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Concordat on the Right to Conscientious Objection: Draft text (2004) and Submission Report

The "conscience concordat" was called by the liberal ANO party the "discrimination treaty". It would commit the Slovak government to protect only the strict scruples held by a small minority of the most conservative Catholic, and to let these override any other type of conscience, including that of liberal Catholics. In fact, EU lawyers warned that the claims of "Catholic conscience" as put forth here could even take precedence over certain human rights.

The provisons of any Slovak concordat can also override domestic legislation. This is due to the Precedence Clause, Article 7.5 of the Constitution of the Slovak Republic, an amendment to the Constitution brought in to give concordats precedence over the laws of Slovakia, because they are considered to be human rights treaties.

Two documents below concern the draft concordat in Slovakia on the right to exercise objections of conscience. After having being put on ice due to an international outcry, its provisions are now being introduced by way of national law. And the Vatican is once more pressing for it, on the grounds that Slovakia committed itself to a "conscience concordat" in the first agreement back in 2000.

1. The Submission Report "explains what the deal is all about". [1] It sets out the general principles that are implicit in the concordat. For instance, [Catholic] conscience is to be exercised (on others) free of all legal responsibility for any damage done. And the "meaning of human life" is not to be sought in the "individual good" which happens to be the basis of human rights. (Key statements like these have been placed by Concordat Watch in bold italics.)

2. The Draft Treaty of 5/11/2004 puts teeth into Article 7 of the 2000 “Basic Treaty” which says, “The Slovak Republic acknowledges everyone’s right to objection of conscience according to the teaching of faith and morals of the Catholic Church“. Article 6 even grants legal immunity to those acting in accordance with Church doctrines. As Prof. Alexander Rehák notes, this amounts to the indirect application of Canon Law, (Church doctrine) and would mean replacing some parts of Slovakian legal system by Canon Law.
 

Submission Report

I.

The Basic Treaty between the Slovak Republic and the Holy See of November 24, 2000 (N° 326/2001 Coll.) presupposes in Article 7 the conclusion of a separate international treaty, by which treaty the parties shall regulate the scope and the terms of exercise of the right to objection of conscience. For this purpose, expert negotiations between representatives of the Ministry of Justice of the Slovak Republic and the Conference of Bishops of Slovakia took place on March 11, 2003 and April 3, 2003. Both parties presented the principles of the future treaty. The negotiations brought about a draft of the Treaty between the Slovak Republic and the Holy See on the exercise of objection of conscience. Representatives commissioned by both parties have worked together to resolved outstanding issues. The draft Treaty will be the first treaty document in the respective area in the history of concordats concluded between the Holy See and other countries.

 

The freedom of conscience represents the supreme expression of human dignity, as only on the basis of free acting and decision-making of universal benefit can a person pursue his or her own fulfilment and realise the meaning and the goal of his or her life. A human life is acknowledged as the primary universal value, since it is the basic condition for human actions and human experience, for the functioning of human relations and, at last, for the achievement of a common good, which constitutes the meaning of human existence. Therefore, everybody should have a natural right to exercise the right to objection of one’s conscience in relation to these paramount values. The objective of the submitted Treaty is to provide the right to refuse any such action that would lead to loss of a human life, its endangerment, restriction of its development and passing on, or which would degrade human dignity or would prevent a person from realising the meaning of his or her life. The draft Treaty is based on Article 24 of the Constitution of the Slovak Republic, which stipulates the freedom of conscience, and on the teaching and morals of the Catholic Church.

II.

The draft Treaty consists of a Preamble and 10 articles.

In the Preamble, both parties of the Treaty confirm and express their will to protect and promote human rights and fundamental freedoms, such as the freedom of thought, freedom of religion and faith, and the freedom of conscience with regard to human life, human dignity and the meaning of human life.

Article 1 states the goal of the draft Treaty, which is to secure the right to free exercise of objection of conscience, while the subsequent Article 2 defines the scope of this right, which lies in its protection from loss, endangerment, restriction of development and of passing on of a human life, human dignity and the meaning of human life pursuing common (not individual) good.

