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Legal expert: Concordat would threaten women's health in Slovakia

Dr. Jarmila Lajcakova explains what the Draft Treaty on Conscientious Objection would mean for both Slovakia and the rest of Europe. She examines both the original and the revised version. Due to objections by EU human rights lawyers at the end of 2005 this concordat was put on ice, but in 2007 the Church renewed calls to go ahead with it.

Following international protests at the end of April 2005 the Slovak Ministry of Justice made amendments to the Draft Treaty. However, this draft is important, as it shows what the Vatican was originally planning to push through before Slovakia joined the European Union and came under international scrutiny. First Jarmila Lajcakova unpacks the original version to show how it was designed to increase Church power at the expense of women's rights.

Following this she outlines the amended draft concordat which was posted by the Slovak government undated in May or June of 2005. The Vatican is still hoping to get this one through.
 

  End of Women’s Reproductive Health Freedoms in Slovakia:
The Draft Treaty between the Slovak Republic and the Holy See on the Right to Exercise the Objection of Conscience

By Jarmila Lajcakova,
LLB, LLM, SJD, DJS (Toronto)
for Pro Choice Slovakia*
March 2005

Summary

 

Slovakia is about to sign a Treaty on the Right to Exercise the Objection of Conscience with the Holy See. The draft of this treaty has been presented by the Ministry of Justice and will be submitted for approval to the Slovak Government and then for ratification to the Slovak National Council. If approved, the treaty will gain the status of an “international human rights treaty” and will take precedence over current Slovak law. The Treaty, the first in the history of concordats, has the purpose of protecting the “free and unlimited” exercise of the “conscientious objection” based on Catholic teachings of faith in any area regulated by law.

Since the Draft Treaty first and foremost protects the religious rights of state officials, it would effectively make the delivery of state services conditional on compliance with Catholic teaching. Consequently, in the area of reproductive healthcare, all forms of contraception as well as assisted fertilization may become inaccessible. Information about alternatives of safe and effective contraception methods and protection against STD, including HIV/AIDS may become unavailable. Restrictive access to contraceptive services would dramatically confine reproductive and sexual freedom in Slovakia. This may result in an increase of maternal mortality rates, unintended teenage pregnancies, number of unsafe abortions and a spread of STD, including HIV/AIDS.

The overwhelming majority of reproductive healthcare services are sought by women. The Draft Treaty would thus disproportionably burden women. Women will be discriminated against in their access to healthcare. Moreover, women’s right to family planning would be jeopardized. Their access to the relevant information and means to do so would be systematically denied. Such action would be in breach of Slovakia’s own Constitution, in breach of the Charter of Fundamental Rights of the European Union, and in breach of international human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The proposed regulation of the conscientious objection is also in a stark opposition with recommendation on reproductive healthcare policy endorsed by the European Parliament. Moreover, impact of this treaty extends beyond the boundaries of Slovakia and threatens the sexual and reproductive freedoms of women in other EU member states. Similar bilateral “human rights” treaties with EU member states, with close ties with the Vatican would follow.

Respect for religious freedoms has an important place in a liberal democratic state. However, these freedoms shall be accommodated in a manner which does not unreasonably infringe on the rights of others. The right to object should be accommodated through domestic legislation for people with or without religious affiliation. In healthcare, such legislation must ensure availability of a reasonable number of non-objecting providers, whereby the objecting practitioners must refer their patients to non-objecting providers, but they may not decline performing life saving procedures.

This analysis first examines the scope and effects of the Draft Treaty. While focusing on the rights of women, the analysis then examines the legal implications of the Draft Treaty on Slovakia and outlines some implications for the international community.

I. Overview, the Scope and Effects of the Draft Treaty

1. The draft Treaty between the Slovak Republic and the Holy See, on the on the Right to Exercise the Objections of Conscience (hereinafter “the Draft Treaty”) fulfils an obligation stemming from Article 7 of the Basic Treaty between the Slovak Republic and the Holy See signed in 2000 (hereinafter “the Basic Treaty”). [1]

2. Article 7 of the Basic Treaty reads: “Slovak Republic acknowledges everyone’s right to objection of conscience according to the teaching of faith and morals of the Catholic Church. The scope and the terms of the exercise of this right shall be regulated by a separate international treaty concluded between contractual parties.” It must be noted that Article 7 serves as a basis and as a justification for practitioners, nurses and public hospitals to raise unlimited objection of conscience and decline to perform certain procedures relating to reproductive health of women, especially abortions. The Basic Treaty does not directly regulate the rights and obligations of natural and legal persons in Slovakia. It is therefore highly questionable whether it is legal to refuse to decline certain practices in healthcare pursuant to the Basic Treaty without referring to other healthcare provider. Unfortunately, the practice of exercising unlimited conscientious objection on the basis of teaching of faith and morals of the Catholic Church was not comprehensively documented. This practice has not been yet challenged with the Slovak courts.

