Slovinský Ústavní soud vydal r. 2003
názor na slučitelnost slovinského
konkordátu o právních otázkách s Ústavou Slovinska.
Převzato z webové stránky:
|
Rm-1/02 |
2003-11-19 |
|
|
Challenged act: Agreement between the Republic of Slovenia and the Holy
See on Legal Issues Thesaurus:
Legal basis:
|
||
|
Published: Official Gazette of RS, No. 118/2003 |
||
|
Abstract: Art. 1 of the Agreement between the Republic of Slovenia and the
Holy See on Legal Issues (hereinafter the Agreement), according to which the
Republic of Slovenia and the Holy See confirm the principle that the State
and the Catholic Church are independent and autonomous within their own
systems and according to which in the Republic of Slovenia the Catholic
Church acts freely under cannon law and in conformity with the legal order of
the Republic of Slovenia, is not inconsistent with the principle of
sovereignty under Article 3 of the Constitution and with the principle of the
separation of the State and religious communities in so far as
it is interpreted that in its activities in the Republic of Slovenia the
Catholic Church will respect the legal order of the Republic of Slovenia, as
follows from Items 32 and 33 of the reasoning of this Opinion. The interpretation of Art. 1 of the Agreement that is in
conformity with the Constitution is the starting-point for the review of the
conformity of Art. 2.2, Art. 3.1., Art. 10.1 and Art. 14.2 of the Agreement
with the Constitution. Art. 2.2 of the Agreement, according to which the Republic of
Slovenia recognizes the legal personality of territorial and personal Church
institutions based in the Republic of Slovenia, which have such personality
under the norms of cannon law and which the Church authority must, in
conformity with the legal order of the Republic of Slovenia, register with
the competent State authority, is not inconsistent with the principle of the
equality of religious communities under Art. 7.2 of the
Constitution and with the principles of a State governed by the rule of law
under Art. 2 of the Constitution. Art. 3.1 of the Agreement, according to which the legal order of
the Republic of Slovenia guarantees the Catholic Church freedom of activity,
liturgy and catechesis, is not inconsistent with the principle of sovereignty
under Art. 3 of the Constitution, the principle of the separation of the
State and religious communities under Art. 7.1 of the
Constitution and the principles of a State governed by the rule of law under
Art. 2 of the Constitution. Art. 10.1 of the Agreement, according to which, in conformity
with the legislation of the Republic of Slovenia and in conformity with cannon
law, the Catholic Church has the right to establish and administer schools of
every kind and level, student residencies and other educational and
upbringing institutions, is not inconsistent with the principle of the
separation of the State and religious communities under Art.
7.1 of the Constitution. Art. 14.2 of the Agreement, according to which the Republic of
Slovenia and the Holy See will further discuss all the open questions that
are not part of this Agreement, with the intention of resolving them by
agreement, is not inconsistent with the principle of sovereignty under Art. 3
of the Constitution and the principle of the separation of the State and religious
communities under Art. 7.1 of the Constitution. In the implementation of the Agreement the State authorities of the Republic of Slovenia will have to respect the contents of the Agreement provisions as determined by the Constitutional Court's interpretation. |
||
|
FULL TEXT: Rm-1/02-21 O P I N I O N
At a session held on 19 November 2003 in proceedings to review the constitutionality of the Agreement between the Republic of Slovenia and the Holy See on Legal Issues concerning the conformity of the provisions of Art. 1, Art. 2.2, Art. 3.1, Art. 10.1 and Art. 14.2 of this Agreement with the Constitution, instituted on the Government's proposal, the Constitutional Court i s s u e d t h e f o l l o w i n g o p i n i o n :
I. Art. 1 of the Agreement between the Republic of Slovenia and
the Holy See on Legal Issues (hereinafter the Agreement), according to which
the Republic of Slovenia and the Holy See confirm the principle that the
State and the Catholic Church are independent and autonomous within their own
systems and according to which in the Republic of Slovenia the Catholic
Church acts freely under cannon law and in conformity with the legal order of
the Republic of Slovenia, is not inconsistent with the principle of
sovereignty under Article 3 of the Constitution and with the principle of the
separation of the State and religious communities in so far as
it is interpreted that in its activities in the Republic of Slovenia the
Catholic Church will respect the legal order of the Republic of Slovenia, as
follows from Items 32 and 33 of the reasoning of this Opinion. II. The interpretation of Art. 1 of the Agreement that is in
conformity with the Constitution is the starting-point for the review of the
conformity of Art. 2.2, Art. 3.1., Art. 10.1 and Art. 14.2 of the Agreement
with the Constitution. III. Art. 2.2 of the Agreement, according to which the Republic
of Slovenia recognizes the legal personality of territorial and personal
Church institutions based in the Republic of Slovenia, which have such
personality under the norms of cannon law and which the Church authority
must, in conformity with the legal order of the Republic of Slovenia,
register with the competent State authority, is not inconsistent with the
principle of the equality of religious communities under Art.
