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Freedom of conscience and freedom of religion. The legal regime of religious organizations in Romania. Legal norms, jurisprudence, considerations and evaluations
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Publisher: Editura Universitară
Author: Dragos Penca
Edition: I
Pages: 376
Publisher year: 2024
ISBN: 978-606-28-1918-7
DOI: https://doi.org/10.5682/9786062819187
Product Code:
9786062819187
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PREFACE/11
ABBREVIATIONS/15
INTRODUCTION/17
The purpose of scientific research/17
Research hypotheses/17
The novelty of approaching the theme of scientific research/20
Potential beneficiaries of scientific research/24
Organization of scientific research/25
The structure of the scientific research work/30
CHAPTER 1 RELIGIOUS FREEDOM AS A GENERAL LEGAL PROVISION/34
Religion/35
The human right to freedom of thought, religion and practice of religion/36
The right of association in order to practice a religion, materialized in Religious Cult/42
Ecumenical, fraternal relations and belonging to international religious structures/46
Members of religious cults, their rights and obligations/52
Some canonical and statutory provisions regarding cult members/54
The relations between the cults and the Romanian believers in the diaspora/60
National legislation regarding fundamental human rights and freedoms/63
Freedom of conscience in military service/64
The right to dispose of the body and the events after death/72
Religious rights and freedoms of persons in detention/76
Religion as a phenomenon of radicalization/79
Protection of the privacy of religious beliefs and adopted religion/80
Conclusion/85
CHAPTER 2 THE RELATIONSHIP OF RELIGIOUS CULTS WITH THE STATE/87
The autonomy of religious cults vis-à-vis the state/88
Neutrality of the state towards religious cults/112
Over the abusive legislation of cults/117
The material support granted by the state to religious cults in Romania/123
Fiscal policy of the state towards cults and religious associations/126
Conclusion/132
CHAPTER 3 RECOGNITION OF THE QUALITY OF WORSHIP AND RELIGIOUS ASSOCIATION/135
Religious worship/135
The legal regime of religious cults until the Great Union/136
The legal regime of religious cults in Greater Romania/138
Law 21 of 1924 regarding associations and foundations/140
Law of Cults from 1928/140
Constitution of the Romanian People's Republic from 1948/141
Decree-Law 177 of 1948/142
Constitution of the Socialist Republic of Romania from 1965/144
The Constitution of Romania from 1991/145
Law no. 489/2006 regarding religious freedom and the general regime of cults/145
The history of the institutional organization of cults in Romania/148
Legal personality of religious organizations/155
The legal personality of the local church or community/162
Territorial and national organization of cults/164
Recognition of Religious Cult/166
Recognition of the Religious Association/168
Recognition of the religious group/173
Conclusion/175
CHAPTER 4 LEGAL STATUS OF THE PERSONNEL OF RELIGIOUS CULTS/177
Legal relations of religious cults with clerical staff/177
The legal status of the clerical staff paid by the contribution from the State Budget/178
The legal status of the military clergy/183
Social insurance of clerical and monastic staff/185
Social health insurance of clerical and monastic staff/188
Salary of religious staff by the state. The assimilation of clerical functions to public functions and dignities/188
Fiscal treatment in the case of the use of parish houses and monastic dwellings/192
Exception from the obligation to fulfill the mandatory military service or to participate in armed confrontations/193
Exceptions to the general provisions of the Civil Code regarding inheritance/193
The clerical staff's right to remain silent/194
Exceptions to the principle of non-discrimination in work/196
Facilities granted to clerical staff who do not hold Romanian citizenship/207
Institutions of internal control and judgment/207
Statutory peculiarities regarding the clergy or assimilated personnel/217
Conclusion/225
CAPITOLUL 5 DOBANDIREA SI REGIMUL JURIDIC AL PROPRIETATILOR BISERICESTI/229
Modurile de dobandire a bunurilor bisericesti/229
Dobandirea bunurilor prin contributia credinciosilor/230
Dobandirea bunurilor prin succesiune asupra bunurilor monahilor si ierarhilor/232
Dobandirea prin prescriptia extinctiva/234