3. The Draft Treaty asserts that the “the right of everyone to freely exercise the objection of conscience” is associated with “the highest universal human values of mankind” such as human life, human dignity and the meaning of a human life seeking common good” [2] in relation to the freedom of conscience. [3] The Submission Report to the Draft Treaty (hereinafter “the Submission Report”) contends that the Draft Treaty regulates the exercise of a fundamental human right – the freedom of thought, conscience, religion and faith – guaranteed by Articles 24 and 25 of the Slovak Constitution (hereinafter “the Constitution”). [4] The Submission Report characterizes the Draft Treaty as an “international treaty on human rights and fundamental freedoms”, which requires, under Article 7.4 of the Constitution, ratification by the National Council. Pursuant to Article 7.5 of the Constitution, ratified international human rights treaties have precedence over laws in Slovakia. Ratified international human rights treaties have primacy over statutes and regulations with lesser normative force, such as by-laws, but not over the Constitution.

4. The submission report states that this Treaty does not directly regulate rights and obligations of natural and legal persons. The Treaty presupposes implementation in domestic legislation. [5] Nevertheless, because of the status of the Draft Treaty as an international human rights treaty, if ratified, judges will be bound by this treaty. [6] It is uncertain how exactly will this Treaty be applied, but there is definitely the possibility that courts will be able to use it in interpreting legislation.

5. The Draft Treaty defines conscientious objection as an objection that permits anyone to refuse to act, participate in acting or assisting in acting, in a way that is impermissible to his or her conscience according to the teaching of faith and morals of the Catholic Church. [7] The right to exercise the objection of conscience may be invoked in any area to which the Draft Treaty is applicable. The Draft Treaty explicitly enumerates only the following areas: military service, healthcare, education, judicial decision-making and providing legal services, and employment and labour relations. [8] The submission report spells out the following situations where the objection of conscience can be exercised:

a. military – refusing to perform military service [9]

b. health care – refusing to perform or assist in abortion, assisted fertilization, sterilization, proscribing contraception

c. education – refusing to teach sexual education, yoga and agreeing to use assigned textbooks

d. provide legal services by attorneys

e. labour law and employment - refusing to work on Sundays and on days of Catholic religious holidays

f. participate in genocide, illegal execution of combatants, torture, military cruelty and persecution of defenceless civilian population.

Yet, the scope of Article 3.3 (“assisting and participating at acting”) and of the open-ended Article 4 are so broadly drafted that the treaty can include other situations. Those are, for example: refusal to teach on the equality of rights of women and gay people, refusal to pay to health insurance, or refusal to pay taxes, on the grounds that state funds are used for sexual education at public schools, medical training of students for performing acts of abortion or sterilization and funding of research designed to benefit reproductive health or stem cell research in medicine. It must be noted that this provision initially also included the sphere of judicial decision-making, e.g. a refusal to handle divorce cases. The Ministry of Justice, in its amendment in November 2004, removed the reference to the judiciary. However, provision of article 4 is open-ended and can be interpreted to also include judicial decision-making. Finally, provision under letter (f) of this article is illogical and seriously undermines the legal competence of the drafters of this treaty. The purpose of regulating the right to object is to exempt certain groups from general state obligations. No one in Slovakia has an obligation to participate in genocide or torture. These acts are strictly prohibited by the Slovak Constitution as well as international law.

6. According to Article 4 (2) of the Draft Treaty, the Slovak Republic obliges itself to not require the performing of healthcare services as described in article 4.1.b.(see above) from hospitals and other healthcare institutions established by the Catholic Church.

7. The Draft Treaty exempts anyone who exercises the objection of conscience from legal liability for such action. The Draft Treaty does require that the exercise of the objection of conscience “shall not constitute entitlement to any action leading to abuse of objection of conscience”. [10] However, the Draft Treaty does not specify the action to be taken when such abuse occurs. Reading this provision together with Article 6.3 [11] suggests that abuse will be handled according to norms of canonical law as interpreted by the Holy See. At this point it must be noted that the Draft Treaty does not explicitly stipulate the right to object only for Catholics. Rather, “everyone” has the right to object. Yet, this right may be exercised exclusively in the context of the faith and morals of the Catholic Church declared by Magistrate of the Catholic Church. Consequently, it may become a practice by courts to accept that only persons affiliated in the Catholic Church can raise the objection. Objecting by members of other faiths or beliefs can be interpreted by the authority of the Holy See and possibly also by the Slovak Courts as “ungrounded” or “abusive.”

