Warnings from the EU that stalled the Slovak concordat (2005)

EU Network of Independent Experts on Fundamental Rights
Opinion N° 4-2005

The right to conscientious objection
and the conclusion by EU member states of concordats with the Holy See

14 December 2005
Extracts

I. Introduction
 

[p. 4] The Opinion of the Network [was to] be based on the examination of three questions.

1. First, are such agreements between a State and the Holy See recognized [as] a primacy above national law, including national constitutions?
2. Second, do such agreements create an incompatibility with fundamental rights and the law of the European Union?
3. Third, by which means do such agreements produce effects and how are such agreements terminated?
    

II. The legal framework of concordats concluded between States and the Holy See

1. The Draft Treaty between the Slovak Republic and the Holy See on the Right to Objection of Conscience

[p. 5] […] After it [has] been ratified, the Draft Treaty will have the status of a treaty under international law. It will therefore bind both Parties to the Treaty, and it can be terminated only agreement of the Parties or upon termination of the Basic Concordat which it implements. That this is the understanding of the Parties negotiating the Draft Treaty is confirmed by Article 9.

[…] Because the Draft Treaty would be recognized [as possessing] the status of an international human rights treaty, it would take precedence over the laws of the Slovak Republic in accordance with Article 7 paragraphs 4 and 5 of the Slovak Constitution [“Precedence Clause”].

[…] Under Article 144(1) of the Slovak Constitution, the courts in Slovakia will be bound by its content, and they might, for instance, release certain health care practitioners from their legal obligations on the basis of the right to conscientious objection clause which the Draft Treaty contains. Under Article 7(5) of the Constitution of the Slovak Republic, the Draft Treaty would not take precedence over the Constitution. However, it cannot be excluded that Article 24 of the Constitution in particular, which guarantees freedom of thought, conscience, religion and belief, will be interpreted according to the terms of the Draft Treaty, if and when this instrument will be in force.

2. The status of international law treaties of concordats concluded between States and the Holy See

The status which, if ratified by the Slovak Republic, the Draft Treaty would be recognized in that Member State, is by no means unusual. There cannot be any doubt as to the fact that the Holy See has the status of a subject of international law, and that it can conclude agreements, which have the status [p. 6] of treaties, with States. Indeed, this is amply confirmed by the international practice of States, which have diplomatic relationships with the Holy See since 1870. Such concordats are binding on the States parties. They are assimilated to international treaties concluded with States. The insertion within the internal legal order of concordats concluded by EU Member States with the Holy See operates through variable means.

Although it is not the purpose of this opinion to review all Member States with regard to the solution they give to this difficulty, certain specific situations should be highlighted. In certain Member States, international treaties are recognized [as possessing] a primacy above all national laws, including the national Constitution. In the case of Italy, this is in practice the status which is recognized [for] the 1929 Lateran pacts between the Holy See and the State, as Article 7 of the Constitution envisages explicitly that the relationship between the government and the Catholic Church is regulated by those pacts signed in 1929. Amendments to these pacts which are accepted by both parties, however, do not require the procedure of constitutional amendments. […]

In other Member States, they are recognized [as] a primacy only above legislation, but not above the Constitution. France belongs to this second category of States. As a result, if concluded with France, a concordat similar to that which may be concluded between the Slovak Republic and the Holy See would only be applicable to the extent that it would be compatible with the principles of equality and of secularism (‘laïcité’), as enshrined respectively in Art. 1 of the Déclaration des droits de l’homme et du citoyen (equality) and in both Art. 10 of this Declaration and in the Preamble of the Constitution of 27 October 1946 (secularism). It is doubtful that this would indeed be the case, to the extent at least that, as a result of the insertion in a concordat of a clause relating to the right to religious conscientious objection, believers of the Catholic faith would be recognized [as having] a broader freedom of religion than believers in other religious faiths. In Portugal also, international treaties are not recognized [as a] primacy above the Constitution. Similarly in Spain, international treaties may only be ratified after an amendment to the Constitution, where an incompatibility is identified by the Constitutional Court (Art. 95 of the Constitution), implying that the Constitution remains the supreme law of the land.
 