7.2 of the Constitution and with the principles of a State governed by the
rule of law under Art. 2 of the Constitution. IV. Art. 3.1 of the Agreement, according to which the legal order
of the Republic of Slovenia guarantees the Catholic Church freedom of
activity, liturgy and catechesis, is not inconsistent with the principle of
sovereignty under Art. 3 of the Constitution, the principle of the separation
of the State and religious communities under Art. 7.1 of the
Constitution and the principles of a State governed by the rule of law under
Art. 2 of the Constitution. V. Art. 10.1 of the Agreement, according to which, in conformity
with the legislation of the Republic of Slovenia and in conformity with
cannon law, the Catholic Church has the right to establish and administer
schools of every kind and level, student residencies and other educational
and upbringing institutions, is not inconsistent with the principle of the
separation of the State and religious communities under Art.
7.1 of the Constitution. VI. Art. 14.2 of the Agreement, according to which the Republic
of Slovenia and the Holy See will further discuss all the open questions that
are not part of this Agreement, with the intention of resolving them by
agreement, is not inconsistent with the principle of sovereignty under Art. 3
of the Constitution and the principle of the separation of the State and religious
communities under Art. 7.1 of the Constitution. VII. In the implementation of the Agreement the State authorities of the Republic of Slovenia will have to respect the contents of the Agreement provisions as determined by the Constitutional Court's interpretation. R e a s o n i n gA.I. The Statements of the Government
1. On the basis of Art. 160.2 of the Constitution and Art. 70 of
the Constitutional Court Act (Official Gazette RS, No. 15/94 - hereinafter
ZUstS), the Government proposed that the Constitution Court issue an opinion
on the conformity of the preamble provisions and the entire (Arts. 1 to 14)
Agreement with the Constitution, in particular with its Arts. 7 and 41. By
the review of the constitutionality of the Agreement "any possible doubt
about the constitutional correctness of such an Agreement" would
allegedly be resolved, although the submitter of the proposal opined that the
Agreement was not inconsistent with the Constitution. The Government also
communicated that it had proposed to the National Assembly to postpone the
ratification procedure until the decision of the Constitutional Court. 2. At the Constitutional Court's request the Government completed
its proposal for the issuance of an opinion requiring that from the view of
conformity with Art. 7 of the Constitution, the Constitutional Court
adjudicate two issues: first, whether the entire Agreement (or several of its
provisions) entails the equalization of the legal order of the Republic of
Slovenia with cannon law and, second, whether the Agreement entails the
unequal treatment of different religious communities. The
Government opined that Arts. 1, 2, 3, 8, 9, 10 and 12 of the Agreement
undoubtedly reflect the "primacy of the legal order of the Republic of
Slovenia and that the Agreement does not bring about anything new concerning
the legal position of the Catholic Church in Slovenia and does not dictate
changes in the existing legislation". As the Agreement, according to the
Government, does not contain provisions that would ensure the Catholic Church
a privileged position in comparison with other religious communities
in the State, it does not violate the principle of the equality of religious
communities under Art. 7.2 of the Constitution. 3. Upon the Constitutional Court's request, in its supplement,
the Government defined the individual provisions of the Agreement which were
allegedly constitutionally disputable (the preamble, Arts. 1, 2, 3, 10 and 14)
"on the basis of certain opinions and viewpoints expressed in connection
with the coordination of the coalition in the media during the time of the
preparation of starting-points and at the signing of the mentioned
Agreement". 4. The preamble was allegedly inconsistent with the Constitution,
as it was not expressly written in it that the Agreement only confirmed the