8. According to the initial draft of the Ministry of Justice from 2003, the right to exercise the objection of conscience, as sanctioned by the Draft Treaty, was “free” and “unlimited”. Because of the pressure of other governmental and non-governmental agencies, the Ministry in its 2004 amendment has attempted to “limit” the scope of the conscientious objection. The Ministry has inserted a new provision into article 5, which reads: “The exercise of the right to conscientious objection is implemented within and according to Slovak laws. The limits and manner in which the objection is exercised must respect nature and purpose of the conscientious objection.” In addition, Article 6.2 requires that “the exercise of the conscientious objection cannot threaten human life.”

The limitation the objection of conscience is problematic. With the exception of military service, there is no legislation in Slovakia that would comprehensively regulate the objection of conscience. In healthcare the Ethical code of Medical Workers, allows practitioners to perform or participate at procedures, which are against their conscience as long as it does not threaten life, health and rights of their patients. But the Ethical Code is not a legal act. [12] Moreover, the Draft Treaty, having the status of an international human rights treaty, would take precedence over the Ethical Code. The exercise of the objection of conscience is limited by the Slovak Constitution. However, applicable constitutional rights are broadly and relatively vaguely drafted. The legislature will essentially be asked to interpret the manner in which individual human rights limit the exercise of the objection of conscience. It will be a very lengthy and challenging task. In the meantime, the Draft Treaty will be already in force. The Treaty, with the status of an international human rights treaty, will become the legal basis for raising unlimited objection of conscience. Importantly, the Draft Treaty does not contain any specific provision, stipulating in detail, on legislative protection of individual human rights, including reproductive rights of women. Moreover, as explained below, such legislation will be drafted by a committee composed of members of the Holy See. The Holy See is openly hostile to the concept of reproductive rights. It is difficult to imagine how such a committee would give due account to women’s human rights.

9. The Draft Treaty provides for an “authority of the Holy See” with a mandate, if requested, to interpret the teaching of faith and morals of the Catholic Church. [13] The Draft Treaty specifies neither the legal significance of such an interpretation, nor the circumstances in which the mandate may be given. The wording of the Draft Treaty suggests that any public authority in Slovakia, including the courts, can request the interpretation by the Holy See authority. An extensive reading of this provision suggests that judges may, while deciding cases, follow an interpretation of the Holy See authority and thus indirectly apply canonical law, i.e., the teaching of the Catholic Church.

10. The Draft Treaty introduces a new institution, that of “a joint committee”, which is to be composed of three members from Slovakia and three members from the Holy See. [14] The committee must meet at least twice a year, and its mandate is to monitor and evaluate the implementation of the treaty and submit necessary draft legislation. Moreover, the committee will have the right to interfere in the Slovak legislative process by submitting comments about drafts bills. [15] As such, the joint committee practically enables the Holy See and the Catholic Church to actively participate in the elaboration and interpretation of Slovak legislation.

11. The Draft Treaty will be indefinite. Only an agreement between the contracting parties can terminate the Treaty. Alternatively, the Treaty may be terminated by dissolution of the Basic Treaty. [16] However, the Basic Treaty does not contain any termination clause. Article 25 of the Basic Treaty solely asserts that changes and supplements to the Basic Treaty can be made only upon mutual agreement of the contracting parties. As a general rule, the Vienna Convention on the Law of Treaties stipulates that a treaty can be terminated at any time by consent and after consultation with other contracting States. [17] A unilateral withdrawal when a Treaty does contain any provision regarding its termination and which does not provide for denunciation or withdrawal cannot be subject to denunciation or withdrawal unless parties intended the possibility of withdrawal or the nature of the treaty implies a right of denunciation or withdrawal. [18] Furthermore, a material breach of a bilateral treaty entitles one of the parties to terminate or suspend its operation in part or in whole. [19]

II. General Implications of the Draft Treaty:
Democracy, the Separation of Church and State and the Rule of Law

12. This analysis focuses on the impact of the Draft Treaty on the status and rights of women in Slovakia. However, it is important to understand the broader implications of the treaty, on the character of Slovakia. There is a danger that the implementation of this treaty, would transform Slovakia from a relatively secular state into a state where a single ideology – Roman Catholicism – dominates all public spheres. A clerical state is incompatible with fundamental values of democracy, such as the rule of law and respect of human rights and in particular, women’s equality.