 

The freedom of conscience represents the supreme expression of human dignity, as only on the basis of free acting and decision-making of universal benefit can a person pursue his or her own fulfilment and realise the meaning and the goal of his or her life. A human life is acknowledged as the primary universal value, since it is the basic condition for human actions and human experience, for the functioning of human relations and, at last, for the achievement of a common good, which constitutes the meaning of human existence. Therefore, everybody should have a natural right to exercise the right to objection of one’s conscience in relation to these paramount values. The objective of the submitted Treaty is to provide the right to refuse any such action that would lead to loss of a human life, its endangerment, restriction of its development and passing on, or which would degrade human dignity or would prevent a person from realising the meaning of his or her life. The draft Treaty is based on Article 24 of the Constitution of the Slovak Republic, which stipulates the freedom of conscience, and on the teaching and morals of the Catholic Church.

II.

The draft Treaty consists of a Preamble and 10 articles.

In the Preamble, both parties of the Treaty confirm and express their will to protect and promote human rights and fundamental freedoms, such as the freedom of thought, freedom of religion and faith, and the freedom of conscience with regard to human life, human dignity and the meaning of human life.

Article 1 states the goal of the draft Treaty, which is to secure the right to free exercise of objection of conscience, while the subsequent Article 2 defines the scope of this right, which lies in its protection from loss, endangerment, restriction of development and of passing on of a human life, human dignity and the meaning of human life pursuing common (not individual) good.

Article 3 defines the expressions and terms used in the draft Treaty. “Objection of conscience” is understood as resistance and protest (expression of disapproval) of conscience with respect to actions, which are incompatible with the teaching of faith and morals of the Catholic Church.

Article 4 enumerates examples of areas and activities, in which the exercise of objection of conscience is made applicable. Such areas include primarily activities in armed forces and armed corps, especially the refusal to perform military service and the opportunity to perform civil service (Act N°207/1995 Coll. on Civil Service). Provision of health-care services is another significant area, in which it is permitted to refuse to perform abortion (Act N°73/1986 Coll. on Abortion) and artificial or assisted fertilisation, and to experiment, and dispose of, human organs, human embryos and human sex cells. It also covers activities such as euthanasia, cloning, sterilisation and contraception (Act N°277/1994 Coll. on Health Care). Another important area relates to educational activities where it is permissible to refuse to teach certain subjects (sexual education, yoga) or to employ assigned textbooks (Act N°29/1984 Coll. on the System of Elementary and Secondary Schools). It is also possible for judges to refuse to handle divorce cases (Act N°335/1991 Coll. on Courts and Judges), and for other legal professions to provide legal services (Act N°132/1990 Coll. on Advocacy and Act N°233/1995 Coll. on Legal Executors and the Activities of Execution). Other possible areas where the exercise of objection of conscience applies include labour relations, such as the refusal to work on Sundays or on the days of religious holidays (Labour Code N°311/2001 Coll.).

The provision of Article 5 anchors a commitment of the Slovak Republic to regulate in each of the relevant legal acts the detail terms of a more efficient exercise of the freedom of conscience.

Article 6.1 and 6.2 set forth the basic principles of the exercise of objection of conscience, namely the following: exclusion of legal responsibility (liability) for actions based on the objection of conscience, and impermissibility of actions leading to the abuse of the objection of conscience.

Article 7 regulates the standard issue of resolution of disputes arising in relation to the interpretation and implementation of the Treaty by providing for consultations. It also establishes a joint committee for the implementation of the Treaty.

Articles 8 through 10 regulate the issues of amending the submitted Treaty, its coming into effect and its termination, i.e. issues of standard use in the practice of international law.

III.

The draft Treaty regulates issues associated with the freedom of conscience, religion and faith as well as the right to life; it is thereby an international presidential treaty on human rights pursuant to Article 7.4 of the Constitution of the Slovak Republic, which requires approval by the National Council of the Slovak Republic prior to its ratification by the President of the Slovak Republic pursuant to Article 86 (d) of the Constitution of the Slovak Republic. Consequently, the draft Treaty is an international treaty pursuant to Article 7.5 of the Constitution of the Slovak Republic, having precedence over laws.

Pursuant to Article 10.1 of the Principles of the Government of the Slovak Republic for the Area of International Treaties (approved by the Resolution N°615 of 26 August 1997) the submitted document was subject to an assessment both by the relevant ministries and by other entities.

The Legislative Council of the Government of the Slovak Republic deliberated on the submitted document on ....... .

The submitted document does not have any financial, economic or environmental impact or an impact on employment.
 