III. The compatibility of concordats containing a provision on the right to religious conscientious objection with the requirements of fundamental rights and Union law
 

1. General remarks

[p. 7] […] In certain Member States, a concordat is in force with the Holy See which includes a provision on religious conscientious objection. This is the case in Italy, in Latvia and in Portugal. In these States however, the clause on religious conscientious objection only concerns exemption from armed military service. […] In other Member States, the existing concordats do not include a provision relating to religious conscientious objection. This is the case in Austria, where the existing bilateral agreement with the Vatican of 1933 and its later amendments do not refer to the issue of conscientious objection. [Nor in concordats with Lithuania, Luxembourg, Malta, Slovenia and Spain.]

[p. 8] In still other Member States (such as, for instance, in the Czech Republic, Cyprus, Denmark, Estonia, Finland, France, and Greece), there exists no concordat between the Holy See and the Member State. However, the right to conscientious objection may be recognized in these States in national legislation and benefit either any believer, or specifically members of the clergy. Indeed, as explained hereunder, insofar as it is an implication of the right to freedom of religion, all the EU Member States are to recognize to some extent at least the right to religious conscientious objection, understood as a right not to be obliged to perform certain otherwise compulsory legal duties where such performance would violate one’s religious convictions, unless the refusal to perform these duties would lead to a violation of the rights of others.

2. The recognition of the right to religious conscientious objection in the EU Member States

Where it is recognized either under concordats or under constitutional or legislative provisions, conscientious objection – which under these instruments may be invoked either by the members of the clergy alone, or by all persons who thereby seek to manifest their religious beliefs – concerns especially four activities : military service; the celebration of weddings, in particular in which one of the persons has divorced from a previous marriage, same-sex marriage or unions such as registered partnerships between two persons of the same sex ; the provision of health services, in particular abortion, euthanasia, artificial fertilisation and medically assisted contraception.

[There follows a review of the status of (non-military) conscientious objection in Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Hungary, Italy, the Netherlands, Portugal, Spain and the United Kingdom.]

[p. 15] […] Nevertheless, this opinion will distinguish between potential difficulties raised under international and European human rights law, and potential incompatibilities of the Draft Treaty with Union law. In Section 3, the applicable principles under international and European human rights law are recalled. Section 4 describes the potential conflicts between Union law and the exercise, in certain circumstances, of the right to religious conscientious objection. Section 5 then illustrates these principles by applying them to the Draft Treaty between the Slovak Republic and the Holy See.

3. The applicable principles under international and European human rights law

3.1. The right to religious conscientious objection as a dimension of freedom of thought, conscience and religion

[Regarding Article 18 of the International Covenant on Civil and Political Rights on the right to freedom of thought, conscience and religion] The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from Article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service.

3.2. The allowable restrictions to the right to religious conscientious objection

It is clear that the right to religious conscientious objection and the correlative obligation, as described above, to offer reasonable accommodation to the religious beliefs of an individual, are not unlimited. Indeed, the right to religious conscientious objection may conflict with other rights, also recognized under international law. In such circumstances, an adequate balance must be struck between these conflicting requirements, which may not lead to one right being sacrifi[c]ed to another. This is the case even where the right to religious conscientious objection is stipulated in a concordat, which has the status of an international law treaty between the Holy See and a State. Indeed, as a general rule, a State may not ignore its pre-existing international obligations as defined in particular by treaties concluded in the field of human rights by the conclusion, with other Parties, of later treaties affecting its ability to respect, protect and fulfil human rights under its jurisdiction (Article 30 (4) of the Vienna Convention on the Law of Treaties, 23 May 1969). According to the European Court of Human Rights, [p. 17]

a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations.