13. The first article of the Slovak Constitution posits the separation of the state and church. [20] The secularism principle prevents the domination of religious teaching in the public sphere. However, the open-ended nature of Article 6 of the Draft Treaty would lead to the intrusion of Catholic teaching into all areas regulated by law. This intrusion would be compounded by allowing religious laws – canonical law – to inform the decision-making process of courts in Slovakia and would violate the principle of impartiality of the courts. Finally, if a person practices a certain religion, or does not practice any religion at all, secularism ensures that state law will not impair a person’s choice. By introducing legal pluralism, the Draft Treaty jeopardizes this requirement. The Draft Treaty would have the effect of imposing qualitatively different levels of protection of fundamental rights and freedoms, according to one’s religious affiliation. [21]

14. Democracy requires that only institutions created by people can be vested with powers to interpret and apply state’s laws. [22] “There can be no democracy where the people of a State, even by a majority decision, waive their legislative and judicial power in favour of an entity which is not responsible to the people it governs.” [23] Existence of an institution controlled by a foreign state, vested with the power to interpret Slovak laws – so-called competent authority of the Holy See – undermines this fundamental prerequisite of democracy. [24]

15. Introducing the teaching of the Catholic faith and morals into the decision-making process of Slovak courts, along with expanding the right to objection of conscience to possibly all public spheres, creates an environment where one’s rights and duties cannot be strictly asserted. The rule of law requires that public authorities act, inter alia, in “a foreseeable manner”. [25] This requirement of legal certainty, in Slovak constitutional theory, among others, compels courts to apply laws. Canonical law, according to an interpretation of the Slovak constitutional court, is not a source of law. [26] In addition, the rule of law requires that everybody is equal before the law and that laws be universally binding. [27] The Draft Treaty weakens this requirement. In Slovakia, the Roman Catholics form an overwhelming majority. The Draft Treaty creates an environment where a majority of the Slovak population can “freely” refrain from obeying laws. Neither democracy nor the rule of law can be equated with majority rule.

16. The Draft Treaty allows objections only on the basis of Catholic teaching. This legal situation discriminates against people with other religious faiths and people without religious affiliation, who cannot refuse to perform certain acts which offend their conscience. The UN Human Rights Committee has indicated that it is in breach of the Covenant on Civil and Political Rights, if a state party guarantees the right to conscientious objection only to one religious group. [28] The state could offer the same degree of protection to these groups and sign treaties with, for example, non-Catholic Churches in Slovakia. However, these treaties would not have the status of “an international human rights treaty”. More fundamentally, signing of treaties with non-Catholic Churches would have very similar consequences for the exercise of individual human rights, the rule of law and the secular character of the state as described in case of the Draft treaty. The administration of conscientious objections based on a specific faith belongs to the community that chooses to follow such a faith, bounded by society’s laws, without threatening the freedoms of a democracy.

III. Impact of the Draft Treaty on the Rights of Women

17. There has been a visible improvement in reproductive and sexual health in Slovakia over the last two decades. We can observe a decline in maternal mortality [29], in the number of abortions and in teenage pregnancies. There has also been a significant improvement in the share of users of prescriptive contraception. This improvement is due, to a large extent, to the introduction of safe, effective, affordable and acceptable contraception methods. According to current legislation, prescriptive contraception, including emergency contraception, IUD, permanent sterilization and abortion up to twelve weeks of pregnancy is legal. [30]

18. The Draft Treaty, if implemented, would have detrimental effects on positive trends in reproductive health in Slovakia. In Slovakia, approximately 70 percent of the population is Roman Catholic. [31] Since the Draft Treaty first and foremost protects the religious rights of state officials, it would effectively make the delivery of state services conditional on compliance with Catholic teaching. If 70 percent of practitioners in Slovakia reproductive healthcare decline to prescribe contraception, perform abortion, or in vitro fertilization, these services will become practically inaccessible. If 70 percent of teachers object to teach sexual education, non-judgmental education about sexuality, human reproduction and sexually transmitted diseases will practically not exist in Slovakia. Reproductive healthcare will not only become inaccessible, but also information about alternatives of safe and effective contraception methods and protections against STD will become unavailable. Restriction on access to contraceptive services may result in an increase of maternal mortality rates, unintended teenage pregnancies, unsafe abortions and STD infections, including HIV/AIDS. [32] Because of the role of the woman in human reproduction, the majority of reproductive health services are sought by women. Therefore, inaccessibility of reproductive healthcare would disproportionately affect women. In particular, those living in rural areas with limited choice of healthcare providers and those, whose ideas about reproductive freedom do not coincide with Roman Catholic teaching. The last category would be likely systematically experiencing multiple indirect forms of discrimination on the grounds of both gender and religion or conscience.

