Draft Concordat of 1991: Text and commentary

Commentary by Czesław Janik, Institute of Political Sciences, University of Warsaw and president of the “Polish Association for an Ideologically-Free State, Neutrum”. This secularist association was founded in September 1990 in response to the introduction that month of Catholic catechism into state schools and “anxiety over the consequences of that decision” (which has turned out to be well-grounded).

Before [the fall of Communism in] 1989 talks with the Vatican resulted in two documents: 1) the Act on State Relations with the Catholic Church, approved by the Sejm in May 1989 and 2) a Convention, to come into force at the same time.  The political turbulence of 1989 created the conditions that gave the Church an excuse to withdraw from the previously agreed provisions of the Convention.  The main argument used at the time by the bishops for the rejection of the agreed text were the changes that followed in the social and political climate, to which the Church “wanted” to adjust.  The Convention was deemed non-existent. (Nota bene, how does this stand with regard to the principle pacta sunt servanda, so often recalled by the apologists of the Concordat during Sejm debates? This was which intended to facilitate writing into the Act an agreement for the President to ratify the document, and at the same time to suggest that if the Concordat of 28 July 1993 did not come into force, it would be the Government’s fault.)

In 1991, after the Ambassador of the Vatican, Nuncio J. Kowalczyk, was installed in Poland, the Polish people were informed of the reopening of talks about an agreement with the Vatican.  The nuncio was said to have brought from the Vatican a proposal regarding normalisation of relations between the Republic of Poland and the Holy See.  This was a half-truth.  Yes, talks were reopened, but the negotiations were not continued, but started from scratch.  The responsibility for the wasted time and for considering the previous Convention of 4 May 1988 non-existent rests squarely with the Church side, for it was they who declared the signed document non-existent and unfit for the new order.  Thus the Church side ignored the principle of pacta sunt servanda, mentioned earlier.

Those were peculiar talks, for no one – apart from the members of the so-called government delegation, who were all Catholics! – was able to get anywhere near the project of the agreement.  Unable to see the documents, those same members of parliament, after the signing of the Concordat, without the slightest opportunity to participate in deciding its contents, were to agree to the ratification of the document!  [Also] unable to find out the contents of the document were the lay Catholics whose lives were to be directly affected by it.
 

[Draft concordat, 1991]

with a view to establishing lasting mutual relations,

having taken into account the constitutional principles and laws of the Republic of Poland, and the documents of the Second Vatican Council with regard to religious freedom and relations between the Church and society, as well as the norms of Canon Law,

have decided to enter into this present Concordat.

Article 1

The Republic of Poland, having taken into account that the Catholic religion has been practised by a large majority of the Polish people, and that the Catholic Church, from the earliest history of the Polish state, has made an irreplaceable contribution to the creation of conditions necessary for the development of the individual person as well as the national community, reflects this in its legislation.

Article 2

The Republic of Poland and the Holy See reaffirm that the State and the Catholic Church are, each in its own domain, independent and autonomous, and that they are fully committed to respecting this principle in all their mutual relations and in co-operating for the benefit of humanity and the good of the community.

Article 3

In order to maintain and strengthen the ties between the Contracting Parties, the Apostolic Nuncio shall reside in Warsaw and the Polish Ambassador Extraordinary and Plenipotentiary to the Holy See shall reside in Rome.

Article 4

1. The Republic of Poland recognises the public and legal status of the Catholic Church.
2. The Republic of Poland also recognises the legal status of all ecclesiastical institutions, land and personnel, who are deemed so according to the norms of Canon Law.
3. Other ecclesiastical institutions acquire legal status when the Church authorities inform the appropriate state authorities of their canonical appointment.

Article 5

Respecting the right to religious freedom, the State shall guarantee the Catholic Church, irrespective of rites, the free and public exercise of its mission and jurisdiction, as well as the exercise of its management and administration of its own affairs in accordance with Canon Law.

Article 6

Only the proper competent ecclesiastical authorities shall set up appropriate Church structures, particularly with regard to the establishment, alteration and elimination of ecclesiastical provinces, archdioceses, dioceses, apostolic administrations, personal and territorial prelacies, territories of abbacies, parishes, monastic institutions and societies dedicated to the apostolic way of life, as well as other ecclesiastical legal entities.

