State Funding of Religious Organizations in Georgia

This article aims to analyze the existing model of state funding of religious organizations in Georgia, taking into account its assumptions and nature and focusing on the problem of the preferential treatment of some religious organizations (especially the Georgian Orthodox Church). First, the key assumptions of funding religious organizations from public sources in Georgia are presented. Then, the article discusses the relevant case law of the Constitutional Court of Georgia. Finally, the challenges of the current model are identified, and some suggestions for the desirable changes in the system are made accordingly. It is argued that the future solutions in this area should respect the principle of secular state. The article concludes by indicating some possible European models that could be followed by the Georgian legislator.


I. INTRODUCTION
Religion is never fully private. 1 Despite a number of events, case law and legal practice of different nations, it still remains one of the most important and influential social factors. Many societies have made attempts to become areligious, 2 but it is always a complex process and depends on national culture, history and ethnical identity. Habermas even writes about post-secular societies, which passed the period of secularization and are now turning into the new reality, where religion becomes "public" anew. 3 The new wave of immigration has given rise to new questions and new problems. Religion is a important part of many immigrants' identity 4 and this has made Old Europe think about "lost" religious values that disappeared from the public life after the French Revolution as a result of the Enlightenment. 5 This situation is very familiar to post-communist and especially post-Soviet countries, where there is no experience of proper secularity (at the beginning, Soviet policy was anti-religious, but then it was transformed into the Erastian model 6 ).
As far as Georgia is concerned, the Constitution recognizes freedom of belief, religion and conscience, 7  has enough privileges and political authority to make the governmental secular policy quite "unclear". The Georgian Orthodox Church and also four other religious organizations are financed by the state. This is officially called "partial and symbolic compensation", but there are many questions about this model. This article overviews and analyzes the existing model of state funding of religious organizations in Georgia, taking into account especially the assumptions and nature of financial support, including the problem of the preferential treatment of some religious organizations. II There are many models of church-state relations all over the world, they have communalities and differences, but the finances and taxes are the spheres in which churches and states often collaborate and cooperate. 8 It is also the case in Georgia. The Constitutional Agreement between the Georgian Orthodox Church and the Georgian government, adopted in 2002, not only provides tax privileges and exemptions, 9 but also gives opportunity to the Church to demand many more privileges and funding.
The Constitutional Agreement recognized damage to the Church at the time of the Russian Empire, the Democratic Republic of Georgia and the Soviet Union during 19-20 th centuries (in particular, in the period of . Moreover, the state took on the obligation to pay partial compensation for this damage. 10 A change of the political regime and the ensuing transformations always give rise to questions of compensation and reparation of the past injustices, and this is quite normal for the post-Soviet country which tries to end its post-Soviet era and aspires to development 8 Frank Cranmer, "National Churches, Territoriality and Mission", Law & Justice -Christian Law Review 149 (2002): 161. 9 All liturgical production of the Church, also its property and land are exempted from taxation. See: Constitutional Agreement between the Georgian Apostolic Autocephalic Orthodox Church and Georgian State, 14 October 2002, Art. 6(5). 10 Ibid, Art. 11(1). and political balance. However, it is important to avoid making historical mistakes in this process. Since 1801 the Russian Empire destroyed and damaged material and spiritual treasures of the Georgian nation, including a number of Georgian churches and castles. Georgia was conquered by the Empire and was the victim of the aggression, just as the Orthodox Church itself. The situation was not much different during the Soviet occupation in the years . Both in the 19 th and 20 th century, during both periods of occupation, Georgia was not an independent country. Therefore, it is hard to understand why the state should pay any compensation for the actions that it is not responsible for. Moreover, after the restoration of independence, Georgia did not recognize itself as the successor of the Soviet Union and declared the 1921-1990 period as occupation. 11 Compensation can be paid for the damages made by the Democratic Republic of Georgia in 1918-1921, when the social democratic government implemented its strict secular policy. 12