already implemented legal position of the Catholic Church in the Republic of
Slovenia. Therefore, a variety of "different interpretations of the
Agreement" were allegedly possible. The Government, to the contrary,
opined that particularly the reference to Arts. 7 and 41 of the Constitution
in the Preamble confirmed how the treaty parties did not intend by the
Agreement to interfere with the constitutional system of the Republic of
Slovenia. The Government requested an opinion on Art. 1 of the Agreement due
to its concern whether the Agreement's formulation allows interpretations
according to which the Republic of Slovenia recognizes the Catholic Church
independence from the legal system of the Republic of Slovenia, and whether
it allows or gives equal significance to the legal system of the Republic of
Slovenia and cannon law. In connection with this, the Government explained
that Para. 1 of this article refers to the relation between the Republic of
Slovenia and the Holy See as two subjects of international law for which the
principle of independence and autonomy applies; in this paragraph the term
Catholic Church means the universal Church which is in international
relations represented by the Holy See. Art. 1.2 deals with the Catholic
Church in the Republic of Slovenia, in which what is emphasized is, on one
hand, the freedom of activity, in conformity with Art. 7.2 of the
Constitution, and on the other hand, that these activities must be in
conformity with the legal system of the Republic of Slovenia. Thus, according
to the Government, the text of Art. 1 does not interfere with the territorial
and personal sovereignty of the Republic of Slovenia, but, quite to the
contrary, determines that the activities of the Catholic Church must be at
every moment consistent with the legal order of the Republic of Slovenia.
Art. 2 of the Agreement was allegedly inconsistent with Art. 7.2 of the
Constitution, as it is not explicitly written in it that the Catholic Church
and its institutions are recognized a legal personality under private law, as
was written in the Agreement on the Legal Position of the Evangelistic Church
in the Republic of Slovenia (signed on 25 January 2000). In the Government's
opinion, it follows from the entire context of the Agreement and on the basis
of the rules of interpretation that these cases concern legal personality
under private law. Art. 3.1 of the Agreement was allegedly inconsistent with
the Constitution as it does not (explicitly) determine that all the
activities of the Catholic Church in the Republic of Slovenia must be in
conformity with its legal order. The Government opined that Art. 3.1 entirely
resumes the essence of Art. 7 of the Constitution regarding the free pursuit
of their activities, which must be in conformity with the legal order of the
Republic of Slovenia already on the basis of Art. 1.2 of the Agreement. The
conformity of Art. 10 of the Agreement with the Constitution was allegedly to
be reviewed by the Constitutional Court due to a concern that the contents of
this article open the possibility of the Catholic Church's interference with
the legal regulation of public schooling. The Government opined that Art. 10
in no manner interfered with the regulation of public schooling as it only
refers to schools which are established and administered by the Catholic
Church in conformity with the legislation of the Republic of Slovenia. In
connection with Art. 14.2 of the Agreement, the Government suggested that the
Constitutional Court review whether the Republic of Slovenia is, on the basis
of the mentioned provision, obliged to bilaterally resolve all open
questions, thus also such that are within the exclusive jurisdiction of the
Republic of Slovenia and concerning which the Holy See cannot cooperate or
co-decide. The Government opined that by that provision the Republic of
Slovenia did not oblige itself to resolve such open questions by agreement,
but to only strive to discuss them. Therefore, the mentioned Agreement
provision did not allegedly exceed the frameworks of courtesy usually used in
