Pl. ÚS 8/25
The Constitutional Court has declared certain articles of the concordat treaty concluded between the Czech Republic and the Holy See unconstitutional. The treaty cannot be ratified at present. The mere conclusion of this type of treaty does not contradict the sovereignty of the Czech Republic. Furthermore, entering into a concordat does not automatically threaten the constitutionally enshrined neutrality of the state – it is always necessary to examine the specific content of the treaty, which the Constitutional Court has now done. Insofar as the treaty favours the Catholic Church regarding the enshrinement of the seal of confession, it conflicts with the neutrality of the state and the prohibition of discrimination. In the section dedicated to making cultural heritage accessible, it additionally violates the right of access to cultural wealth and the freedom of scientific research. Some provisions of the concordat fully passed the review. However, the judgment of the Constitutional Court prevents the ratification of the international treaty until the non-compliance – in the areas of the seal of confession and access to cultural heritage – is remedied.
In March 2025, a group of 17 senators (the petitioner) filed a petition with the Constitutional Court to review the compliance of the Treaty between the Czech Republic and the Holy See on Certain Legal Issues, signed in Prague on 24 October 2024 (the so-called concordat treaty), with the constitutional order. The petitioner requested a review of the treaty as a whole concerning the principle of sovereignty, the principle of equality, and the prohibition of the state being bound to an exclusive ideology or faith. They also sought a review of selected provisions of the concordat treaty against the constitutional order. They argued that Article 4(2) of the concordat treaty conflicts with the right to an effective investigation, specifically regarding the right analogous to the seal of confession to be held by pastoral workers. Although the petitioner originally explicitly excluded Article 4(1), under which the Czech Republic recognises the seal of confession, from the review, they adopted the argumentation of the President of the Republic (a party to the proceedings) in an expanded petition. They also identified a conflict between Article 7(4) of the treaty and the freedom of scientific research under Article 15(2) of the Charter. According to the petitioner, the remaining articles of the concordat treaty mentioned in the petition might conflict with the principle of equality.
The Plenum of the Constitutional Court (Justice Rapporteur Zdeněk Kühn) partially upheld the petition. Article 4(1) (“The Czech Republic recognises the seal of confession”) and Article 7(4) (“The Churches shall make available and accessible their cultural heritage under conditions set by them”) prevent the ratification of the treaty due to their conflict with the constitutional order.
The Constitutional Court primarily stated that the mere conclusion of this type of treaty is not in conflict with the sovereignty of the Czech Republic. The petitioner and the President deduced this conflict from the imbalance and lack of reciprocal contractual obligations of the Holy See towards the Czech Republic. The petitioner demanded the enshrinement of “certain concessions” regarding the recognition of civil marriages, civil divorces, and the adoption of children by same-sex couples by the Catholic Church. However, according to the Constitutional Court, the requirement for balanced international legal obligations is not a component of the principle of state sovereignty. A balance of obligations is a frequent (but not necessary) characteristic of international treaties. Save for exceptional cases, the mere imbalance of a treaty cannot violate the sovereignty of a state.
In the present case, it was crucial that the concordat treaty with the Czech Republic ultimately contains an obligation for the Catholic Church to respect the Czech legal order in its activities – this duty is indeed imposed on church legal entities during their operations. Given that the internal components of the Roman Catholic Church in the Czech Republic always take the form of a legal entity, such an enshrinement is sufficient from the Constitutional Court’s perspective. Issues related to the formation of marriage, the dissolution of marriage, and adoption are regulated by Czech law independently of canon law – which, from the standpoint of Czech law, is not even considered law. Therefore, it is irrelevant how Catholic doctrine views these issues, and in this regard, the “concessions” demanded by the petitioner lose their meaning.
It is constitutionally prohibited for the state to bind itself to an exclusive ideology or faith. Otherwise, the state’s neutrality would be violated. The Czech state has a secular and denominationally neutral character [Article 2(1) of the Charter]. A secular and denominationally neutral state is separated from faith and religion and is characterised by religious pluralism. On the other hand, certain cooperative elements in the relationship between the state and churches stem from the constitutional order (Article 16 of the Charter). Therefore, the requirement for the complete exclusion of religion from public life does not apply in the Czech Republic. State neutrality in the context of the Czech Republic means, firstly, an equal distance of the state from all religions, and secondly, it prohibits the institutional preference of one church. If the state has undertaken the obligation to create a legal and factual framework for the exercise of religious freedom without simultaneously being able to bind itself to any of the religious denominations concerned, it must approach them equally and without unjustified differentiation. In the spirit of equal treatment, churches must essentially be guaranteed an equivalent legal status, unless there are legitimate reasons for a different approach.
The constitutional requirement of state neutrality does not preclude the conclusion of a concordat in itself; what is always decisive is the specific content of the treaty, which may conflict with the obligation of neutrality. To assess whether (and how) the treaty might affect the religious neutrality of the state, the Constitutional Court employs a test. First, it examines the formal connection between the state and a specific religious doctrine, then it focuses on the factuality of the connection. The final criterion of the test is an assessment of whether there is an unjustified advantage based on a specific religion.
The Constitutional Court found a conflict with the constitutional order in Article 4(1) (the seal of confession) and Article 7(4) (access to cultural heritage). Article 4 of the concordat treaty reads: “(1) The Czech Republic recognises the seal of confession. (2) Pastoral workers possess a right analogous to the seal of confession under conditions stipulated by law.” Article 7(4) of the concordat treaty reads: “Church legal entities shall make available and accessible their cultural heritage, under conditions set by them, to all who wish to learn about it and make it a subject of study.”