COMPENSATION FOR THE ORTHODOX CHURCH OF GEORGIA
At the beginning of the 1990s, when the governmental institutions and other state bodies did not function properly the Church effectively over-took various state functions and become the guarantor of nationality. 13 This situation logically conditioned very tight and extraordinary collaboration of the Georgian state and the Church. Since 2002, when the Constitutional Agreement was adopted, the Georgian Orthodox Church has attempted to dominate the religious landscape and be the only religious leader of the society (the Constitutional Agreement is in fact one of the results of these attempts). 14 According to the Constitutional Agreement, the Georgian government recognized the damage to the Church and took responsibility for the compensation. The state officially gives 25 million GEL to the Church, but no legal document formally defines it as "compensation", and only the purposive interpretation of the whole legislation makes it possible to reach such a conclusion, which can hardly be considered appropriate in the case of such serious questions.
The Georgian Orthodox Church receives not only direct budgetary funding, but also other matarial resources such as real estates. 15 The Patriarchate of the Church gets funding from the central national budget as well as from the budgets of local self-governments, the reserve funds of the President and the Council of Ministers of Georgia. 16  2009-2013, the annual financial support for the Patriarchate of the Church varied from 22 to 27 million GEL, but since 2013 the annual budgetary funding is strictly 25 million GEL. 18 This is connected with the fact that the subsidies from the reserve funds of the central state authorities were decreased. 19 The largest part of the funding received by the Church in the years 2014-2015 was spent on salaries and bonuses to workers and priests, and only the remaining part was used to support real estates such as churches and monasteries. 20 The main purpose of the Patriarchate's expenditures is to support spiritual education and raise youth with Christian values (more than 70 educational units and NGOs of the Georgian Patriarchate receive money for this purpose). 21 For many years, the official budget did not provide for expenses of this kind, because they were treated as extraordinary (as a certain kind of "gift") and thus making the subsidy to the Church was not mandatory. However, after the discussions, the state budget includes the expenses at issue. It needs to be stressed, however, that these funds are not subject to state financial control or auditing obligations.
The Georgian Orthodox Church gets additional funding from the local (municipal) self-governments. 22 Local governments have their own programmes and ways to financially support religious organizations. 23 Municipal funding of religious organizations is under the special budgetary sub-programme -"Support of Religious Organizations". 24 More than 90% ded to the Georgian Patriarchate", Transparency International Georgia, July 4, 2013, https:// www.transparency.ge/en/blog/overview-public-financing-provided-georgian-patriarchate. of the municipal finances for religious organizations are for the Georgian Orthodox Church, and it is noteworthy the highest financial support for the Georgian Patriarchate is given by the local governments of the municipalities where the most part of the registered population is not Orthodox. 25 Municipal funding of the Church goes not only to dioceses or monasteries, but sometimes also to private bank accounts of spiritual hierarchs and leaders. 26

COMPENSATION FOR OTHER RELIGIOUS ORGANIZATIONS
The Georgian Orthodox Church recognizes only "traditional" religions -the Roman Catholic and Armenian Churches, as well as the Jewish and Muslim communities, while all others are out of its interest. 27 In fact, the Georgian state follows the Georgian ORthodox Church, and this is why in 2014 the government decided to begin funding these four religious organizations (actually the number of organizations was bigger, but Catholics and Muslims created representative councils) 28 and this decision was explained as the way to eliminate the "previously existing discriminative practice". 29 According to the governmental position, this funding is neither compensation nor restitution (in fact, no one had calculated the damage 30 ), but bears a "symbolic character". 31 Actually funding four religious organiza- 31 "Funding of four religious organizations, provided by Decree No. 117 of the GoG dated by 27 January 2014, shall not be considered as compensation or restitution for any established damage, but bears rather a symbolic character because the amount of the damage received during the Soviet totalitarian regime is unknown. Accordingly, criteria for defining amount of financial assets take into account current circumstances related to those religious tions is not compensation, 32 declared in Decree No. 117, but direct funding from the government, 33 which gives rise to a number of questions.
The government has implemented strict mechanisms of accountability and regulations for the four religious organizations on permissible ways of spending allocated funds. 34 The Agency of Religious Affairs obliges them in special agreements to use the money for strictly religious purposes: remuneration for religious activities of the clergy; restoration and maintenance of cult and religious buildings; religious educational activities; household expenses of religious organizations; cultural and charity activities 35 (the agreement with the Muslim community includes an additional restriction that 75% of the funds must be spent on salaries and only the rest of the money -for other purposes 36 ). Since all these purposes are confessional, some experts claim that this model of state funding of the four religious organizations can be qualified as indirect funding of religion. 37 Within one month of signing the agreement, religious organizations are obliged to submit a spending plan of the money taking into consideration the purposes specified in the agreement. 38 Religious organizations are obliged to submit interim and final reports about their expenses according to the agreement, and the Agency is authorized to terminate contracts with a religious organization if its expenses are contradictory to the purposes stated in the agreement. 39 The funds for religious organizations are paid out periodically, and the Agency of Religious Affairs determines the exact organizations." See "The Government of Georgia Comments on the ECRI report on Georgia (fifth monitoring cycle) 2016", https://www.coe.int/en/web/european-commission-against--racism-and-intolerance/ dates and proportions according to which the funds are divided among religious organizations. 40 Municipal budgets include programmess for the support of religious organizations, but this support is insignificant; 41 in practice only up to 10% of this money is distributed among all religious organizations with the exception of the Georgian Orthodox Church. 42