The jurisprudence of the Human Rights Committee suggests that the relevant criterion in determining whether exemptions or accommodation for reasons of conscience offered to one group are permissible depends on whether other persons can claim discrimination or other adverse effect in their enjoyment of human rights as a consequence. […]

In order to identify how such a balance may be found between the right to religious conscientious objection and other rights protected under international human rights law, it would be necessary to examine separately the different rights which an abusive exercise of the right to religious conscientious objection may threaten. The right to have access to abortion in circumstances where it is lawful to perform an abortion is examined first. The opinion then discusses the other rights which may conflict with the exercise of the right to religious conscientious objection in different contexts. Finally, the content of the requirement of non-discrimination between different religious faiths is recalled.

a) The right to have access to lawful abortion services [the warning posed by the situation in Poland]

In its Conclusions and Recommendations adopted on 15 April 2005, referring to the situation of Poland, the Network expressed its concern at the fact that ‘a prohibition on non-therapeutic abortion or the practical unavailability of abortion may in fact have the effect of raising the number of clandestine abortions which are practised, as the women concerned may be tempted to resort to clandestine abortion in the absence of adequate counseling services who may inform them about the different alternatives opened to them’. […] Information on the refusal by medical doctors to perform abortions even under circumstances where it would be legal was provided to the Committee both by non-governmental organisations and by the state party itself, which showed to the Committee that the effects of restrictive abortion laws were further aggravated by hospitals and medical doctors often refusing to perform lawful abortions by invoking a clause allowing for conscientious objection.[p. 18]

The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned (art.6).

[...] Despite the recognition by the Polish Supreme Court of a right to appeal the decision of a medical doctor to deny abortion in circumstances where it would be legal, non-governmental organizations allege that Polish law still lacks an effective means of appeal against the decisions of doctors refusing to perform an abortion. Moreover, the women themselves are not familiar with the rights they are entitled to. Indeed, this is the background of the case of Alicja Tysi_c, currently pending before the [p. 19] European Court of Human Rights. As a result of a refusal to perform an abortion justified by health considerations, the applicant became a category 1 disabled person due to loss of eyesight. She filed an application alleging the violation by Poland of the European Convention on Human Rights due to the lack of an effective means of appeal against the decision of a doctor, who refused to perform an abortion. The case presents the Court with the question of whether a State party to the Convention that allows abortion in certain circumstances in its laws, but fails to adopt effective regulations, procedures and policies to ensure the availability and accessibility of legal services, thereby rendering women’s right to abortion ineffective in practice, violates its obligations under Articles 3, 8, 13, and 14 of the European Convention on Human Rights.

The European Court of Human Rights has not identified in the European Convention on Human Rights, as such – without further specification – a right to seek abortion. In the current state of international human rights law however, the right to seek the interruption of pregnancy must be recognized [for] women where the continuation of pregnancy would seriously threaten their health. Indeed, all the EU Member States provide for therapeutic abortion as an exception to the prohibition of abortion. Moreover, there appears to be an emerging consensus that, where the regulation of abortion is too restrictive, and especially where abortion is made criminal in all circumstances or only with too narrow exceptions, the practice of illegal abortions performed in unsafe conditions may threaten the right to life, guaranteed in particular under Article 6 of the International Covenant on Civil and Political Rights. Indeed, the UN Committee on Economic, Social and Cultural Rights has expressed its concern over the relationship between high rates of maternal mortality and illegal, unsafe, clandestine abortions, noting that restrictive abortion laws contribute significantly thereto. This led the Committee to recommend the liberalization of abortion laws in certain States parties to the International Covenant on Economic, Social and Cultural Rights.