19. Reproductive health “implies that people are able to have a satisfying and safe sex and that they have capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law, and the right to access to appropriate health-care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.” [33] To ensure reproductive freedoms, the UN Committee on the Elimination of Discrimination against Women interpreted that Article 12 of CEDAW (State parties are required to “take all appropriate measures to eliminate discrimination against women in the field of healthcare in order to ensure, on a basis of equality of men and women, access to healthcare services, including those related to family planning”) and article 16 (“women and men have the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights” have following implication for the exercise of the objection of conscience by medical practitioners.

“It is discriminatory for a State Party (to the Convention) to refuse to legally provide for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be ensured that women are referred to alternative health providers.” [34]

The Committee has clearly indicated that it is infringement on women’s reproductive rights if a government fails to ensure access to another non-objecting provider. [35] Slovakia would fail to fulfil its international obligations, if fails to ensure reasonable access of everyone to non-objecting healthcare providers.

20. The Draft Treaty would have detrimental impact on the quality of life of women in Slovakia and their ability to pursue their life in dignity. Restricting access to services that are used solely by women constitute gender discrimination. Effects of the Draft Treaty would therefore be in breach of the Slovak Constitution [36] , the Charter of Fundamental Rights of the European Union, [37] international treaties such as the CEDAW [38] , the International Covenant on Civil and Political Rights [39] and the International Covenant on Economic, Social and Cultural Rights. [40] All these instruments guarantee the freedom from discrimination of women in their access to healthcare. Slovakia would furthermore undermine its political commitments stemming from the Programme of Action developed at the International Conference on Population and Development in Cairo in 1994, and at the Platform for Action adopted at the Fourth Conference on Women in Beijing in 1995. The Draft Treaty is also in a stark opposition to the recommendation adopted by the EU parliament on sexual and reproductive health and rights. [41]

21. Religious freedom has an important place in states based on the principles of democracy, the rule of law and the observance of human rights. Accommodation of religious views such as permitting to object to the performance of certain acts on the basis of religious beliefs does not inherently conflict with these principles. However, protection of the right to object can be achieved in a manner that does not harm individual human rights. The right to object performing certain legal duties is not absolute, but can be regulated by law if it is necessary to protect the fundamental rights of others. [42] Sanctioning of free and unlimited objection of conscience only on the basis of Roman Catholicism would lead to systemic violation of human rights of other individuals. The right to object should be sanctioned by domestic legislation rather than a bilateral treaty. The right to object not should be guarantee not only on the basis of a religious faith, but also on freedom of philosophical, political or other expression. [43] In addition, to satisfy the principle of legal certainty, such legislation must exhaustively enumerate all the situations, in which professionals may decline performance of certain services. The state must ensure that there are enough non-objecting professionals. In healthcare, the legislation must furthermore list following requirements:

a. The right to object belongs to an individual, not to institutions. Hospitals, even those established by religious institutions cannot invoke objection of conscience. Religious hospitals can be exempted from an obligation to perform services they find objectionable. Nevertheless, if a hospital is fully or partially publicly funded, or presents itself to the public, it cannot endanger the lives of patients by refusing to perform certain procedures. Furthermore, it would constitute discrimination if religious hospitals refuse to employ medical and other healthcare staff because they are prepared to participate in all legal reproductive health acre services.

b. Healthcare facilities have a duty to employ adequate number of non-objecting staff or arrange providing of some services with other conveniently accessible provider.

c. Objecting practitioners have a duty to refer patients to a non-objecting practitioner, who is conveniently accessible. If no alternative is available, the practitioner must provide care to save the woman’s life or prevent damage to her health.

d. Nurses can only invoke conscientious objection against direct participation in abortion or sterilization procedures. They cannot decline to provide indirect aid to patients, undertaking these procedures.

e. Hospital administrators and secretarial aids are not instrumental or complicit in healthcare decisions. They cannot invoke objection of conscience.

f. Medical training and educational facilities for physicians and nurses cannot refuse to provide training in certain reproductive healthcare services. Medical students cannot decline to acquire therapeutic or scientific knowledge relevant to their profession, although they may refuse to perform certain procedures under supervision. [44]

In addition the State must ensure that every young person has access to full and non-judgmental sexuality education and to be comprehensively informed about their sexuality, contraceptive methods and sexually transmitted infections including HIV/AIDS.

