Svenska kyrkans rättsliga ställning - offentligt, privat eller någonting annat. En studie av relationsförändringen mellan kyrka och stat.

Detta är en D-uppsats från Göteborgs universitet/Juridiska institutionen

Författare: Georg E Lagerberg; [2003]

Nyckelord: ;

Sammanfattning: 14. English Summary The organization of the Church of Sweden has been characterized by a very close connection between the Church and the State. But you can also say that the Church has had a very big impact on the organization of the State. From the beginning the Church had a local organization with parishes. Each parish was rather independent of the central level and each parish had its own assets and liabilities. From the local church the whole municipality sector was developed. The decision-making organs of the Church had taken on more and more tasks besides running the Church. Therefore the local Church was split in two parts 1862, one local church authority and one secular organization . On the central level the Church was organized as a part of the Roman-catholic church. With the reformation the king took over as the highest protector of the Church. The Church of Sweden took over most of its organization from the Roman-catholic church and it has been kept that way until today. An archbishop leads the Church of Sweden, bishops lead the dioceses and there exist special church tribunals. On the local level there is of course local parish priests. The central level was long seen as part of the State and to protect the church was a central goal for the government. Religious unity was regarded as a necessary component for holding the State together. Today the situation is completely different. A key word in the modern Swedish society is multiculturalism. Religion is more and more regarded as a private matter for each individual to decide about. The organization of the Church as part of the State at the central level and as mandatory municipalities at the local level slowly came into be in conflict with the rest of the society. The State should be neutral to a person’s faith and treat believers of different religious groups with equality. 1995 the parliament adopts a plan to separate the church from the state. The outcome was a process, which resulted in large changes of the relationship between the State and the Church, although not a complete separation. Several new laws came into force January the 1st 2000 and thereby completed the new relationship between the Church and the State. A new type of juridical person was created. This new type of association is open for all type of religious organizations. But to create a form of organization that can suit all different kinds of religious groups, organizations and societies etc. that exist is an almost impossible task. The result has been a very lose general regulation of the association registered faith-based society. But this general law needs too be read together with another new law that contains rules only applicable to the Church of Sweden. 14.1 The organization and legal status of the Church of Sweden This is not a very good solution of the problem. The goal of the whole process of changing the relationship between the Church and the State was to create a more equal situation for different religious organizations. Since we are moving towards a more and more multicultural society it isn’t acceptable to give one organization (and one faith) a very different treatment. Many of the problems that were supposed to be solved by the law about the church of Sweden remain unsolved for the rest of the religious organizations, churches and orders. Through the law about the church of Sweden the government tried to assure that the church also in the future would fulfil certain demands. Among those are; a will to maintain church activity in the whole country, a democratic decision-making organization, and an openness of the church and access for the public to the documents of the Church. But the demands of the state expressed in the law is not supported by any economical founds. Therefore it remains to be seen if they will be worth anything in the future. It doesn’t exist any kind of sanctions from the state if the Church violates the demands. Many questions are therefore still open and unanswered in the process. Several governmental authorities were dealing with errands concerning the church before the separation-process. All the open errands at those authorities where transferred over to the Church on January the first 2000. But this raises several questions. The errands had been sent to a governmental authority and received there according to the law. Therefore, I think, it should have been more natural if those authorities had finished those matters and only errands that will arrive after the date of the change of status should have been handed over to the Church. One connection between the Church and the State is of a more symbolic character. The king, who is the head of the State, is even in the future forced to have an evangelican-lutheran faith. Instead of all the different rules in the transmission chapter of the new constitution there are two new rules in the Swedish constitution. The meaning of those new laws are I that rules about religious societies should be given as statues made by the parliament. 2 that rules about the fundamental identity of the church of Sweden should be given in the form of a law made by the parliament. These rules should be seen as a compliment too the bill of rights in the second chapter and enlarge the area where rules only can be given by the parliament. No reason is given to why the religious organizations are given so much larger protection than a non-religious. The parishes lost their status as municipals. Therefore they no longer have the right to decide about taxes. Instead its members are obliged to pay a church fee. The State will help the Church to collect this fee and the same service is offered to other religious groups. This could sound harmless but I’m not so sure that it is. Only associations and organizations with a religious purpose are offered this help to collect their membership fee. But shouldn’t a modern state try to be neutral to different types of associations between its citizens? Does a state really respect a person who has decided to be an atheist if it only supports faith-based organizations? And is it a good solution to create a system where the state is going to hold register over people’s faith? The information is very sensitive and the government, who has given the information status of a long period of secret, has recognized this. This is god and protects that the information is not being spread too other individuals in the State but how does it protect the citizens against the State itself? Still after the change in relationship between the State and the Church the Church of Sweden will keep in charge for several tasks of the public administration. The local Church will for example run the funeral service and have the responsibility to preserve the rich cultural-historical important property in the hand of the Church. The Church’s priests also have the right to marry people. Even after the change in relationship it is obvious that the Church still is regulated by public law. But it is also obvious that the Church isn’t an ordinary authority of the State. The Church of Sweden is something unique as an organization. But if you want to classify it I would cal it a public corporation. The Church has members but it is not founded by them. It is founded in a law made by the parliament. The local parishes are also to be seen as public corporations. 