treaties. 5. On 19 April 2002 the Constitutional Court received a supplemented proposal to issue an opinion, which was submitted by the Minister of the Interior, the Minister of Labor, Family and Social Affairs and the Minister of Culture. In their supplement they asserted that at its 18 April 2002 session the Government rejected their proposal that as an appendix to the supplemented Government proposal also the documents designated as the "opinion of the minority in the Government on the conformity of the Agreement with the Holy See with the Constitution," be submitted. The Constitutional Court could not consider the mentioned documents as an application by the submitter, as it had been expressly rejected by the same. B. - I.I. The Contents of the Agreement and the Purpose of Entering Into It
6. From the title of the Agreement signed by the authorized
representatives of the Holy See and the Republic of Slovenia it already
follows that it regulates individual legal issues which refer to the position
of the Catholic Church in the Republic of Slovenia. The preamble, which
consists of four subparagraphs, demonstrates the circumstances that led to
entering into the Agreement. The first and the fourth subparagraphs refer to
political or historical circumstances that conditioned entering into the
Agreement, i.e. the establishment of diplomatic relations between the
Republic of Slovenia and the Holy See, which followed after the Holy See had
recognized the sovereignty and independence of the Republic of Slovenia in
Note No. 226/92RS dated 23 January 1992 (Decree on the Ratification of the
Agreement on the Establishment of Diplomatic Relations between the Republic
of Slovenia and the Holy See, Official Gazette RS, No. 32/92, IT, No. 7/92),
and to the historical connection of many centuries between the Slovenian
people and the Catholic Church. The second and third subparagraphs state the legal
acts that the treaty parties considered when entering into the Agreement.
Concerning the Republic of Slovenia, the Constitution, in particular Arts. 7
and 41 thereof, and concerning the Holy See, the documents of the Second
Vatican Council and cannon law norms, are cited. As cannon law norms the
Constitutional Court considered the norms contained in the Code of Church Law
(hereinafter CCL). 1 At the same time, in the
mentioned subparagraphs the significance of human rights and the
internationally recognized principles of the freedom of thought, conscience
and faith are emphasized. 7. The Catholic Church does not only operate in the area of religious matters (res spirituales) but also in other areas of social life which fall under the State jurisdiction (known as mixed matters - res mixtae). From the Agreement's text it follows that, in addition to the recognition of the autonomy and independence of activities of the Catholic Church in the area of carrying out spiritual matters, its purpose is to regulate legal issues in those legal areas in which the activities of the Catholic Church and the State overlap or intertwine. Thus, the Agreement regulates the recognition of the legal personality of Church institutions (Art. 2), the establishment of religious associations (Art. 8), the establishment and administration of schools (Art. 10), the maintenance of cultural monuments owned by the Church (Art. 11), pastoral activities in hospitals, elderly homes, prisons and other institutions in which the movement of persons is difficult (Art. 12), and the establishment of charity and social Church institutions and organizations (Art. 13). The purpose of regulating these issues by the Agreement also follows from the documents of the Umbrella Mixed Commission of the Roman Catholic Church and the Government of the Republic of Slovenia. What is particularly emphasized in Item 7 of the documents entitled "The Constitutional Provision on the Separation of the State and Religious Communities as the Starting Point of the Work of the Umbrella Mixed Commission" (hereinafter the documents of the Umbrella Mixed Commission) is the purpose of reaching agreements between the State and the Catholic Church "in matters in which their activities meet". 2 II. The Jurisdiction and the Scope of Review by the Constitutional Court
8. On the basis of Art. 160.2 of the Constitution, the
Constitutional Court is vested with the special power of the preliminary (a