22. This approach is also endorsed by the European Parliament. The European Parliament recommended that member states safeguard women’s reproductive health and rights by making abortion legal, safe and accessible for all women. Member states should also provide equal access to a range of high quality contraceptives methods. [45] With respect to protection of the objection of conscience, the EU parliament recommended that “in case of legitimate conscientious objection of the provider, referral to other service providers must take place.” [46]

IV. Implications for the International Community

23. The potential implications of a Slovak signing and ratification of the Draft Treaty are not merely local. Indeed, a number of European countries have already concluded concordats with the Holy See, acknowledging their special relationships with the Vatican and the Roman Catholic Church. [47] A Slovak precedent makes room for more discussion about similar treaties on “conscientious objection” with other countries within the EU. Examples of how this Treaty’s conception of “objection of conscience” works in one jurisdiction will undoubtedly draw the attention of other jurisdictions who wish to give the Vatican and the Catholic Church a similar influence in their own jurisdiction. Ideas about women’s rights in other countries could be subsequently challenged on the basis of the Slovak precedent.


References

* Pro Choice Slovakia (Možnosť voľby) was founded in May 2001 to help coordinate several human rights and women’s NGOs in Slovakia. Its main goal is to promote and protect sexual and reproductive health and rights, gender equality, as well as other human rights of women and children.

