The Missing Concordat in the Czech Republic

: The present article discusses certain aspects of the Treaty between the Czech Repub - lic and the Holy See. The text of the treaty was signed at the level of the government, however, it has not been ratified so far. Some provisions of the treaty are rather superfluous or lack suf - ficient normative basis. Nevertheless, as the example of Article 9 of the treaty on the recognition of civil effects of church marriages shows that the approval of the treaty by the Parliament of the Czech Republic would have been very beneficial. In fact, in the process of preparation for a new civil code an attempt was made to repeal church marriages recognized by the state. Such a project would have been made impossible by the concordat because church marriage would have been supported by an obligation of the state under international law. Fortunately, the civil code kept church marriages, and confessional law in the Czech Republic has to develop without a valid concordat.

Keeping the worldview neutrality in a state is primarily realized by the means of treatises. They represent the foundation for legal regulations not based on the worldview idea or option of the state, but on the idea of respecting religious freedom and the identity of various religious communities. Various countries today conclude such treatises, and not only with the Apostolic See with its legal subjectivity based in international law, but also with other churches. This is how the state keeps its neutrality in terms of worldview; and the laws founded on such treatises and contracts have reinforced legal power (leggi rinforzate). 1

Unsuccessful Ratification of the Concordat
It is a known fact that the Czech Republic is the one and only state of comparable size where a treatise of the concordat type has not been ratified yet. 2 By no means does this mean that contractual law in terms of treaties regarding some areas, such as pastoral care in the army and in prisons does not exist. However, the Treaty Between the Czech Republic and the Holy See on the 1 Remigiusz Sobański, "Teoretické základy a praktické uskutečňování vztahu státu a církve v některých evropských zemích," Revue církevního práva 4 (1996): 87.

Regulation of Mutual Relations [Accordo tra la Santa Sede a la Repubblica
Ceca sul regolamento dei rapporti reciproci] 3 was signed in July 2002 only on inter-governmental level. 4 The vote taken in the Chamber of Deputies of the Parliament of the Czech Republic [Poslanecká sněmovna Parlamentu České republiky] resulted in non-ratification of the treaty. 5 The most likely reason for turning down the governmental proposal in the Chamber of Deputies was the promise of solving the restitution of the property confiscated by the Communist regime and the need to set out a new model of financing the Catholic Church, found in Article 17, par. 2 of the proposal: The economic security of the Catholic Church is guaranteed by the legal system of the Czech Republic. In the case of developing a new model of financing the Church, the state will guarantee that the process of adopting it will not cause economic problems in the Catholic Church. The new model would replace the current one. 6 The then situation can be documented by the letter of the President of the Czech Republic to the Minister of Foreign Affairs: The first paragraph of Article 17 gives a completely unnecessary unilateral promise that "the Czech Republic will strive to solve the problems regarding the property of the Catholic Church as fast as it can in and a manner acceptable to both parties," although clearly this is a highly contentious political issue in this country at the moment. This promise is thus making an impossible pledge. The Czech Republic cannot make an obligation to another country how it is going to deal with its own internal issues. 7 In the case of Article 17, it is evidently a program norm expressing a goal which the two contract parties aim to fulfil. It is thus one of the "final" norms 3 Accordo tra la Santa Sede a la Repubblica Ceca sul regolamento dei rapporti reciproci, in Revue církevního práva 22 (2002) which demand the legislator to achieve a particular goal. 8 A similar form is used in the regulations of the European Union which envisage member states making their own decision on the form of achieving the given normative goal. When ratified, the promise of creating a new model of financing the Church expressed in Article 17 of the proposal would thus represent international obligation under the treaty with the Holy See, whose meaning would be to push the constitutional organs of the Czech Republic to fulfil the negotiated goal.

The Deficiencies of the Treaty Proposal
Some of the negotiated articles of the treaty would reinforce the guarantees of the individual and collective religious freedoms which the faithful in the Czech Republic enjoy. 9 Since the Czech Republic belongs to the countries respecting these freedoms, some legislators may have thought that the "usefulness" of the treaty seems exaggerated, as well as its "necessity" as articulated in the preamble. The preamble also contains proclamations which thematize the split public opinion in the Czech Republic on the issue: it tends to be very critical to the role of the Catholic Church "in the Czech state as well as in European and world history in the process of forming and defending the spiritual, cultural and human values and the potential of the Catholic Church to influence reconciliation processes in the world." 10 .