Denying to a woman the effective possibility to abort in circumstances where abortion is lawful under the regulations of the State concerned may moreover amount to the infliction of an inhuman and degrading treatment, in the meaning of Article 7 of the International Covenant on Civil and Political Rights. This [...] has [p. 20] been confirmed recently in the case of Karen Llontoy v. Peru. The applicant, who was 17 years old at the material time, was denied access to abortion in circumstances where the interruption of pregnancy was lawful under Peruvian law. The Human Rights Committee took the view that the lack of clear regulations ensuring that the right to have access to abortion will be effectively guaranteed leave women at the mercy of public officials. It concluded that Peru had violated a number of the rights of the Covenant: Article 2, in the absence of effective remedies against the refusal by the director of the public hospital to perform the abortion requested, Article 7, because of the inhuman and degrading nature of the treatment inflicted upon Ms Llontoy, who was in effect forced to carry a fatally impaired fetus to term, Article 17, because of the invasion of her privacy this amounted to, and Article 24, because she was denied the special protection of her rights due to a minor. (Footnote no. 58, p. 20: When Ms Llontoy was fourteen weeks pregnant, the fetus [was diagnosed] with anencephaly, a fatal anomaly in which the fetus lacks most or all of a forebrain.)

The Network also takes into account the General Recommendation No. 24 (20th session, 1999) (art. 12: Women and health) (UN doc. A/54/38/Rev.1), adopted by the UN Committee on the Elimination of Discrimination against Women. This General Recommendation took the view that:

11. Measures to eliminate discrimination against women are considered to be inappropriate if a health care system lacks services to prevent, detect and treat illnesses specific to women. It is discriminatory for a State party 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 introduced to ensure that women are referred to alternative health providers.[...]

In sum, whether the right to religious conscientious objection is recognized explicitly in a concordat, or whether it is derived from the guarantee of freedom of religion stipulated in international human rights instruments, in the national Constitution or in specific legislation, this right should be regulated in order to ensure that, in circumstances where abortion is legal, no woman shall be deprived from having effective access to the medical service of abortion. In the view of the Network, this implies that the State concerned must ensure, first, that an effective remedy should be open to challenge any refusal to provide abortion ; second, that an obligation will be imposed on the health care practitioner exercising his or her right to religious conscientious objection to refer the woman seeking abortion to another qualified health care practitioner who will agree to perform the abortion ; third, that another qualified health care practitioner will be indeed available, including in rural areas or in areas which are geographically remote from the centre. [emphasis in the original] […]

[Comments by the Center for Reproductive Rights on the regulation of legal abortion in Bulgaria, Croatia, Serbia, Slovenia, Macedonia, the Czech Republic, Slovakia, Norway, Sweden and Finland are found on pages 20-22.]

[p. 20] The Center for Reproductive Rights has provided the European Court of Human Rights with the following comments in the case of Alicja Tysi_c v. Poland currently pending before that Court :

12. (...) The establishment of an appeals or review process in countries across Europe reflects a common understanding of the need to protect women’s right to legal abortion in situations where a health-care provider denies such a request, including in cases where a woman’s health is at risk. Lack of a timely appeals process undermines women’s right to have access to reproductive health care, with potentially grave consequences for their life and [p. 21] health. It also denies women the right to an effective remedy as guaranteed by Article 13 of the European Convention.

b) Other fundamental rights

[p. 22] The reasoning presented with regard to access to abortion services in situations where abortion is lawful under the applicable legislation, may be transposed to other situations, where other rights are concerned, whether these rights are recognized under international or European human rights law or whether they are recognized under national law. For instance, although neither euthanasia nor assisted suicide are protected as such under the European Convention on Human Rights or any other international human rights instrument, in a State where euthanasia or assisted suicide are partially decriminalized, the right to religious conscientious objection, while it should be recognized [for] the medical doctors asked to perform euthanasia or to assist a person in committing suicide, should not be exercised in a way which leads to depriving any person from the possibility of exercising effectively his or her rights as guaranteed under the applicable legislation. Similarly, as illustrated in the Netherlands by the case-law of the Equal Treatment Commission, referred to above, although the right to religious conscientious objection may be invoked by an officer refusing to celebrate a marriage between two persons of the same sex or where one of the prospective spouses is a transsexual, it would be unacceptable to allow this to result in marriage being unavailable to the couple concerned: any form of discrimination on the basis of sexual orientation (as would result from the refusal to celebrate a marriage between two persons of the same sex where this institution is recognized), and [p. 23] any violation of the right to marry of transsexuals, should not be tolerated, and the public authorities should ensure in such circumstances that other officers will be available and willing to celebrate those unions.