III. CASE LAW OF THE CONSTITUTIONAL COURT OF GEORGIA
The case law of the Georgian Constitutional Court concerning state funding of religious organizations may not be rich, as there are no too many decisions or judgments in this regard. Nevertheless, several cases were handled by the Court.
The Legal Entity of Public Law (LEPL) "Georgian Church of Evangelical Faith" demanded to annul state funding for the four religious organizations on grounds of the fact that not only these organizations were damaged by the Soviet totalitarian regime, and that "partial" and "symbolic" restitution was unconstitutional and discriminative. The Constitutional Court of Georgia declared that the Georgian Church of Evangelical Faith was not a direct subject of the norm. Although Decree No. 117 enumerated four religious organizations and the government decided to give them symbolic compensation, this did not exclude any other religious organization to receive such compensation in the future if the government decided to do so. 43 The Court also ruled that as the claimant was not representative of any of those four organizations, "partial" or "symbolic" compensation did not concern it and, as a consequence, the Court could not consider the relevant norms of the Decree to be unconstitutional. 44 40 https://emc.org.ge/ka/products/otkhi-religiuri-organizatsiis-dafinansebis-praktikis--samartlebrivi-shefaseba There is no other legal act beside the annual law on state budget that states the amount of financial support for the Georgian Orthodox Church. That is why the claimants made two attempts to challenge the constitutionality of the annual law on state budget, but the Court dismissed the claim twice: before the Court scheduled a court hearing, the budgetary year ended and thus the law on state budget of the last year was automatically was no longer valid. 45 The claimants demanded that the Court should decide about the end of the binding force of the norms of the law concerning the state funding of the Georgian Orthodox Church. They argued that this funding was not compensation, but direct and non-secular (confessional) support for the Church. 46 The Court reviewed the third claim and issued the relevant judgment.
The Constitutional Court of Georgia stated that the claimants' understanding of the challenged norms was wrong, because they should not be understood as establishing any church tax especially in favour of the Georgian Orthodox Church. Setting budgetary priorities and drafting the budget is exclusively at the discretion of the government. 47 The Court also declined the claimants' argumentation that they took part in the funding of the religious organizations against their will, and stated that the challenged norms did not concern income tax and could not be interpreted as impacting anyone's beliefs. 48 The Constitutional Court declared that the norms of the annual state budget funding the Georgian Orthodox Church did not make anyone take part in the funding. The case concerned only the ways of dividing the accumulated state funds and there was no discrimination against the claimants.