Article 7

1. The appointment of archbishops, bishops, and other ordinaries, equal under Canon Law to diocese bishops, and their recall, resides exclusively with the Holy Father.
2. The Holy See shall provide the names of diocesan bishops to the Government of the Republic of Poland prior to a public announcement of the appointment.
3. The appointment, selection or recall of persons representing the remaining legal entities listed in article 6 shall be conducted exclusively on the basis of Canon Law.

Article 8

1. The Republic of Poland guarantees the Catholic Church the freedom to conduct religious services in accordance with Article 5 of this Convention.
2. The organisation of public services falls within the competence of Church authorities, in accordance with the instructions of the Holy See.
3. The State guarantees the inviolability of places designated for religious services.  Only the competent Church authorities can designate such places for other purposes.
4. The exercising of public worship in places other than those mentioned in Paragraph 3 shall not require permission from civil authorities. The exercising of worship on public squares and roads shall require a prior notification of the competent secular authorities.

Article 9

The State considers the following days as free from work, in addition to Sundays and Church holidays guaranteed in Poland to be free from work by statute:
     Epiphany
     Ascension
     Feast of Saints Peter and Paul
     Feast of the Immaculate Conception

Article 10

1. Pastoral care for Catholic professional soldiers and those in active military service shall be provided by the Bishop in Charge of Military Chaplains in accordance with the statutes approved by the Holy See.  The statutes also list other persons entitled to this care.
2. Priests and deacons, as well as alumni of seminaries, novices and those who have taken their vows in institutes of monastic life and associations of apostolic life, are exempt from the compulsory military service.
3. In case of a general mobilisation the ecclesiastical authorities will nominate additional priests to serve in the military chaplaincy; including deacons, seminarians of higher ecclesiastical institutions and members of monastic institutions and groups of apostolic life to serve in medical corps.

Article 11

1. The State recognises the legal effect of a marriage contracted according to the provisions of Canon Law provided is has been registered in a civil register.  Preparation for the celebration of marriage according to Canon Law shall involve instructing the spouses on the legal provisions of Polish law concerning the effects of marriage.  Within seven days from the solemnisation of the marriage the parish priest, or his deputy, shall, at the request of the spouses, forward to the State Civil Register notice of the contracted marriage in order to enter it in a civil register.
2. The registrar who has been notified by the competent Church authorities of a contracted marriage has a duty to enter the marriage in the civil register within 3 days and inform those authorities of the entry.
3. Matrimony according to Canon Law shall be subject to civil effects from the moment of solemnisation, even if the registrar entered the marriage in the civil register after the prescribed time.  It shall not be allowed to enter the marriage in the civil register if there is a legal obstacle between the spouses.
4. Ecclesiastically valid decisions proclaiming the invalidity of a marriage, issued by Church tribunals and bearing ecclesiastical executive decree, as well as a papal dispensation from unconsummated marriage, are considered valid under civil law.
The competent Church authorities shall forward the notification of a decision or a dispensation to the appropriate Civil Register Office in order to amend the entry in civil register.

Article 12

1. The State shall guarantee that the system of education of children and young people will take into account the Christian values and ethics which have been a part of the Polish heritage, and an inalienable right of parents to the religious education of their children in schools, without any discrimination against persons of other religions or none.
2. In preschools and state schools of all status and level, religious education is a part of a curriculum equal to other subjects.  The programme of religious education is set by ecclesiastical authorities.  Parents or legal guardians decide whether their child shall attend religious education classes until he or she comes of age, when he or she makes the decision.
3. The competent Church authorities appoint and recall religious teachers in schools.  Religious teachers shall have the same rights and duties as other teachers; they also participate in staff meetings.
4. The Catholic Church shall have a guaranteed right to catechise in schools of higher education, universities, and student halls of residence.

Article 13

1. The Catholic Church shall have the right to establish and run schools of every kind and of all levels that will have equal rights with state schools, as well as institutes for the education and bringing-up of children.
2. In realisation of their curriculum and awarding of official certificates, schools referred to in Paragraph 1 shall be subject to the Church and the state laws.
3. Teachers, tutors, and administrative staff, as well as pupils of the schools and institutes referred to in Paragraph 1 shall enjoy the same rights and entitlements as their state school and institute counterparts.
4. The schools and institutes mentioned in paragraph 1 shall be subsidised by the State (regional autonomous bodies) equally with state schools.

