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Brief summary of this report by lawyer Jarmila Lajcakova

Opinion No 4-2005: The Right to Conscientious Objection, Concordats between EU Member States and the Holy See

December 14, 2005

Summary by Dr. Jarmila Lajcakova, 6 January 2005

The E.U. Network of Independent Experts on Fundamental Rights (“the EU Experts”) is a body set up by the European Commission at the request of the European Parliament. They have prepared an opinion on the Right to Conscientious Objection (outside conscription) and an EU Member State entering into a Concordat with the Holy See, as requested by the European Commission in July 2005. It was initiated due to concerns raised by a number of Slovak and international NGOs in relation to Slovakia’s initiative to sign the historically first concordat with the Holy See in (“the Draft Treaty”) on the Protection of the Right to Conscientious Objection for Roman Catholics.

The EU experts have examined the Draft Treaty from a perspective of human rights standards, as set out in the EU Charter of Fundamental Freedoms, the ECHR, ICCPR and CEDAW. They have observed that none of the existing concordats between EU member states and the Holy See provides protection of conscientious objection in such a degree as this Draft Treaty.

The Draft Treaty extends the right to object to reproductive and sexual health services, education, employment, providing of certain legal services and conscription. Moreover, the opinion notes, the right to conscientious objection as such is not expressly guaranteed in the international human rights law. However, numerous EU member states, in their domestic legal orders, recognize a limited right to be discharged from duties in conscription, reproductive health services (abortion, artificial fertilization, medically assisted contraception) and euthanasia. Some EU member states also discharge from the duties to wed, if persons were found previously divorced, or were of same sex. In general, EU member states regulate and limit the right to object, to prevent infliction on life, health and rights of others.

The EU experts found that the right to object, even if not expressly protected, may be in some instanced understood as a manifestation of one’s conscience or belief protected in international human rights law. However, the right to manifest conscience, including the right to object, is not absolute. An adequate balance must be struck between the right to object and the rights of others.

The Slovak Draft Treaty, would gain a status of an international human rights treaty, which would take precedence over current Slovak laws. This could, in EU experts’ view, greatly influence the interpretation of religious freedom guaranteed in the Slovak Constitution. The Draft Treaty could serve as a legal basis for discharging duties in spheres protected by Slovak courts.

From the perspective of international human rights standards and Slovakia’s existing international obligations, the EU experts raised three serious concerns with the Draft Treaty. First, the Treaty would likely have the most negative impact in the area of reproductive and sexual health services. The EU experts warned that the Treaty failed to strike the necessary balance between the right of medical personnel to object, and rights of women seeking legal reproductive and sexual health services without discrimination. The Treaty moreover fails to impose obligation on the state to ensure reasonable access to these services. Second, the Treaty provides unduly favorable protection to persons of Catholic faith, discriminating people following other religions or beliefs. If the right to object is recognized, it must be guaranteed to all, not only on the basis of Roman Catholic faith. Third, the EU experts raised concerns regarding the status of a joint committee, composed of representatives from Slovakia and the Holy See that should be established pursuant to the Draft Treaty. The EU experts warned that if the interpretation of the treaty by the joint committee affects pending judicial proceedings in which the objection of conscience is invoked, it may be in breach of the right to a fair trial, guaranteed in particular in the ECHR.

Overall, the opinion provides a comprehensive analysis of the right to conscientious objection particularly in relation with the recent initiative of the Holy See to shape new nations through concordats or bilateral treaties. The opinion, prepared by an independent body of international experts, presents a thorough analysis of the impact of the conscientious objection, especially with a perspective for medical and health services. Jarmila Lajcakova, SJD Candidate, University of Toronto



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