priori) constitutional review of treaties. This power only refers to the
review of conformity with the Constitution, not with ratified treaties and
the general principles of international law. The purpose of the preliminary
constitutional review of treaties is to prevent the State, in the
ratification of a treaty, from assuming an international-law obligation that
would be inconsistent with the Constitution, or from being compelled, after
the ratification, to adjust the treaty with the Constitution, which could
cause serious complications. In Opinion No. Rm-1/97, dated 5 June 1997
(Official Gazette RS, No. 40/97 and DecCC VI, 86), the Constitutional Court
took the position that an international-law obligation would be contrary to
the Constitution if, on the coming into force of a treaty in internal law, it
created directly applicable unconstitutional legal norms or if it obliged the
State to adopt an internal act that contradicted the Constitution. Since a
treaty is the result of an agreement between the treaty parties, the
Constitutional Court cannot annul or annul ab initio its individual
provisions, and cannot impose on the National Assembly the obligation to
adjust it with the Constitution. In deciding on the conformity of a treaty
with the Constitution, the Constitutional Court cannot address the issue of
the appropriateness of individual solutions, neither can it address the issue
of whether the individual solutions are favorable for the State, or not. The
subject of review in proceedings to issue an opinion on the conformity of a
treaty with the Constitution are the treaty provisions in the text as it is
submitted to the ratification process. As follows from the proposal and the
appendices, by letter No. 080-00/2001-3, dated 24 January 2002, the
Government sent the Ratification of the Agreement Bill to be debated and
enacted in the National Assembly, and simultaneously proposed that it
postpone the ratification until the issuance of the opinion of the
Constitutional Court. 9. The Agreement has been reached by the Republic of Slovenia as
an independent and autonomous State and the Holy See as a sui-generis subject
of international law. 3 Treaties that the Holy See enters
into as the highest and sovereign authority of the universal Catholic Church
refer to the issues that are directly connected with the Catholic Church in
States - treaty parties - in which particular Churches are located (see Can.
368). Among the special tasks of the Pope's delegates, Can. 365 of CCL also
determines the fostering of drawing up "concordats and other similar
agreements, and giving effect to them". The Agreement that is the
subject of this constitutional review belongs to "similar
agreements". Irrespective of the special character of agreements between
the States and the Holy See (known as concordats, conventions, covenants,
modus vivendi, protocols or agreements), the prevailing theory of
international law treats them as real treaties, which do not only confirm the
existing rights of treaty parties (e.g. the free activities of the Church),
but can also create new rights and obligations for both sides. 4 What applies to the
interpretation of these agreements as well as to treaties entered into by
States are the rules of the Vienna Convention on Contract Law (Official
Gazette SFRY, No. 30/72 - hereinafter DKPMP), which was also signed and
ratified by the Holy See. 5 10. The Constitutional Court reviewed the consistency of the
challenged Agreement provisions with those provisions of the Constitution
which the applicant explicitly stated or which mutatis mutandis followed from
the reasoning of the proposal. The Agreement refers to the relation between
the Catholic Church as a religious community and the Republic
of Slovenia as a State. This relation is regulated by Art. 7 of the
Constitution, which in Para. 1 determines that the State and religious communities
are separate (the so-called principle of the separation of the State and religious
communities), while Para. 2 ensures religious communities
equal rights and freedom of activity (the so-called principle of equal rights
and the principle of the free activities of religious communities).