Article 14

1. The Republic of Poland shall guarantee the Catholic Church the right to establish and freely manage universities, academies, departments of philosophy and theology, seminaries and other scientific and teaching establishments.
2. The legal status of universities, academies, departments of philosophy and theology mentioned in Paragraph 1, as well as Catholic theological faculties within state universities, along with the conditions and terms of recognition by the State of degrees and ecclesiastical academic titles, are regulated by agreements between the Ministry of Education and the Episcopal Conference of Poland, with prior approval of the Holy See.
3. The papal academies, Catholic universities and departments of philosophy and theology shall be subsidised by the State equally with other state higher education establishments.

Article 15

1. Persons under arrest, prisoners, children and young persons in corrective institutions and people in medical and social care institutions are guaranteed the right to practise their religion and to receive religious care.  In particular they are guaranteed the opportunity to attend Holy Mass on Sundays and to participate in religious instruction and retreats.
2. For Catholic children and young people who take part in summer holiday camps, young people’s camps and other forms of collective vacationing, religious practice shall be guaranteed and, in particular, participating in Holy Mass on Sundays and other holy days.
3. For ensuring the rights of people referred to in Paragraph 1, diocese bishops will direct chaplains, with whom the proper institutions will make appropriate agreements.

Article 16

The lay and clerical faithful shall have the right to form Catholic associations, private and public, according to the provisions of Canon Law.  These associations are not subject to civil laws on associations.  They acquire legal status through an entry into a court register of associations or they lose such status on the basis of a proper document forwarded to a civil court by the competent Church authority.

Article 17

1. The Republic of Poland shall guarantee the Catholic Church and its legal and physical persons the freedom of contact and communication among themselves, with Holy See, with Episcopal Conferences and  with local churches as well as with other associations, institutions, organisations, and persons within the country, and abroad.
2. The Catholic Church shall have the right to print, publish and freely disseminate the Bible, liturgical texts, the code of Canon Law and Holy See documents, and other publications pertaining to its mission.

Article 18

The Catholic Church shall have the right to possess and make use of all means appropriate for social communication, and also to broadcast programmes over public radio and television, in accordance with norms established by agreement between the competent State and Church authorities.

Article 19

The proper ecclesiastical institutions shall have the right, each according to its relevant nature, to carry out missionary, charitable and welfare activities.  For these aims, they may set up organisational structures and raise public funds.

Article 20

Legal ecclesiastical persons shall have the right to acquire, possess, utilise and dispose of both moveable and immoveable property, as well as to acquire and dispose of other rights, and to manage their property.
They may also acquire assets and property rights by legacy, bequest, donation and life estate.

Article 21

The Church shall have the right to build sacred and ecclesiastical buildings, and also cemeteries, in accordance with building and sanitary regulations.  The decision to build a church or establish a cemetery shall be made by the diocesan bishop or a competent ordinary and a site shall be agreed with the competent authorities.

Article 22

Ecclesiastical juridical persons have the right to establish foundations, which cannot be abolished with the agreement of Church authorities.  In the case that such foundations are abolished, their assets shall belong to the aims or persons described in their statutes.

Article 23

Matters requiring new or additional solutions shall be regulated by means of new agreements between the Contracting Parties or by understandings between the competent State authorities and the Episcopal Conference of Poland with the prior authorisation of the Holy See.

Article 24

The Contracting Parties shall try to resolve through diplomatic channels any prospective divergences of interpretation or application of the provisions made in this current Concordat.

Article 25

The provisions of this Concordat replace the provisions of the Concordat of 10.02.1925 and become a part of the Church and State legislative system.

Article 26

This current Concordat shall be subject to ratification and shall come into force not later than …. In witness whereof the Plenipotentiaries of the Contracting Parties have undersigned this Concordat.

This Concordat was drawn up in ……., on the ……,  in duplicate (original copies each in Polish and Italian), both texts are equally authentic.
 

Source:

„Konkordat Polski 1993. Wybór materiałów źródłowych z lat 1993-1996". Wybór tekstów: Czesław Janik, Uniwersytet Warszawski, Instytut Nauk Politycznych, Warszawa 1997. 
(Konkordat Poland in 1993. A selection of source materials from the years 1993-1996". Edited by Czesław Janik, University of Warsaw, the Institute of Political Sciences, Warsaw 1997.)

Online as:
Kościelny projekt konkordatu z 1991 r. [1]
http://www.racjonalista.pl/kk.php/s,243
Kościelny projekt konkordatu z 1991 r. [2]
http://www.racjonalista.pl/kk.php/s,243/k,2
Kościelny projekt konkordatu z 1991 r. [3]
http://www.racjonalista.pl/kk.php/s,243/k,3

Translated by Renata Anderson