As illustrated by the examples mentioned in part III.2. of this Opinion, the right to religious conscientious objection has been frequently referred to in relation to pharmacologists refusing, on religious grounds, to deliver certain pharmaceutical products to their patients, whether or not referred to them by medical doctors. The case-law of the European Court of Human Rights suggests that, where access to contraceptives is legal, women should not be deprived of such access because of the exercise, by health practitioners or pharmacologists, of their right to religious conscientious objection: under this case-law, a State may oblige pharmacologists to sell contraceptives, at least where women would otherwise not have access to contraceptives. More broadly, a right to have access to counseling and to health care in area of reproductive health has been recognized in international human rights law, and this may be extended to the right to receive education on sexual health matters.

Under the International Covenant on Economic, Social and Cultural Rights, ‘States should refrain from limiting access to contraceptives and other means of maintaining sexual and reproductive health, from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information’; indeed, they should ensure ‘that third parties do not limit people's access to health-related information and services’.

c) The requirement of non-discrimination

[p. 24] [At its present stage of development, international and European human rights law does not prohibit a State from affording a particular form of recognition to a certain religious faith. . When confronted, in the case of Darby v. Sweden (Appl. n° 11581/85), with an application alleging that the obligation to pay taxes with which a religious faith was supported by the State was in violation of Article 9 ECHR, the European Commission on Human Rights said in a report of 9 May 1989 (ex-Art. 31 ECHR):

45. A State Church system cannot in itself be considered to violate Article 9 of the Convention. In fact, such a system exists in several Contracting States and existed there already when the Convention was drafted and when they became parties to it. However, a State Church system must, in order to satisfy the requirements of Article 9, include specific safeguards for the individual's freedom of religion. In particular, no one may be forced to enter, or be prohibited from leaving, a State Church. (...)

56. (...) The duty to pay general taxes which are not ear-marked for a specific religious purpose cannot, in the Commission's view, be considered to raise any problem in regard to the freedom of religion, even if the State uses money, collected by way of taxes, to support religious communities or religious activities. As regards general taxes there is no direct link between the individual taxpayer and the State's contribution to the religious activities.

A State Church system is therefore in principle compatible with the Convention. Such a system however must not lead to a situation where the individual would be put under a pressure either to adhere to a particular religious faith, because of the advantages this would entail, or discouraged from changing religion, because of the risk of loss of such advantages. Neither should it result in a form of discrimination against certain religious faiths, either not recognized or recognized under less favourable conditions. According isto the Human Rights Committee, ‘When this right to conscientious objection recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs’.

4. The requirements of Union law

4.1. The right to exercise objection of conscience in employment relationships

[p. 25] Under Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, the Member States are to prohibit both direct and indirect discrimination based, in particular, on religion or belief, or on sexual orientation, in relation to

a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;

(c) employment and working conditions, including dismissals and pay;

(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations’ (Art. 3(1)).

There are two exceptions to this general prohibition, however.

First, Article 2(5) of the Directive states that it is

‘without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others’.