The principles of the equal rights and free activities of religious communities
stem from the constitutional right to freedom of conscience under Art. 41.1
and 41.2 of the Constitution, as only on the basis of the equal and free
activities of all religious communities can the exercise of
this constitutional right be guaranteed. Irrespective of the institutional
relation between the State and religious communities, the
constitutional right to the freedom of religion, which embraces
positive 6 and negative 7 aspects, represents the basis of
the entire regulation of the position of religious communities,
as it concerns respect for the fundamental constitutional rights also
protected by numerous international instruments. 8 Therefore, the establishment of
the consistency of an individual Agreement provision with the principle of
equal rights and the principle of free activities under Art. 7.2 of the
Constitution also entails the establishment of consistency with Art. 41 of
the Constitution, which the Constitutional Court did not especially state in
the operative provisions. 11. The Government proposed the review of the preamble as it does
not allegedly contain a statement or confirmation that the already existing
legal position of the Catholic Church in the Republic of Slovenia is
confirmed by the Agreement. Concerning the contents of preambles, there are
no rules in international practice which would determine that such must
contain anything other than the determination of treaty parties and their
authorized persons, and the statement on an agreement following from the text
of the treaty. Aust 9 asserts that, from the legal
point of view, it is enough to state in the preamble that parties agree as to
the contents which follow from the treaty's text. However, where parties want
to say more in the preamble of a treaty, the purpose of such is allegedly to
present the essential contents of the treaty thereby, also including the
so-called "background" of the treaty, and to define the purpose of
the treaty. Andrassy 10 states that a treaty usually has
a preamble wherein treaty parties, authorized persons and other circumstances
important for entering into the treaty, are stated. Its contents and the
answer to the question of whether the statements in it oblige the treaty
parties depend entirely on their decision. They are not bound by any rule
that would determine that all the essential aspects of a concluded treaty
must be emphasized in the preamble of such. Thus, from the legal character of
a preamble it follows that it is not possible to challenge something that it
does not contain, unless the elements that are mandatory constitutive parts
of the preamble of every treaty were left out. However, the Agreement
contains such. The fact that the treaty parties did not include certain
statement or circumstances in the Agreement's preamble cannot represent an
independent argument for the unconstitutionality of the preamble itself. For
the mentioned reasons, the review of the Agreement's preamble as proposed is
by the nature of the matter impossible. 12. The interpretation of the preamble demonstrates that the contents are an important part of the treaty. This follows from Art. 31.1 of DKPMP, which as a general rule of interpretation determines that a treaty must be interpreted in good faith according to the usual meanings which the expressions in the treaty must be ascribed, and in the light of its subject or its goal; in Para. 2 of the same article it is mentioned that what is meant by context for the purpose of interpretation is not only its text (and appendices) but also its preamble. In accordance with the mentioned rule, when interpreting individual Agreement provisions, the Constitutional Court not only considered the Constitution but also the acts stated in the Agreement's preamble: i.e. cannon law, the documents of the Second Vatican Council, particularly the Declaration on Religious Freedom (Dignitas humanae) and the Pastoral Constitution on the Church in the Modern World (Gaudium in Spes - hereinafter the Pastoral Constitution), both dated 7 December 1965 11 , and the internationally recognized principles from the area of guaranteeing the freedom of religion, in particular the principles of EKČP and the Covenant. In this framework, it also considered the documents of the Umbrella Mixed Commission. B. - II.The Review of Art. 1 of the Agreement
13. Art. 1 of the Agreement reads as follows: "The Republic of Slovenia and the Holy See shall confirm the
principle that the State and the Catholic Church are, each within its own
system, independent and autonomous and shall oblige themselves to fully
respect this principle in mutual relations and to cooperate in the progress
of human beings and the common good. In the Republic of Slovenia the Catholic Church shall act freely
according to cannon law, in accordance with the legal system of the Republic
of Slovenia." 14. The Government proposed the review of the mentioned provision
as it was concerned about the fact that the principle according to which the
State and the Catholic Church are, each within its own system, independent
and autonomous (hereinafter the "principle of independence and autonomy")
might be understood in a manner such that the Republic of Slovenia recognizes
to the Catholic Church independence from the legal system of the Republic of
Slovenia. This was considered possibly inconsistent with the Constitution,
particularly with the principle of the separation of the State and religious
communities (Art. 7.1 of the Constitution) and with the principle of
sovereignty (Art. 3.2 of the Constitution). 15. What is decisive for such review is the question of how to
interpret the text of Art. 1 of the Agreement. As the text itself of this
provision does not provide a clear answer to such, the Constitutional Court
had to determine its meaning by interpretation. Concerning such, it also had
to reason from the sources which the Agreement's preamble cites as the basis