Dobandirea prin uzucapiune sau prin prescriptia achizitiva/235
Dobandirea prin producerea si comercializarea bunurilor/237
Dobandirea prin alocatii si subventii de la Bugetul de Stat sau bugetele locale/237
Regimul juridic al bunurilor cultelor religioase/238
Lacasurile de cult si casele parohiale/244
Cimitirele confesionale/248
Unitatile de invatamant confesionale/251
Casele de pensii ale cultelor religioase/253
Entitatile de asistenta sociala/255
Drepturile de proprietate intelectuala/257
Concluzie/260
CAPITOLUL 6 INVATAMANTUL RELIGIOS/263
Modelul european de educatie religioasa/264
Disciplina «Religie» in invatamantul romanesc/265
Invatamantul religios si unitatile de invatamant confesionale de stat sau particulare/269
Personalul didactic teologic din scolile de stat/272
Personalul didactic teologic din scolile confesionale private/275
Studentii institutiilor de invatamant confesional/276
Concluzie/277
CONCLUSIONS OF SCIENTIFIC RESEARCH/279
Thinking, conscience and faith, fundamental human rights/279
Religious worship - the expression of the fundamental right of association and living of religious faith/283
The special legal regime of the clergy/284
The goods of the Church/285
State-Church cohabitation in the interest of the fundamental right of the individual/286
Religious education/288
Religious freedom and the religiosity of the Romanian people/291
BIBLIOGRAPHY/293
Sources/293
Dictionaries and encyclopedias/293
Normative acts/294
Jurisprudence/308
Books/314
Articles and studies in magazines/326
Electronic sources/352
Interviews/356
ANNEX 1. List of religious cults recognized in Romania according to Law 489/2006 on religious freedom and the general regime of cults/357
ANNEX 2. List of religious associations recognized in Romania according to Law 489/2006 on religious freedom and the general regime of cults, as of February 25, 2022/358
ABBREVIATIONS/15
INTRODUCTION/17
The purpose of scientific research/17
Research hypotheses/17
The novelty of approaching the theme of scientific research/20
Potential beneficiaries of scientific research/24
Organization of scientific research/25
The structure of the scientific research work/30
CHAPTER 1 RELIGIOUS FREEDOM AS A GENERAL LEGAL PROVISION/34
Religion/35
The human right to freedom of thought, religion and practice of religion/36
The right of association in order to practice a religion, materialized in Religious Cult/42
Ecumenical, fraternal relations and belonging to international religious structures/46
Members of religious cults, their rights and obligations/52
Some canonical and statutory provisions regarding cult members/54
The relations between the cults and the Romanian believers in the diaspora/60
National legislation regarding fundamental human rights and freedoms/63
Freedom of conscience in military service/64
The right to dispose of the body and the events after death/72
Religious rights and freedoms of persons in detention/76
Religion as a phenomenon of radicalization/79
Protection of the privacy of religious beliefs and adopted religion/80
Conclusion/85
CHAPTER 2 THE RELATIONSHIP OF RELIGIOUS CULTS WITH THE STATE/87
The autonomy of religious cults vis-à-vis the state/88
Neutrality of the state towards religious cults/112
Over the abusive legislation of cults/117
The material support granted by the state to religious cults in Romania/123
Fiscal policy of the state towards cults and religious associations/126
Conclusion/132
CHAPTER 3 RECOGNITION OF THE QUALITY OF WORSHIP AND RELIGIOUS ASSOCIATION/135
Religious worship/135
The legal regime of religious cults until the Great Union/136
The legal regime of religious cults in Greater Romania/138
Law 21 of 1924 regarding associations and foundations/140
Law of Cults from 1928/140
Constitution of the Romanian People's Republic from 1948/141
Decree-Law 177 of 1948/142
Constitution of the Socialist Republic of Romania from 1965/144
The Constitution of Romania from 1991/145
Law no. 489/2006 regarding religious freedom and the general regime of cults/145
The history of the institutional organization of cults in Romania/148
Legal personality of religious organizations/155
The legal personality of the local church or community/162
Territorial and national organization of cults/164
Recognition of Religious Cult/166
Recognition of the Religious Association/168
Recognition of the religious group/173
Conclusion/175
CHAPTER 4 LEGAL STATUS OF THE PERSONNEL OF RELIGIOUS CULTS/177
