knights Law, including orchards, gardens, and dependencies of these properties.
  • Exemption from corporate tax.
  • Exemption from inheritance tax, donations, and asset transfers, provided they are earmarked for worship.

In the new regulation, tax records only apply to physical persons.

Budgets for Assimilation

Religious associations and institutions not included in the agreements but engaged in charitable, educational, or religious activities are entitled to the tax benefits that Spanish tax law grants to non-profit organizations.