[1] The Basic Treaty was signed on 24 November 2000, ratified by the National Council of the Slovak Republic (hereinafter the “National Council”) on 4 December 2000 and published in the Official Law Collection under No. 329/2001
[2] Article 2.1 of the Draft Treaty
[3] Article 2.2, ibid.
[4] Article 24 reads:
1. Freedom of thought, conscience, religion and belief shall be guaranteed. This right shall include the rights to change a religion or belief and the right to refrain from a religious affiliation. Everyone shall have the right to express his or her mind publicly.
2. Everyone shall have the right to manifest freely his or her religion or belief either alone or in association with others, privately or publicly, in worship, religious acts, maintaining ceremonies or to participate in teaching.
3. Churches and ecclesiastical communities shall administer their own affairs themselves; in particular, they shall establish their bodies, appoint clericals, provide for theological education and establish religious orders and other clerical institutions from the state authorities.
4. The exercise of rights under paragraphs 1 to 3 may be restricted only by a law, of it is regarding a measure necessary in a democratic society for the protection of public order, health and morals or for the protection of the rights and freedoms of others.
Article 25 reads:
1. The defence of the Slovak Republic is an honourable privilege and duty of citizens. The law shall provide for the extent of military duty.
2. No one shall be forced to performed military service if it is contrary to his or her conscience or religion. A law shall lay down the details.
The Slovak Constitution, Act No. 460/1992 Coll. as amended
[5] Article 5 of the Draft Treaty
[6] Article 144.1 of the Constitution
[7] Article 2 of the Draft Treaty
[8] Article 4 of the Draft Treaty
[9] The refusal to perform military service is already guaranteed by the Slovak Constitution and implemented in Act. No. 207/1995 Coll. on Civilian Service.
[10] Article 6.1 and 6.2 of the Draft Treaty
[11] See paragraph 9, below for more details.
[12] The Ethical Code has a form of an amendment of Slovak Healthcare Bill, Act on Healthcare, 578/2004 Coll. However, provisions of the Ethnical Code cannot be legally challenged with Slovak Courts.
[13] Article 6.3 of the Draft Treaty
[14] Article 7.2., ibid.
[15] Article 7.2., ibid.
[16] Article 9, ibid.
[17] Article 54 of the Vienna Convention on the Law of Treaties of 1966.
[18] Article 56, ibid..
[19] Article 60.1, ibid.
[20] Article 1.1 of the Constitution reads: “The Slovak Republic is a sovereign democratic state governed by the rule of law. It is not bound to any ideology or religion.”
[21] See paragraph 11, above.
[22] Case of Refah Partisi (The Welfare Party) and Others v. Turkey, ECHR, Application Nos. 41340/98,41242/98,41344/98) para 43.
[23] Ibid.
[24] This situation is not comparable with the direct applicability of the norms of the European Union (EU) in Slovakia. Slovakia has not entered into a relationship with the Holy See comparable to the relationship with the EU.
[25] Decision of the Slovak Constitutional Court, PL.US 15/1998 of 11 March 2001.
[26] Decision of the Slovak Constitutional Court, PL. US. 64/00-65 of 31 January 2001, at 8.
[27] Ján Drgonec, Ústava Slovenskej republiky: komentár (Bratislava: Heuréka, 2004) at 31. (Constitution of the Slovak Republic: Commentary)
[28] Decision of the UN Human Rights Committee, Coeriel and Aurik v. The Netherlands (453/1991), ICCPR, A/50/40 vol. II (31 October 1994) 21 (CCPR/C/52/D/453/1991) at para. 10.5 See also General Comment No.22 :The Right to Freedom to Freedom of Thought, Conscience and Religion (Art.18): 30/07/93, CCPR/C/21/Rev.1Add.4, para 11.
[29] Ratio of maternal mortality rate is estimated to be 14 maternal deaths per 100,000 live births, which one amongst the lowest in Central and Eastern European region and is close to the average mortality of “old” EU member states. (cca 6.6 ) Data is available in Rebecca J. Cook, Bernard M. Dickens, and Mahmoud F. Fathalla, Reproductive Health and Human Rights (Oxford: Clarendon Press, 2003) at 406 ff. For other reproductive health data, see World Health Organization Regional Office for Europe, European Commission, Highlights on Health in Slovakia, WHO, 2001.
Available at: http://euro.who.int/Document/e74341.pdf (last visit: 2005-01-10).
[30] According to the law, “the law shall regulate the artificial termination of pregnancy and shall establish conditions for the performance thereof with due regard to protection of the life and health of the woman and in the interests of planned and responsible childbirth.” The law states that “a pregnancy shall be artificially terminated if the woman makes a written request to this effect, the pregnancy has not passed the twelfth week, and there are no contraindications on health grounds.” Act No. 73/1986 Coll. On Artificial Termination of Pregnancy.
[31] Data of the Slovak Statistical Office, according to public census of 2001, online through website of the Slovak Statistical Office at http://www.statistics.sk/webdata/slov/scitanie/tab/tab4a.htm.
[32] See generally on effects of restrictive family planning policies on women’s health e.g. Elisabeth Ahman & Iqbal Shah, Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality 4th ed. ( Geneva: World Health Organization, 2004);
[33] UN, department of Public Information, Platform for Action and Beijing Declaration. Fourth World Conference on Women, Beijing, China, 4-15 September 1995 (New York: UN, 1995) para.94.
[34] Committee on the Elimination of Discrimination against Women, General Recommendation 24: Women and Health , CEDAW, General Recommendation 24, UN GAOR 1999, Un Doc. A/54/38 /Rev. 1, para 11
[35] See Committee on the Elimination of Discrimination against Women, Observation on Croatia,14/05/98, U.N. Doc. A/53/38 para 109.
[36] Article 12 (2) of the Constitution guarantees basic rights and freedoms to everyone regardless of, inter alia, sex and gender. According to the Constitution, the right to the protection of health and the right to healthcare are basic rights.(article 40). The Slovak Constitution, 460/1992 Coll.
[37] Read Article 21 (prohibition of any discrimination on the grounds of sex) in conjunction with Article 35 (the right to access to preventive healthcare, the right to benefit from medical treatment)
[38] See Article 12, cited at 8, above. Slovakia has ratified CEDAW by succession as of 1January 1993.
[39] See Article 26 of the Covenant prohibiting discrimination of the grounds of sex in any public sphere. Slovakia has ratified the Covenant on Civil and Political Rights by succession as of 1 January 1993.
[40] Read Article 2 of the Covenant, prohibition of discrimination on the grounds of sex of rights guaranteed in the Covenant in conjunction with Article 12, the right to highest attainable standard of health. See also general recommendation of the Committee on Economic, Social and Cultural Rights, The Right to the Highest Attainable Standard of Health, CESR, General Comment 14, UN ESCOR 2000, UN Doc. Slovakia has ratified the Covenant on Economic, Social and Cultural Rights by succession as of 1 January 1993.
E./C.12/2000/4, 11 August 2000, see esp. paras. 12, 14, 18, and 21
[41] The European Parliament resolution on sexual and reproductive health and rights (2001/2128 (INI)), June 2002, A5-0223/2002. at 9.(hereinafter “The EU parliament resolution”)
[42] According to the Slovak Constitution, the right to conscience is not absolute and can be limited by law, “if a measure is necessary in a democratic society in the interests of public safety, for the protection of public order, health, morals or morals, or for the protection of the rights and freedoms of others.” Article 24 para 4 of the Constitution, see also ECHR article 9 para 2. The Constitutional Court held that the same applies also to the right to object to military service, guaranteed in Article 25 of the Constitution. See decision of the Con. Court. PL. US. 18/95 of 24 May 1995.
[43] Cook, Dickens & Fathalla, supra note 29 at 139.
[44] See ibid. at 139-142, B. M. Dickens & R.J. Cook, “The Scope and Limits of Conscientious Objection” (2000) International Journal of Gynecology & Obstetrics 71-77; provision of CEDAW General Recommendation 24, cited at 8, The EU Parliament resolution, supra note 41 at 9.
[45] The EU Parliament resolution, ibid. at 8 - 9.
[46] Ibid. at 9
[47] Those are for example, Austria, Belgium, the Czech Republic, Croatia, Germany, Hungary, Ireland, Italy, Latvia, Luxemburg, Poland, and Portugal.