The treaty proposal also states some indisputable facts, for example, regarding legal subjectivity of the Roman Catholic and the Greek Catholic Church in Article 3, par. 1, or anachronically opens up issues which had already been solved in the Modus vivendi during the so-called first Czechoslovak Republic 8 "Legislative processes are initiated with final norms which may have different form: they can be based on the programming statement, government resolutions, resolutions of a club of the deputies in the Chamber, directives of the superiors, etc.; usually, these are not legal norms, however, the preparation of a regulatory decision is more or less obliged to follow these norms.ˮ Jiří Boguszak, Jiří Čapek, and Aleš Gerloch, Teorie práva (Praha: ASPI, 2004), 160. 9 "Thank God a lay state was restored by Act 16/1990 Coll. and the Charter of Fundamental Freedoms published as an appendix to the Constitutional Act No 23/1991 Coll. The final step was Act No 308/1991 Sb. of the Czechoslovak Federative Republic, which represents the highest degree of the religious freedom of churches and church communities in the history of our state. It is a consequence of the new found freedom of the restored democracy and as a response to the attitudes of the church which stood on the side of the nation in its struggle for freedom, in 1928: 11 "The Holy See makes sure the borders of the Roman Catholic dioceses and that of the Greek Catholic eparchies and apostolic administrations existing in the Czech Republic correspond with the state borders of the Czech Republic." The professionalization of the army in the Czech Republic started in the middle of the 1990s, 12 thus the issue of conscientious objectors, as themetized in Article 7 of the said treaty seemed irrelevant: "Both parties respect that nobody must be forced to serve in the army if it is contrary to his own conscience or religious belief." 13 In terms of the necessary normative obligatory contents, Article 8 dealing with the media was unfortunately completely omitted: "Both parties respect that mass media play an important role in the protection of the freedom of thought and conscience, as well as the freedom of religious belief and are willing to carry on supporting them in fulfilling this role." 14 The Attempt to Abolish Church Marriages Acknowledged by the State However, ratification of the concordat would be useful as regards Article 9 of the treaty dealing with church marriages and their effect for civil law: "The Catholic Church performs ceremonies in which marriages are contracted. If a marriage is so contracted and fulfils the norms given by the law of the Czech Republic has the same validity as a civil marriage." 15 Church nuptial ceremonies in the Czech lands used to be the only or at least a completely dominant form of contracting marriage. Since 1950, after the Communist regime came to power, citizens were forced to contract obligatory civil marriage. At that moment, new Family Code came into effect based on the Soviet model which set marriage aside from the complex regulation of civil law and established that only after contracting obligatory civil marriage citizens may also take part on "religious nuptial ceremonies." 16 If a priest blessed a couple prior to a civil ceremony, he was found guilty of committing a criminal offence. Only after 1989 was it made possible to restore the practice of recognizing the validity of church marriages. 17 And indeed, the amendment of family law in 1992 restored the possibility of facultative church marriages. Citizens of Czechoslovakia and both its successor states, that is, the Czech Republic and the Slovak Republic, may contract their church marriage without a prior civil marriage. Symptomatically, after the division of Czechoslovakia, there were no efforts to reverse this legal status and from 2000 onwards this would have been impossible because Slovakia signed a first treaty of a concordat type with the Holy See. Article 10 of this Fundamental Treaty 18 establishes the following: A marriage contracted in accordance with the canon law and fulfilling the conditions of marriage given by the legal system of the Slovak Republic has the same legal status and effect as a marriage contracted in a civil form on the territory of the Slovak Republic. State evidence of marriages contracted in accordance with the canon law and their entry into the registry of the book of marriages is regulated by the law of the Slovak Republic. (par. 1) Slovakia thus represents a model discussed by Sobański in his Prague lecture: namely, if states conclude concordats with the Holy See, similar treaties tend to be contracted also with non-Catholic churches. 19 The treaty between the Slovak Republic and registered churches and religious communities 20 represents an analogue of a basic concordat treaty with the Czech Republic, thus its Article 10 only adjusts the text to the legal systems of non-Catholic churches. Instead of the formulation "marriage contracted in accordance with the Canon Law," it 17 "For a very long period of time (for 42 years), it was an obligation to contract marriage before state organs […]. This reality was considered burdensome for a number of the faithful, since their priority was to contract their marriage coram Deo." Damián Němec, "Pohled na otázku sekulárních účinků uzavření manželství před orgánem církve a náboženské společnosti především z hlediska katolické církve," in Církev a stát: sborník příspěvků z konference -1. ročník, ed. Michal Lamparter (Brno: Právnická fakulta Masarykovy univerzity, 1996), 58.