The seal of confession is enshrined in the Act on Churches and Religious Societies, the Criminal Code, and the Code of Criminal Procedure. Under the Criminal Code, the minor offence of failing to report a criminal offence is not committed by a cleric to whom, for example, a perpetrator has confided during confession (in contrast, the failure to prevent a criminal offence has no such exception). The Criminal Code similarly regulates the legal professional privilege of attorneys. A certain tension exists between the exclusion from the seal of confession (as understood by Czech laws) and the absolute concept of the right to confession (as understood by canon law). Currently (i.e., prior to the ratification of the concordat treaty), this tension has no legal significance, because the opposing view of the Catholic Church on the scope of the seal of confession cannot alter the rules of Czech law. The concordat treaty [Article 4(1)], however, would substantially change this situation.
The concordat treaty in its currently challenged form enshrines the seal of confession without any exclusions or exceptions. Yet, the two contracting parties understand the meaning of the state’s recognition of the seal of confession differently: While the government argues that the treaty does not enshrine an absolute seal of confession and that Article 4 corresponds to the current legal state of affairs without expanding it in any way, the interpretation of the Holy See is the opposite, and the Czech Bishops’ Conference shares this view. According to the preparatory materials for the conclusion of the treaty, the state advocated for a narrower concept of the seal of confession during negotiations, which would refer to domestic law, thereby preserving the existing obligation of clerics to prevent a criminal offence under the Criminal Code. The Holy See advocated for its broader and inviolable concept, from which no exceptions were stipulated. The form advocated by the Holy See was subsequently incorporated into the final text.
The recognition of the seal of confession by the state [under Article 4(1)] does not apply to clerics of those churches that do not have a seal of confession and instead exercise a right analogous to it (typically Protestant churches). Therefore, under the concordat, the obligation to prevent a criminal offence would still apply to them. This alone unconstitutionally favours the Catholic Church over other churches. Article 4(1) of the treaty is unconstitutional not because it expands the seal of confession beyond the scope of the law, but because it does so unequally on a “supra-statutory” level (via an international treaty), solely in relation to the Catholic Church. For other churches, the existing Czech legal framework would continue to fully apply even after the ratification and promulgation of the treaty. This itself is a manifest violation of the state’s neutrality and the principle of equal treatment of different churches, without any reasonable justification for doing so.
Furthermore, as a consequence of the concordat treaty, inequality would arise between the seal of confession and legal professional privilege. The Criminal Code regulates both types of confidentiality identically (legal professional privilege – of a secular nature; the seal of confession and rights analogous to it – of a religious nature). The concordat treaty exempts only the seal of confession from the scope of the obligation to prevent a criminal offence. However, the constitutional enshrinement of state neutrality also entails a prohibition against arbitrarily preferring religious arguments over secular ones. On the basis of the treaty with the Holy See, the Catholic Church gained a certain advantage (exemption from the effects of Section 367 of the Criminal Code) in comparison with the confidentiality of lawyer-client communication – a confidentiality which holds similar constitutional value, but whose constitutional value is based on purely secular arguments. In this respect, this constitutes a violation of state neutrality.
Church archives constitute cultural wealth. Archival materials of church origin are a significant source of Czech history and represent a highly valuable cultural heritage of the past. Under the constitutional order, the state has obligations towards the creation, development, and preservation of cultural wealth. Article 7(4), however, practically renders the fulfilment of this state duty impossible, as it is Catholic church legal entities that unilaterally determine whether, and to what extent, access to their archives will be permitted. The concordat treaty provides Catholic church legal entities with a powerful tool to withhold access to their documents (archives). The decisive power over the performance of this obligation lies in the hands of entities outside public authority, without any explicit statutory boundaries. In essence, the treaty allows church entities to determine who may access their documents and under what conditions, and to unilaterally set the conditions of access to church archival funds. Thereby, the concordat exempts Catholic churches from the obligation to comply with the Archives Act, which would, however, continue to apply to all other churches. For the same reasons, the freedom of scientific research would be jeopardised, as the treaty excludes statutory protection for making the Catholic Church’s cultural heritage accessible. Those who would wish (in the words of the Charter) to conduct scientific research would, in relation to church archives, be excluded from the statutory protection provided by the Archives Act.
The Constitutional Court therefore concluded that Article 4(1) conflicts with the constitutional order because it grants the Catholic Church privileged and unreserved protection of the Catholic seal of confession, in comparison to the statutorily limited protection of analogous confidentiality in other churches, and in comparison to the protection of a comparably constitutionally valuable secular confidentiality (legal professional privilege). Article 7(4) of the treaty subsequently conflicts with the constitutional order as it allows church legal entities to make their cultural heritage accessible only under conditions set by them. Both provisions afford the Catholic Church a different legal regime, independent of the law, in contravention of the constitutionally enshrined neutrality of the state. Furthermore, Article 7(4) of the treaty conflicts with the right of access to cultural wealth and the freedom of scientific research.
Some of the challenged provisions of the treaty fully passed the review. However, the judgment of the Constitutional Court prevents the ratification of the international treaty until the non-compliance – in the areas of the seal of confession and access to cultural heritage – is remedied.