Second, Article 4 of the Directive provides for an exception, with regard to occupational requirements:

1. Notwithstanding Article 2(1) and (2) which define discrimination as prohibited under the Directive, Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 including religion or belief or sexual orientation shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. […]

[p. 26] The Network would also emphasize that in no circumstance could it be justified for a church or a religious organisation to discriminate against a person on the basis of his or her sexual orientation, whatever the condemnation of homosexuality, on religious grounds, by those organisations. […]

The Network takes the view, therefore, that the right to exercise objection of conscience in employment relationships could only be interpreted as implying the right of the representatives of the Catholic Church to choose employees in Catholic organisations where this may be justified as a genuine and legitimate occupational requirement, taking into account in each individual case the nature of the activities concerned or of the context in which they are carried out. In no circumstance may that provision be interpreted to justify any other form of discrimination prohibited under Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. […]
(p. 27 of the Opinion)

4.2. The impact of the right to exercise objection of conscience on access to healthcare services by women

[p. 27] Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ L 373, 21.12.2004, p. 37) lays down a framework for combating discrimination based on sex in access to and supply of goods and services, with a view to putting into effect in the Member States the principle of equal treatment between men and women (art. 1). It imposes on the Member States an obligation, in particular, to prohibit indirect discrimination based on sex (art. 4(1)(b)). This prohibition applies to ‘all persons who provide goods and services, which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which are offered outside the area of private and family life and the transactions carried out in this context’ (art. 3(1)).

5. The Draft Treaty between the Holy See and the Slovak Republic

5.1. The background

[p. 29] It should first be noted that a number of improvements have been made to the text of the agreement since the first versions were presented. In particular, the list of activities to which the right to exercise the objection of conscience has been shortened. A previous version of the text included ‘judicial decision-making’ in the list of these activities, with the implication in particular that it would have allowed judges to refuse to pronounce divorces. It also included a reference to ‘acting related to genocide, execution of captives without lawsuit, torture, soldierly cruelty and persecution of defenceless civilian population’. These acts are prohibited under both national and international law, and it was entirely unnecessary to include this in a provision which concerns, rather, acts which are normally prescribed by law but which, for reasons linked to the teaching of faith and morals of the Catholic Church, the obligee is recognized [as having] a right to refuse to perform. In previous versions of the Draft Treaty, the list of areas and activities in which the right to exercise the objection of conscience was purely exemplative. Under the current version of Article 4 of the Draft Treaty, the list of activities to which the right to conscientious objection applies is limitative, rather than exemplative.

[p. 30] Part III.3. of this Opinion has recalled the principles applicable to the status of the right of religious conscientious objection in international human rights law, especially in situations of conflict with other fundamental rights. Part III.4. recalled certain relevant provisions of Union law. The following paragraphs apply these requirements to the provisions of the Draft Treaty.

5.2. The scope of the right to religious conscientious objection as provided under the Draft Treaty between the Holy See and the Slovak Republic

Keeping those principles in mind, the most serious threat resulting from the text under discussion concerns its potential impact on the right to have access to certain medical services. The Draft Treaty provides that the right to exercise objection of conscience shall apply, in particular, to ‘performing certain acts in the area of healthcare, in particular acts related to artificial abortion, artificial or assisted fertilisation, experiments with and handling of human organs, human embryos and human sex cells, euthanasia, cloning, sterilisation or contraception’ (Art. 4(1) (b)). Furthermore, under Art. 4(2) of the Draft Treaty, the Slovak Republic would undertake

not to impose an obligation on the hospitals and healthcare facilities founded by the Catholic Church or an organisation thereof to perform artificial abortions, artificial or assisted fertilisations, experiments with or handling of human organs, human embryos or human sex cells, euthanasia, cloning, sterilisations, acts connected with contraception, and not to make the establishment or operation of a hospital or a healthcare facility founded by the Catholic Church or an organisation thereof conditional on the performance of the aforementioned activities.

It cannot be excluded in principle that certain religious organisations be recognized [as having] a right not to perform certain activities, where this would conflict with the ethos or belief on which they are founded. Although the reference in this context to ‘religious conscientious objection’ may be inappropriate, as this right is generally considered a right of the individual rather than of an organisation, the idea that Article 4(2) of the Draft Treaty seeks to express [is] not unknown to either the European Convention on Human Rights or to European Community law, both of which recognize that not only individuals, but also organisations, may invoke Article 9 of the European Convention on Human Rights in order to develop their activities in accordance with their specific objective.