Legal relations of religious cults with clerical staff/177
The legal status of the clerical staff paid by the contribution from the State Budget/178
The legal status of the military clergy/183
Social insurance of clerical and monastic staff/185
Social health insurance of clerical and monastic staff/188
Salary of religious staff by the state. The assimilation of clerical functions to public functions and dignities/188
Fiscal treatment in the case of the use of parish houses and monastic dwellings/192
Exception from the obligation to fulfill the mandatory military service or to participate in armed confrontations/193
Exceptions to the general provisions of the Civil Code regarding inheritance/193
The clerical staff's right to remain silent/194
Exceptions to the principle of non-discrimination in work/196
Facilities granted to clerical staff who do not hold Romanian citizenship/207
Institutions of internal control and judgment/207
Statutory peculiarities regarding the clergy or assimilated personnel/217
Conclusion/225
CAPITOLUL 5 DOBANDIREA SI REGIMUL JURIDIC AL PROPRIETATILOR BISERICESTI/229
Modurile de dobandire a bunurilor bisericesti/229
Dobandirea bunurilor prin contributia credinciosilor/230
Dobandirea bunurilor prin succesiune asupra bunurilor monahilor si ierarhilor/232
Dobandirea prin prescriptia extinctiva/234
Dobandirea prin uzucapiune sau prin prescriptia achizitiva/235
Dobandirea prin producerea si comercializarea bunurilor/237
Dobandirea prin alocatii si subventii de la Bugetul de Stat sau bugetele locale/237
Regimul juridic al bunurilor cultelor religioase/238
Lacasurile de cult si casele parohiale/244
Cimitirele confesionale/248
Unitatile de invatamant confesionale/251
Casele de pensii ale cultelor religioase/253
Entitatile de asistenta sociala/255
Drepturile de proprietate intelectuala/257
Concluzie/260
CAPITOLUL 6 INVATAMANTUL RELIGIOS/263
Modelul european de educatie religioasa/264
Disciplina «Religie» in invatamantul romanesc/265
Invatamantul religios si unitatile de invatamant confesionale de stat sau particulare/269
Personalul didactic teologic din scolile de stat/272
Personalul didactic teologic din scolile confesionale private/275
Studentii institutiilor de invatamant confesional/276
Concluzie/277
CONCLUSIONS OF SCIENTIFIC RESEARCH/279
Thinking, conscience and faith, fundamental human rights/279
Religious worship - the expression of the fundamental right of association and living of religious faith/283
The special legal regime of the clergy/284
The goods of the Church/285
State-Church cohabitation in the interest of the fundamental right of the individual/286
Religious education/288
Religious freedom and the religiosity of the Romanian people/291
BIBLIOGRAPHY/293
Sources/293
Dictionaries and encyclopedias/293
Normative acts/294
Jurisprudence/308
Books/314
Articles and studies in magazines/326
Electronic sources/352
Interviews/356
ANNEX 1. List of religious cults recognized in Romania according to Law 489/2006 on religious freedom and the general regime of cults/357
ANNEX 2. List of religious associations recognized in Romania according to Law 489/2006 on religious freedom and the general regime of cults, as of February 25, 2022/358
First of all, I consider it necessary to introduce to the readers the book entitled "Freedom of Conscience and Freedom of Religion. The Legal Regime of Religious Organizations in Romania. Legal norms, jurisprudence, considerations and evaluations", the fact that its author, Dr. Dragos Penca, tackled a topical issue in the landscape of Romanian academic research, through which he made a meritorious contribution to the definition and specification of the legal status of religious cults in our country.
The result of his scientific research work, which assumed an interdisciplinary preparation and approach (theological, legal, canonical and historical), gave the author the opportunity to write a reference work on the legal regime of some religious cults in Romania.
The multitude of works consulted, their analysis and evaluation in accordance with the norms provided by the methodology of scientific research work and his Lordship's determination to make a real contribution in the ecclesiological canonical legal and ecclesiological statutory field allowed him to present us a unique work, in the way them, both in the theological and legal fields, hence our conviction that the informed reader will appreciate this sui generis contribution of its author.