Draft 5 November 2004

Treaty
between the Slovak Republic and the Holy See on the Right to Exercise Objection of Conscience

 

The Slovak Republic and the Holy See,

Respecting the freedom of conscience in protecting and promoting values affecting the meaning of human life,

Emphasizing this respect with regard to the freedom of thought, religion and faith,

Expressing their will to protect and promote the right to human life, human dignity, human physical integrity, human biological and psychological identity,

Referring to the commitments arising from the Basic Treaty between the Slovak Republic and the Holy See signed in Vatican on November 24, 2000 (hereinafter the “Basic Treaty”),

and the Slovak Republic, on the basis of the Constitution of the Slovak Republic, and the Holy See, on the basis of the teaching of faith and morals of the Catholic Church,

have agreed as follows:

Article 1

The Slovak Republic shall regulate in its legal system the details of the exercise of the right to objection of conscience.

Article 2

1. 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.

2. The Slovak Republic and the Holy See acknowledge the freedom of conscience with respect to values set forth in Section 1, and the right of everyone to freely exercise objection of conscience with respect to these universal values.

Article 3

1. For the purposes of this Treaty, “teaching of faith and morals” means the body of teaching of the Catholic Church.

2. For the purposes of this Treaty, “objection of conscience” means an objection raised on the basis of the principle of free conscience according to which anyone may refuse to act in a way, which he in his conscience finds impermissible by the teaching of faith and morals.

3. “To act” includes participation at acting, and any action, related to such acting, including assistance.

Article 4

The right to exercise the objection of conscience applies especially to the following areas and activities:
a. activity in armed forces and armed corps, including performance of military service, according to the Slovak Constitution,
b. health-care activity, especially as regards abortion, artificial or assisted fertilization, experiments with, and disposal of, human organs, human embryos and human sex cells, euthanasia, cloning, sterilization and contraception,
c. educational activity, especially activity relating to Articles 12 and 13 of the Basic Treaty,
d. judicial decision-making and provision of legal services,
e. employment and other related labour relations, as well as other relations the content of which applies to the subject matter of this Treaty,
f. acting related to genocide, execution of captives without lawsuit, torture, soldierly cruelty and persecution of defenceless civil population.

Article 5

The Slovak Republic shall regulate in its legal system the details of the exercise of the right to objection of conscience.

Article 6

1. Action on the basis of objection of conscience pursuant to this Treaty prevents anyone exercising this right from becoming liable for such action.

2. The right to exercise objection of conscience according to this Treaty shall not constitute entitlement to any action leading to the abuse of objection of conscience. Misuse of objection of conscience does not deprive of legal responsibility. Exercises of objection of conscience must not endanger a human life.

3. The Holy See shall through its competent authority provide an interpretation of the teaching of faith and morals of the Catholic Church, if requested.

Article 7

1. The Parties shall resolve any contested issues relating to the interpretation or the implementation of this Treaty by means of mutual consultation.
2. The Slovak Republic and the Holy See shall establish a joint committee for the implementation of this Treaty. Each Party shall have three members of the joint committee, which shall meet at least twice a year, or at any time when one of the Parties so requests. The role of the joint committee shall be especially:
a. to assess areas and the different activities to which objection of conscience applies,
b. to submit comments to drafts of generally binding legal acts, and to drafts of legislative measures necessary for the protection of the right to exercise objection of conscience as well as for the prevention of its abuse,
c. to evaluate the implementation of this Treaty,
d. to submit proposals for amendments to this Treaty.
The activity of the joint committee shall be governed by its statute of proceedings.

Article 8

This Treaty may be amended on the basis of a joint written agreement between the Parties.

Article 9

This Treaty is concluded for an indefinite period of time, and it shall terminate either by a joint agreement of the Parties or by the date of termination of the Basic Treaty.

Article 10

This Treaty is subject to ratification, and shall come into effect as of the date of the exchange of ratification instruments.

 


Signed at ……, on …..., in two originals, each in Slovak language and Italian language, with both wordings having equal force.

For the Slovak Republic:
For the Holy See:

 

Notes

1, Katarína Zavacká, "Návrh zmluvy medzi Slovenskou republikou a Svätou stolicou. Príčiny snáh o uzatvorenie tejto zmluvy a následky aké by vznikli po jej uzatvorení pre občanov Slovenska", FOS - Fórum občianskej spoločnosti, 2000, No.11. pp.14- 18.

 

 


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