18 "Základná zmluva medzi Svätou stolicou a Slovenskou republikou," in Revue církevního práva 22 (2001) uses the phrase "marriage contracted in accordance with the internal regulations of the registered Churches and Religious Communities." However, the situation in the Czech Republic is different. The law on churches which comes from the time of the Czechoslovak federation and is still in force in Slovakia, 21 was replaced with a new law in 2002, 22 which introduced a concept of the so-called special rights of churches and religious communities. This covers the public activities permitted to the churches as a kind of extra in comparison with the secular civic association, societies, and other interest groups. These special rights also include the right to "perform ceremonies in which church marriages are contracted under a special regulation." 23 In fact, the very term "special rights" has been a target of criticism, because when accepted, the state plays a role of a privilege distributor rather than that of a guardian of religious freedoms of the citizens. 24 The legislator thus also showed a tendency towards etatist dirigisme in abolishing contractual provisions which used to exist in the exercise of these specific rights and replace them with a unilateral act of the state: "Until special legal provisions are adopted […] specific rights may only be exercised in accordance with existing legal provisions. Contracts on the exercise of these rights of the registered churches concluded prior to the adoption of this law are still in force." 25 Fortunately, no further laws have been passed to replace the existing and well-functioning contracts between organs of the state and the churches which were concluded at the time the law came into force. 26 However, the repeal of the law threatened the right to contract church marriages valid under civil law. This happened in relation to long-term preparation of the new Civil Code, that is, a complex codification of private law, whose goal was among other things to replace the present fragmentation of the regulation of private law matter into civil law, commercial law and marriage and family law. The original proposal found in the government draft bill used a clearly tendentious description for the fictitious historical trend which supposedly leads the legislator to repeal the facultative civil marriage: In the Middle Ages, all status issues appertained to the church, marriage was the last institution to be taken from the church by the state: in the evangelical Netherlands in the 17th century, in Catholic France in the 18th century, etc. A vast majority of European countries recognizes only civil marriage (Germany, Austria, etc.), in a minority of countries, there is the so-called state religion. In those countries civil marriage is facultative (Britain, Nordic countries) and in a few countries, church marriage can be celebrated only be explicitly recognized churches (Italy,Portugal,etc.). 27 The claim that an "absolute majority" of European countries recognize only the obligatory civil marriage is patently false, because, for example, from the then twenty-seven members of the EU, only ten recognized civil effects of church marriages. 28 In fact, the trend in central and Eastern Europe was quite the contrary to the one provided by the explanatory memorandum, since the reintroduction of facultative church marriage was here understood as just one of the many manifestations of the interventions of the totalitarian power suppressing religion and pushing in into the private sphere of the citizens. 29 Against this backdrop, one should also mention the wording of the constituting elements of the criminal offence called "Violating family law": Whoever violates some of the provisions of family law while exercising spiritual assistance or similar religious function, even as a result of negligence, especially when officiating at a marriage between people who have not yet 27 "Z návrhu občanského zákoníku k formě sňatku," in Rvue církevního práva 33 (2006): 65. 28 "Scientifically, an acceptable basis for the adherents of the change would have been to publicly present topical statistics of the countries of the world with this or that form of marriage. Also, it would have been relevant to specify what kind of development was made in an important period (and what period it was), whether and what tendencies can be inferred and especially. o the basis of what prognostic methods they can be inferred. It is not enough to just sum up random data from various European countries." Ivo Telec, "Kritika přípravy odnětí svobody volby občanského nebo církevního sňatku," Revue církevního práva 33 (2006): 56. 