 

The Draft Treaty on the Exercise of Objection of Conscience between Slovakia and the Holy See: most recent developments [1]
 

[Concerning the amended draft of May or June 2005]  

Jarmila Lajcakova
SJD Candidate, Faculty of Law, University of Toronto


The Slovak Ministry of Justice has made further amendments to the Draft Treaty on the Exercise of Objection of Conscience with the Holy See in May/June 2005. [2]

The new amendments narrow the scope of the draft treaty in four important aspects:

1.   Article 4(1) of the Draft Treaty that sets up the scope of the protected conscientious objection is no longer open-ended. The draft treaty would be therefore applicable only to enumerated areas of health care, military service, education, providing of legal services and labour law.  The drafters furthermore abrogated the provision concerning participation in genocide, illegal execution of combatants, torture, military cruelty and persecution of defenceless civilian population.

2.   The right to exercise the conscientious objection was also limited by including a provision in Article 6(2) that prohibits exercising of objection of conscience that endangers human health. [3]

3.   The amended version of the draft treaty altogether abolished dubious provision of Article 6 (3). The provision provided the Holy See with a mandate “to provide an interpretation of the teaching of faith and morals of the Catholic Church, if requested.”

4.   The joint Slovak-Vatican committee, as set out in Article7, has been explicitly specified as having merely “advisory” status. This importantly reduced the ability of the Vatican to interfere into Slovak domestic legislative process.

In addition, the amended draft includes the following changes:

1.   The provision of Article 2(1) [4] recognizing human life and dignity as the highest universal values has been moved from the operative text of the draft treaty into Preamble. This provision may serve merely as guidance in the interpretation of the draft treaty.

2.   The new amendment included other several stylistic and grammatical modifications that do not affect subject matter of the draft treaty.


Despite the above amendments the draft treaty remains problematic, inter alia, for the following reasons:

1.   Slovakia fails to ensure that the right to object will be guaranteed to everyone, regardless of their faith or belief.

2   It remains unclear what is the status of the treaty in Slovakia; i.e. whether the treaty takes precedence over Slovak laws.

3.   It fails to balance between the right to object and (human) rights of other individuals (i.e. the right to health care, education etc.). The right to object should not unreasonably interfere with the rights of others.

4.   It fails to specify obligations of individuals raising the objection of conscience in more detail (e.g. the duty to refer to another practitioner in medical setting, obligations to ensure access to reproductive health care services etc.)

5.   Slovakia continues to erode the one of the fundamental principles of democracy, the separation of church and state

Overall, the draft treaty remains a redundant and unconventional method of protecting the right to object. The right to object can be guaranteed in a less problematic manner directly in the Slovak legislation. The existence of a bilateral treaty with the Vatican merely give rise to suspicions of the true intentions of the Vatican and Christian Democratic Movement party in Slovakia, the sponsor of the draft treaty. Moreover, the Ministry of Justice is yet to justify why the right to manifest religion or belief should be extend beyond the existing legal recognition of the right to object in military service and in relation to some health related duties. [5]


Notes

[1] As of October 11, 2005
[2] This version of the Draft Treaty, posted on the web site of the Slovak Ministry of Justice does not include a specific date of the proposal or the date when it was posted on the web. According to my best belief it was some time in May or June 2005. See the amended draft treaty in Slovak here http://www.justice.gov.sk/wfn.aspx?pg=l12]  (accessed October 10, 2005).
[3] In original proposals from 2003 this provision limiting conscientious objection was not included at all. In November 2004 draft, the drafters limited the exercise of conscientious objection only to acts that do not endanger “human life”.
[4] “The Slovak Republic and the Holy See acknowledge human life, human dignity and the meaning of a human life seeking common good as the highest universal values of humankind, which values require protection from loss or endangerment, as well as from restrictions of their development and their passing on.”
[5] The right to object is in Slovakia constitutionally guaranteed only with respect to conscription. (Article 25(2) of the Slovak Constitution, Act. No. 460/1992 as amended.) In healthcare the Ethical code of Medical Workers, allows practitioners to perform or participate at procedures, which are against their conscience as long as it does not threaten life, health and rights of their patients. But the Ethnical Code is not a legal act. (The Ethical Code has a form of an amendment of Slovak Healthcare Bill, Act on Healthcare, 578/2004 Coll. However, provisions of the Ethnical Code cannot be legally challenged with Slovak Courts.)


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