We are also convinced that Dr. Dragos Penca will establish himself in the landscape of specialized literature with other reference works, which will highlight the contribution of the first School of Orthodox Theology, in the Romanian area, because, in truth, in Tomis (Constanta) - the cultural and spiritual metropolis of the Romanian nation - some of the first Christian scholars were trained and active, such as John Casian and Dionisie Exiguus, who proved to be not only some of the founders of European culture and spirituality, but also fervent promoters of ecumenical Christian unity.
The personal desire of Dr. Dragos Penca - of the type of "pium desiderium" (pious desires) - happily materialized through this book, which shows that its author really has not only a solid theological training, but also a legal one. Moreover, the profession of jurist allowed him to research and comment not only on the text of the legislation of some Cults (canonical legislation, Statutes, Regulations, etc.), but also on the jurisprudence of our country and in Europe, from the text of which his Lordship highlighted many elements of novelty, which were unknown or little known in the specialized literature.
I also appreciate the fact that his Lordship did not remain tributary to exegetical texts of the various authors consulted, but, regardless of their prestige or doctrinal orientation, he examined them first of all through the prism of the provisions of the norms of state legislation and the canonical and statutory one of religious cults from our country, and then evaluated their statements.
I also noted the fact that, for his Lordship, the bibliographic references of some Orthodox, Roman Catholic, Protestant or Neo-Protestant theologians are only a source of secondary information, because the first or fundamental source was the Holy Scripture, the common source of the knowledge of God and divine things.
Aware of this, Dr. Dragos Penca first examined the text of the Holy Scriptures, the main source of any Christian legislation, and then he researched the canonical text and the text of the Statutes of religious cults, and, in case some of these did not have canonical legislation, the author appealed to the ecclesiology of the respective Statutes, and - as a term of comparison - to the ecclesiology of the "historical" Churches, as they names the legislator, i.e. the Orthodox Church and the Roman Catholic Church.
We also want to see the fact that the author of the book made an exceptional contribution in terms of specifying and explaining the ecclesiological, canonical and juridical nature of the legal regime of the respective religious cults, which required him to diligently research the text of some works with inter- multidisciplinary written by authors from the country and abroad.
My views on this book can therefore be summed up in three statements:
a) His Lordship's book addresses a topic whose actuality, importance and necessity has been made abundantly clear by its author himself in its pages;
b) The various research methods used helped the author to become familiar both with the interpretation of legislative texts and with the evaluation of the doctrinal (jurisprudential) text, which allowed him a critical, but objective, evaluation of the legal regime of the respective Religious Cults;
c) The right to freedom of religion was related not only to the right to religious freedom - provided both by the country's Constitution and by Law no. 489/2006, as well as the norms of international legislation, from the scope of which the legislation of the European Union was heavily reflected, - but also the right to freedom of religious cults
I would also like to specify the fact that the results of his scientific research work - concretized in the pages of this book - amply entitle me to urge Mr. dr. Dragos Penca to continue deepening the theme of this topic regarding the legal regime of religious Cults, in order to be able to offer other well-known and meritorious scientific contributions both to the specialized literature, in the Romanian language, as well as to the ministers and theologians of the religious Cults in our country.
In conclusion, I am pleased to say that the pioneering work of Dr. Dragos Penca has the gift of imposing itself in specialized literature as an indispensable book for any lawyer or cultured person who wants to know the legal regime of the religious cults in Romania, and, through this, also the way in which the religious cults in our country exercise the right to religious freedom, stipulated both by the constitutional text (cf. Art. 29 of the Romanian Constitution) and by the Law on Religions (Law no. 489/2006).
Last but not least, I am confident that this book will be a "must have", that is, a kind of "vade mecum" for any theologian in training (student, master's or doctoral student) from any Church or Cult in our country, and that it will be useful for those beyond its borders, be they theologians, jurists, historians, etc.
The result of his scientific research work, which assumed an interdisciplinary preparation and approach (theological, legal, canonical and historical), gave the author the opportunity to write a reference work on the legal regime of some religious cults in Romania.