IV. CHALLENGES OF THE CURRENT MODEL AND THE NEED FOR CHANGES
Funding the Patriarchate of the Georgian Orthodox Church is a hotly debated topic in contemporary Georgian society. 50 Before 2012, the decisions about increasing the state funding for the Georgian Orthodox Church were always taken in the proximity of the election period in the country. 51 "Funding of religious organizations had different political connotation under different governments. During United National Movement's […] governance, interrelations between political government and church leadership were antagonistic and in this regards funding was an instrument of restraining church resistance, taming and overcoming political crisis." 52 Since 2012 the funding has not been linked to the elections, but the relations between the government and the Church have stabilized. 53 The main problem of funding the Georgian Orthodox Church is the transparency of spending. 54 The government does not estimate the value of real estates which are granted to the Church, so it is impossible to calculate the extent of the total amount of compensation. 55 Moreover, it should also be noted that the funding and real estates given to the Church are used for non-secular purposes. It is especially a problem on the municipal level, where the spending purposes are often even not declared. 56 50  The current model of funding can be used by governing bodies as an instrument to win favour from the Church through financial support. 57 This model endangers the principle of secular state. 58 Secular governance is one of the basic principles in Georgian public administration; it consists in the separation of political and religious institutions and religion in general. 59 According to some experts, the funding of the Orthodox Church "is only based on the political will of state, which creates a high risk of an arbitrary state in this matter, and it furthermore violates the constitutional principle of secularism". 60 Protection of religious minorities is the basic principle of public service and public governance. It includes not only negative (protective) aspects, but also positive obligations on the part of the state to guarantee the possibility of realizing their religious rights in practice. 61 On the one hand, the government's decision to support the four religious organizations is a very good step forward to creating a religiously tolerant environment, but on the other hand, the criteria and amount of the state funding of these religious organizations are not clear and proportional: 62 "Transferring money to four religious organizations is conducted without fair and objective criteria related to damage." 63 These religious organizations are also treated favourably by the Georgian Orthodox Church, which, by collaborating with them, preserves its privileged position and keeps the status quo on the "religious market". 64 Unlike in the case of the Orthodox Church, control over the expenditure of the four religious organizations is accompanied by a high risk of interference in religious autonomy. 65 Strict accountability and supervision of spending raises strong doubts about the real intentions of the government for controlling religious organizations. 66 Unfortunately, state supervision on spending the money performed on the pretext of "achieving the aims of the agreement" more clearly resembles intensive direct control, where the Agency of Religious Affairs is used as an instrument of controlling daily accounting and financial activities of religious organizations. It is hard not to notice a high risk of infringing on the independence of religious organizations as legal entities; 67 it additionally creates favourable conditions for their political instrumentalization by the government. 68 This undoubtedly violates the principle of church-state separation.

V. CONCLUSION
Social institutions and their influence on society are different in every country. This question cannot be discussed without taking into account aspects of cultural anthropology, sociology and ethno-psychology. The Georgian Orthodox Church has had a significant impact on saving Georgian national identity and continually aspires to play this role. One of the consequences is that the state-church relations are shaped in an untypical way, which is manifested in particular in the system of state funding of religious organizations. Although granting them even "symbolic" and "partial" compensation seems to be a positive move (especially when it is not obligatory), the real purposes of this financial support should not be reduced to exerting control over the most influential religious organizations in the country.
Funding the Georgian Orthodox Church rather resembles an attempt to prevent the Church from acting against the government and to gain its support in many areas of social relations. In contrast, funding of four other largest religious communities of Georgia seems to be an instrument of exerting direct control over them by monitoring their finances and expenses. This can be interpreted as the state's interference in the autonomy of religious organizations and additionally it can also be considered breach of religious freedom.
There are many models of funding religious organizations that are used in the modern world. In many of them, there are no questions regarding religious freedom and secular character of the governmental policy. For example, the Spanish or German tax systems, in which the state is just a mediator or collector of church tax, can serve as points of reference for Georgia as they appear to be more adequate for modern countries. However, these solutions should not include any obligatory "church tax", and every person should be allowed to decide whether to pay it or not. In this postulated model, the Georgian state will accumulate these funds and then distribute them among the religious organizations entitled to receive them. In this way, there would be no preferential treatment and the questions about the non-secular governmental policy or prospective discrimination would not arise. The state would lose its power to influence the churchstate relations in an inappropriate way. Decisions in this regard could only be made by people. Otherwise, every government may try to exert an impact on religious organizations in order to remain the most powerful actor on the national stage.