However, it is important that the exercise of this right does not conflict with the rights of others, including the right of all women to receive certain medical services or counselling without any [p. 31] discrimination. Approximately 70% of the population in the Republic of Slovakia is Catholic. There is a risk that the recognition of a right to exercise objection of conscience in the field of reproductive healthcare will make it in practice impossible or very difficult for women to receive advice or treatment in this field, especially in the rural areas.

The Network notes moreover that [in the Draft Treaty] the right to exercise conscientious objection in these circumstances is not combined with an obligation to refer the person concerned to another practitioner; neither is there an obligation imposed on the State to take all the necessary measures to ensure that a woman seeking abortion, in circumstances where it would be lawful, will effectively have access to this service. Such a broad recognition of the right to exercise objection of conscience in the field of reproductive healthcare, without providing for such compensatory measures, goes counter to the international undertakings of the Slovak Republic.

Another potential difficulty relates to the prohibition of discrimination between different religious faiths. The Network is aware that, under Article 1 para. 1 of the Slovak Constitution, the Slovak Republic is a sovereign, democratic state governed by the rule of law, and that it is a secular state, in the sense that it is not bound to any particular ideology or religion. However, it is not the role of the Network – nor is it the object of the questions addressed to the Network – to examine whether the Draft Treaty would, or would not, be compatible with that provision of the Slovak Constitution. This opinion, rather, seeks to examine whether the particular Draft Treaty under examination would be incompatible with the existing international and European human rights law, which should be taken into account in identifying the principles upon which the European Union is founded (Article 6(1) EU), insofar as it recognizes a privileged position to the Catholic faith in the exercise of the right to exercise objection of conscience.

Although Article 24 of the Slovak Constitution recognizes to all a right to freedom of thought, conscience, religion and belief, the Draft Treaty, if and when it will be ratified, would place the Catholic faith in a specific position by affording a reinforced protection of the right to exercise objection of conscience to the followers of that faith. Indeed, Article 3(2) of the Draft Treaty defines ‘objection of conscience’ as ‘an objection raised in conformity with the principle of the freedom of conscience according to which anyone may refuse to act in a manner that he deems incompatible in his conscience with the teaching of faith and morals’, and the ‘principles of the teaching of faith and morals’ in turn is defined as ‘the principles proclaimed in the Magisterium of the Catholic Church’ (Art. 3(1) of the Draft Treaty). Therefore the exemption on religious grounds from the application of generally applicable laws benefits only those who invoke the Catholic faith.

The Network is aware that the Ministry of Justice of the Slovak Republic has also drafted an Agreement between the Slovak Republic and the Registered Churches and Religious Societies on the right to objection of conscience. The content of this draft Agreement is essentially identical to that of the Draft Treaty. The intent of the Slovak authorities, it would appear, is that the agreement be concluded with the eleven churches registered […]

[p. 32] However, apart from the fact that the procedure which has been followed for the registration of those religious faiths remains open to question, the Network would note that there is still a large group of people whose conscience or moral principles are not governed by the official principles of teaching of faith and morals of either Catholic Church or of any other church or religious society registered in the Slovak Republic. These people, or their right to objection of conscience respectively is, of course, covered neither by the Draft Treaty, nor the Draft Agreement. Furthermore, the conclusion of an agreement, similar in content to the Draft Treaty which is the subject of this opinion, does not per se guarantee full equality between the different religious faiths. Indeed, in contradistinction to the Draft Treaty, the agreement will of course not gain the status of an international human rights treaty and therefore will not take precedence over laws of the Slovak Republic. […]

It has been noted above that the Draft Treaty currently under consideration by the Slovak Republic may lead to the State violating its obligations under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women. Insofar as these violations would result from restrictions being imposed to access to counseling in the field of reproductive health and to access to certain medical services, including in particular abortion and contraception, which disproportionately affect women, this would also constitute a violation of the obligations of the Slovak Republic under Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.