Law to make concordats into human rights treaties with precedence over national laws (2001)

The first concordat was rushed through in 2000 within six days of the signing, leaving until later the legislation needed to shore it up. This follow-up law, which sought to give the concordat precedence over national laws, came within a year. It is designed to free the concordat from democratic control by designating it "an international treaty on human rights". Under the Sloavak Constitution — for good reason — such treaties cannot be cancelled by an act of parliament.

To make way for the "conscience concordat" this law also extends "conscientious objection" from the original meaning which it had in the Slovak Constitution — the refusal to fight wars — to the new Vatican interpretation — the refusal to do anything contrary to Church doctrine.

Resolution of the SR Government No 1130 of 28 November 2001

Precedence Clause
of an international treaty over laws

(Article 7.5 of the Constitution of the Slovak Republic)

1. Sponsor of Treaty:

2. Name of Treaty:

Treaty between the Slovak Republic and the Holy See on the exercise of objection of conscience

3. Purpose and subject of Treaty, and its regulation in the legislation of the Slovak Republic:

The purpose of the draft Treaty is to regulate the terms and the scope of the exercise of the right to objection of conscience, as well as to establish a special Joint Committee for the purpose of the implementation of this Treaty.

The exercise of the right to objection of conscience as defined by the Treaty is regulated in the Slovak legal order explicitly as regards the option to refuse performance of the (mandatory) military service pursuant to Article 25 of the Constitution of the Slovak Republic and the Act N°207/1995 Coll. on Civilian Service, and is acknowledged within criminal proceedings where a person is discharged of the duty to prevent (§ 167 of the Criminal Code) or report a crime (§ 168 of the Penal Code) if by fulfilling such duty that person would break the seal of confession, or the secrecy of information, which was received on the condition of confidentiality by a person commissioned to a pastoral duty. Pursuant to § 100.3 of the Penal Code, such persons have the right to refuse to testify.

The subject of the Treaty, however, is clearly associated with the right to freedom of thought, conscience, religion and faith (Article 24 of the Constitution of the Slovak Republic) in connection with Article 12.1, 12.2, 12.4 and Article 2.3 of the Constitution of the Slovak Republic. The exercise of objection of conscience is therefore a fundamental right, which logically is rooted in the realisation of the right to freedom of thought, conscience, religion and faith.

4. Direct regulation of rights or obligations of natural persons or legal entities:

The draft Treaty does not contain a direct regulation of rights and/or obligations of natural persons or legal persons.

5. Category of the Treaty pursuant to Article 7.4 of the Constitution of the Slovak Republic (requiring approval of the National Council of the Slovak Republic prior to ratification):

For the purposes of Article 7.4 of the Constitution of the Slovak Republic, the Treaty is characterised as “an international treaty on human rights and fundamental freedoms”, as it addresses directly the issue of the exercise of a fundamental human right – freedom of thought, conscience, religion and faith pursuant to Articles 24 and 25.2 of the Constitution of the Slovak Republic, which also includes the possibility of exercising objection of conscience.

6. Category of the Treaty pursuant to Article 7.5 of the Constitution of the Slovak Republic (having precedence over laws):

For the purposes of Article 7.5 of the Constitution of the Slovak Republic, the Treaty is characterised as “an international treaty on human rights and fundamental freedoms”, as it addresses directly human rights and fundamental freedoms pursuant to Articles 24 and 25.2 of the Constitution of the Slovak Republic.

Given the nature of the Treaty, as well as the fact that pursuant to §144.1 of the Constitution of the Slovak Republic, a judge is bound only by international agreements pursuant to Article 7.2 and Article 7.5, a proper implementation of the Treaty in the Slovak Republic requires that the Treaty be classified as an international treaty, which has precedence over laws.

7. Impact of the endorsement of an international treaty, which has precedence over laws, on the Slovak legal order (listed should be legal regulations or their provisions affected by the international treaty and whether they need to be abolished or modified due to duplicity):

Given the treaty’s precedence over laws, it is not necessary to eliminate duplication.
The possibility of exercising objection of conscience is contained in the following legal regulations:

• Act N°207/1995 Coll. on Civilian Service,
• Criminal Code (Act N°140/1961 Coll. as amended) - §§ 167 Section 4 and 168.3;
• Code of Criminal Procedure (Act N°141/1961 Coll. on criminal court proceedings as amended) - § 100.2.

The Treaty will have an impact on the application of legal regulations especially in the following areas:

Activities in armed forces and armed corps:

• Act N°4/2001 Coll. on Prison and Court Guards;
• Act N°171/1993 Coll. on Police Corps, as amended;
• Act N°370/1997 on Military Service, as amended by the Act N°10/2000 Coll.;
• Act N°564/1991 Coll. on Municipal Police, as amended by the Act N°319/1999.

Health-care activities:

• Act N°277/1994 Coll. on Healthcare, as amended;
• Act N°596/2002 Coll. on the Protection of Public Health;
• Act N°73/1986 Coll. on Abortion, as amended;
• Act N°311/2002 Coll. on the Profession of Nurse, Profession of Midwife and the Slovak Chamber of Nurses and Midwives;

Educational activities, science and research, retransmission:

• Act N°29/1984 Coll. on the System of Elementary and Secondary Schools;
• Act N°308/2000 Coll. on Broadcasting and Retransmission;
• Act N°132/2002 Coll. on Science and Technology;

Judicial decision-making and provision of legal services:

• Act N°335/1991 Coll. on Courts and Judges;
• Act N°385/2000 Coll. on Judges and Judicial Apprentices;
• Act N°132/1990 Coll. on Advocacy;
• Act N°233/1995 Coll. on Executors and Execution;

Labour and special function relations:

• Labour Code – Act N°311/2001 Coll.
• Act N°312/2001 Coll. on Civil Service;
• Act N°313/2001 Coll. on Public Service;
• Act N°73/1998 Coll. on Civil Service of Members of Police Corps, the Slovak Intelligence Service, the Prison and Court Guards of the Slovak Republic and the Railway Police, as amended;
• Act N°282/1998 on the Public Prosecution Office, as amended.
   

Translated by Dr. Alexander Rehák