14.2 Regulations about how to handle errands in the Church and methods to keep control by the state. Most of the errands in the Church will no longer be regulated by the public administration act. Only when it comes to errands that concern tasks that the Church is performing on demand from the State should this rule be applied. The largest area is without question errands concerning the funeral service. The result is a more difficult and unstructured picture for the individual. Different rules will be applicable in different areas. I would personally prefer that al acts of the Church even in the future were regulated by the public administration act. This could have been possible if the criteria for when that act is applicable would be stretched out to include al kind of entities founded by public law. For the individual, quite often, the right to appeal is a central issue. The right to appeal gives the person a guarantee to have it tested if his or hers errands at least have been handled properly according to the regulations within the area. Errands in the Church, which are of the character of exceeding public authority individuals are able to have supervised by appeal to an ordinary court, most often to the district administrative court (länsrätten). Other errands can only be appealed to an organ inside the Church. On the diocese level the Church tribunal for those matters is called domkapitel and on central level there is Svenska kyrkans board of appeals. It is of course better that there exist organs inside the church than no such organs but it is not a solution as god as an independent test made by a court. In addition to these rules that are regulating errands in the Church public authorities are rules bound by certain material principles. Among those are the central ones as the principle of equal treatment, the principle about objectivity and the principle about neutrality. There are strong reasons to argue for that those principles should be applicable regardless of if the errand has arisen at a public authority or at a private organ that is taking care of tasks characterized as public administration. But when it comes to the Church of Sweden I think it would be more correct if those principles were applicable to al errands, public administration or not. This would be the price an organization would have to pay for being founded by a statue of a public entity. The state is normally practicing several different methods of steering and controlling its authorities; the rules regulating handling of errands, the church administration and the right to appeal are just a few of those. Other important measures are by given new rules, appoint positions, and control the financial situation. As long as the Church was part of the State or parts of mandatory municipalities it could, at least theoretically, be controlled and regulated in the same way as the rest of the public authorities. The parliament made laws and the government made other regulations. This situation is now radically changed. The Church is still controlled by a law but this of a very general character and most of the rules concerning the Church are, after the changed relationship, an internal Church matter. Indirectly the State has kept some power. The Church still has the responsibility over the funeral service and this area is very strongly regulated. Quite certain will those rules inflect how the church will regulate the other areas. When it comes to appointments the State no longer has any direct influence. Financially the Church has also gained a totally independence if you look at the situation from a very close angle. The Church will, after the change in the relationship, own its assets and decide over the Church fee for its members. In a wider perspective the State has, even in the future, a very big influence over the financial situation of the Church. It is dependent of the help from the State to collect its church fees and needs a lot of financial help to preserve the enormous cultural heritage that the church’s assets represent. The Church role in the funeral service is also dependent of help from the State to collect the fees and special minority representatives are appointed by the State to supervise. Previously control was also made over the acts of the Church by the Justitieombudmanen (JO) and by the Justitiekanslern (JK). After the changed relationship this will only be the case when the Church is dealing with matters of public administration and only errands that is of a certain qualified character. These are errands concerning decisions about privileges and burdens on individuals. As for the rest of the Church’s working field, this control does no longer exist. The Church itself by Svenska kyrkans board of appeals exerts some control. 14.3 Comments and conclusions The Church of Sweden will keep a unique position in Sweden. Many important connections to the public – the state and the municipalities – remain. Those connections have been regarded so important that the State, even after the change of the relationship, has given itself the right to specific claims on the Church expressed in the law about the Church of Sweden. The Church has now become a juridical person and has members but it’s not founded by its members. It is funded by the State expressed in a law made by the parliament. The problems with a separation of such a huge organization like the whole Church from the State are many. Different solutions have been presented. If they are good or not can be discussed but it is clear that several question marks have been straightened out. The assets of the church belong after the separation to the Church. In most of its work it is allowed to make its decisions without any interference from the State. But there is also a new type of problems concerning the relationship between the Church and individuals, both its members and non-members. Several new questions need to be solved. What kind of service should the Church offer? How is an individual able to protect his or her rights? In this essay I’ve at least tried to point at the different problems this kind of big change will entail and I’ve also tried to highlight the differences before and after the change. I hope that I’ve given the reader some understanding of this kind of processes and some knowledge that can be useful in the future. Even if the Church was a very special part of the State many of the problem with “this privatisation process” are the same in many other areas. The purposes with many of the chosen solutions are very good. Both the Church and the State have wanted too assure that the Church would keep its character of a democratic organization. One important part of this is to ensure individuals the right to gain access to the Church’s documents. Even if the purposes are very good I’ve tried to show that it isn’t certain that the goal is reached. When you create several parallel systems, all very good if you look at them separately, you also make it very difficult for the citizens. In the Church there are different solutions even within the same organization. Some areas are completely regulated by internal church rules, while other areas of the Church are threatened as a public authority. Even if you create two very similar systems you can’t be certain about that this similarity is going to last, at least not if the systems are made as the ones in the church. Different instances of appeal make the risk obvious that praxis after a certain time have made the differences between the systems much larger. If the best for the citizen should be in focus my point is that one should try to have more general solutions. Only this makes it possible for the citizen to know and protect their rights. Finally it is needed to point at many of the problems remains open questions. It is now three years since the church was separated from the state but this time is a relatively short period if you want to test different legal solutions. First after a few more years, when we will have more of prejudicing praxis it will be possible to make certain conclusions about what was successful or not. But I hope that my essay would have made the reader more aware of the complex of problems.

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