29 "We all remember the criminalisation of the clergy officiating at a religious ceremony before contracting a marriage. The socialist state demonstrated its power in all walks of life. It would be a pity to remember such a reality in relation to the preparation of the new civil code where only an obligatory civil marriage is to exist." Zdeňka Králíčková, "Glosa k návrhu obligatorního civilního sňatku," Revue církevního práva 33 (2006): 61-62. contracted [civil] marriage, will be punished with an imprisonment for a maximum of one year. 30 Evidently, the original intention of the creators of the new Civil Code demonstrated its social unsustainability. Thus the final form of the code approved by the Parliament allowed the possibility of a facultative church marriage: "If the betrothed express the will to conclude a marriage personally before an organ of a church or a religious society approved by a special legal provision, it is a church marriage." 31 The explanatory memorandum puts forth the reasons for such a provision: Although the draft bill approved by the government presupposed only the provision for civil marriage because civil marriage should have the status and legal consequences at the level of private and public law, at the very end of the preparation of the draft of a new civil code a political decision was made that treating church marriages equally to civil marriages is a more appropriate decision if we consider the sensitivity of state intervention into private life of persons once church marriages with status effects were introduced into our legal system in 1992. 32

The Development of Confessional Law without Concluding Concordat-Type Contracts
Evidently, had the treaty with the Holy See been ratified, Czech legislators would not have been submitted the draft with the abolition of church marriages. It is also clear that the era in which positive steps to the church were made, for example, when church marriages with civil effects were reintroduced, was the period shortly after the transition to democracy when the new state power understood many of the regulations as redressing the discrimination and oppression the churches and their faithful faced during the time of the Communist rule. 33 The attempt to get rid of church marriages was a clear sign of a trend change. 30 Act No. 140/1961Coll., penal law, § 211. 31 Act No. 89/2012Coll., Civil Code, § 657 par. 2. 32 Jiří Švestka, Jan Dvořák, Josef Fiala, and Michaela Zuklínová, Občanský zákoník. Komentář -Svazek II (Praha: Wolters Kluwer, 2014 "Evidently the relation between church and state in the Czech Republic has been changing since the end of the Communist era in 1989. The gratitude of the regime to the churches for their indisputable contribution to the destruction of the totalitarian regime found its normative expression in the Charter of the Fundamental Rights and Freedoms which stipulates that Another example of this trend can be seen in the attempt to interpret the 2002 law on churches in such a way that solely those church institutions whose goal is practicing religious faith may be registered as legal persons by the Ministry of Culture. This led to the exclusion of especially church charity organization. The issue ended up at the Constitutional Court 34 and called for an unnecessarily confusing amendment of the law. 35 However, if a concordat had been in force, one can suppose that a number of problems would not have been raised, since Article 10 of the treaty draft establishes the following: In accordance with its own inner regulations, the Catholic church establishes its own legal persons for organizing and practicing the Catholic faith and for its activities especially in the field of education, health care, social institutions and charity. Legal persons so instituted become legal persons within the meaning of the Czech legislation after having fulfilled the conditions found within this legal system. (par. 1) Some church activities would have already obtained its own legal framework if their concrete legal regulations had been missing or were still missing, as for example, the spiritual assistance of the clergy in institutional care buildings: "The Catholic church has the right to exercise spiritual and pastoral care and assistance in institutions providing social services for the persons confined in those institutions, if they so wish" (Article 13, par. 3 of the treaty draft).
It is true, however, that in other areas of the relations between the state and the church progress has been made even without the support of the obligations under international law which would be sanctioned by this treaty. This is, for example, in the area of health care which gradually allowed the adoption of legal, patient-friendly provisions as regards spiritual assistance, 36 and also establish the contractual basis for the activities of hospital chaplains. 37 In 2012, a law was adopted which brought the final solution to the restitution of church property and their financial security, which was-as mentioned above-the reason why the proposal of the treaty was not accepted. 38 It is thus evident that the bargainchurches are, as has been stated before, completely independent on the state in terms of regulating its own matters; this gratitude has, however, quickly faded and I am not sure if the Parliament of the Czech Republic would pass such a norm today." Hrdonín Ignác Hrdina