The multitude of works consulted, their analysis and evaluation in accordance with the norms provided by the methodology of scientific research work and his Lordship's determination to make a real contribution in the ecclesiological canonical legal and ecclesiological statutory field allowed him to present us a unique work, in the way them, both in the theological and legal fields, hence our conviction that the informed reader will appreciate this sui generis contribution of its author.
We are also convinced that Dr. Dragos Penca will establish himself in the landscape of specialized literature with other reference works, which will highlight the contribution of the first School of Orthodox Theology, in the Romanian area, because, in truth, in Tomis (Constanta) - the cultural and spiritual metropolis of the Romanian nation - some of the first Christian scholars were trained and active, such as John Casian and Dionisie Exiguus, who proved to be not only some of the founders of European culture and spirituality, but also fervent promoters of ecumenical Christian unity.
The personal desire of Dr. Dragos Penca - of the type of "pium desiderium" (pious desires) - happily materialized through this book, which shows that its author really has not only a solid theological training, but also a legal one. Moreover, the profession of jurist allowed him to research and comment not only on the text of the legislation of some Cults (canonical legislation, Statutes, Regulations, etc.), but also on the jurisprudence of our country and in Europe, from the text of which his Lordship highlighted many elements of novelty, which were unknown or little known in the specialized literature.
I also appreciate the fact that his Lordship did not remain tributary to exegetical texts of the various authors consulted, but, regardless of their prestige or doctrinal orientation, he examined them first of all through the prism of the provisions of the norms of state legislation and the canonical and statutory one of religious cults from our country, and then evaluated their statements.
I also noted the fact that, for his Lordship, the bibliographic references of some Orthodox, Roman Catholic, Protestant or Neo-Protestant theologians are only a source of secondary information, because the first or fundamental source was the Holy Scripture, the common source of the knowledge of God and divine things.
Aware of this, Dr. Dragos Penca first examined the text of the Holy Scriptures, the main source of any Christian legislation, and then he researched the canonical text and the text of the Statutes of religious cults, and, in case some of these did not have canonical legislation, the author appealed to the ecclesiology of the respective Statutes, and - as a term of comparison - to the ecclesiology of the "historical" Churches, as they names the legislator, i.e. the Orthodox Church and the Roman Catholic Church.
We also want to see the fact that the author of the book made an exceptional contribution in terms of specifying and explaining the ecclesiological, canonical and juridical nature of the legal regime of the respective religious cults, which required him to diligently research the text of some works with inter- multidisciplinary written by authors from the country and abroad.
My views on this book can therefore be summed up in three statements:
a) His Lordship's book addresses a topic whose actuality, importance and necessity has been made abundantly clear by its author himself in its pages;
b) The various research methods used helped the author to become familiar both with the interpretation of legislative texts and with the evaluation of the doctrinal (jurisprudential) text, which allowed him a critical, but objective, evaluation of the legal regime of the respective Religious Cults;
c) The right to freedom of religion was related not only to the right to religious freedom - provided both by the country's Constitution and by Law no. 489/2006, as well as the norms of international legislation, from the scope of which the legislation of the European Union was heavily reflected, - but also the right to freedom of religious cults
I would also like to specify the fact that the results of his scientific research work - concretized in the pages of this book - amply entitle me to urge Mr. dr. Dragos Penca to continue deepening the theme of this topic regarding the legal regime of religious Cults, in order to be able to offer other well-known and meritorious scientific contributions both to the specialized literature, in the Romanian language, as well as to the ministers and theologians of the religious Cults in our country.
In conclusion, I am pleased to say that the pioneering work of Dr. Dragos Penca has the gift of imposing itself in specialized literature as an indispensable book for any lawyer or cultured person who wants to know the legal regime of the religious cults in Romania, and, through this, also the way in which the religious cults in our country exercise the right to religious freedom, stipulated both by the constitutional text (cf. Art. 29 of the Romanian Constitution) and by the Law on Religions (Law no. 489/2006).
Last but not least, I am confident that this book will be a "must have", that is, a kind of "vade mecum" for any theologian in training (student, master's or doctoral student) from any Church or Cult in our country, and that it will be useful for those beyond its borders, be they theologians, jurists, historians, etc.
Profesor Emeritus D.H.C. Nicolae V. Dura
Universitatea Ovidius din Constanta
Universitatea Ovidius din Constanta
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