thereof. Thus, in establishing the significance and possible interpretations
of the text, the Court had to consider besides the Constitution, also the law
of the Catholic Church (cannon law and the documents of the Second Vatican
Council), on which the "principle of independence and sovereignty"
is grounded. In accordance with Art. 31 of DKPMP, the Constitutional Court
took into account the preamble's provision from which it follows that, in
entering into the Agreement, both treaty parties considered its own law. 12 16. As follows from the documents of the Umbrella Mixed
Commission, in entering into the Agreement, the Government adopted the
following starting-points: (1) the previous negative notion of the separation
of the State and religious communities has been surpassed by
the new democratic system, and (2) it is necessary to define the positive notion
of this principle in the sense of the equality and free activities of all religious
communities. The documents stress that the meaning of the separation
of the State and religious communities is that "the State
is not bound by any religious community, nor does it privilege
or discriminate against any such, and that religious communities
are independent and autonomous in their own areas". 17. The legal position of religious communities,
which also refers to the Catholic Church in the Republic of Slovenia, is
based particularly on three constitutional principles: i.e., the principle of
the separation of the State and religious communities (Art. 7.1
of the Constitution), the principle of the equality of religious communities
and the principle of their free activities (Art. 7.2 of the Constitution). 13 The Constitution determined the
relation between the State and religious communities only on a
principled level, while the significance and contents of the mentioned
principles are still being created. 14 18. The principle of the separation of the State and religious
communities is established in a more or less consistent form as a
fundamental modern principle in a majority of modern constitutions and
legislations. The essential components of this principle are: (1) that the
State is not bound by any denomination, (2) that there is no State religion
or State church and (3) that religious communities are
independent concerning their affairs. The position of the constitution-framer
as to the establishment of this principle follows from the preparatory
documents of the Constitution. From the reasoning of the Draft Constitution,
dated 29 October 1990, there follows the substantiation of the first record
on the principle of separation. 15 Concerning which, it needs to be
emphasized "that the Church cannot perform functions that are reserved
for the State or State bodies (e.g. such as marrying, the keeping of
registers, the issuance of public documents, etc.). Thereby Church activities
in certain areas are not limited, e.g. in the area of charity activities,
education, etc., where the Church can perform such activities under the same
conditions as citizens. This also does not prevent the inclusion of certain
Church institutions in different public institutions, e.g. the inclusion of
theological faculties in universities, provided, however, that the legislation
in the relevant areas is respected." 16 In the reasoning of the Proposal
of the Constitution, dated 12 December 1991, in which the proposed text of
Art. 7 was the same as the present text, it was written that this decision
"introduces the principle of State laity. Due to the position which
should enable the equal treatment of Church(es) and various other religious
communities, Para. 1 is formed in a more general way, while Para. 2,
in addition to equality, separately ensures the free activities of religious
communities." 17 . 19. The Constitutional Court already discussed the contents of
this principle in Decision No. U-I-68/98, dated 22 November 2001 (Official
Gazette RS, No. 101/01 and OdlUS X, 192). It held that on the basis of the
general principle of the separation of the State and religious communities,
the State is obliged to be neutral, tolerant and perform non-missionary
activities. In the mentioned decision, the neutrality of the State with
respect to all religions, with which it should not identify,
was particularly emphasized as a special component of this principle. It also
adopted the position that the State has no obligation to support and foster
the activities of religious communities. However, the principle
of the separation of the State and religious communities does
not mean that any kind of support and assistance is excluded, certainly
provided that the equality of all religious communities is
ensured. It similarly reasoned the contents of this principle also in
Decision No. U-I-92/01, dated 28 February 2002 (Official Gazette RS, No.
22/02 and OdlUS XI, 25). 20. The principle of the separation of the State and religious
communities means that the State does not bind itself to any
denomination, nor does it grant any religion the position of a
State religion, nor have its own world view. It thus means
that, in the regulation of affairs from within its jurisdiction, the State
should not identify itself with a particular denomination and therefore
should not be bound by the positions of any denomination. The State can
develop common - civil - values, particularly those which enable a common
life for people with different (religious) values. Such are the
values written in international instruments as fundamental values and human
rights. State neutrality with respect to all religions and
other persuasions (including the atheistic) also means that the State does
not encourage or prohibit any ideological views, and that it ensures
individuals in this area free individual and group activities. 18 Therefore, it must also derive
the statutory regulation of issues from within its jurisdiction, on these
foundations. One of the essential elements of the principle of the State and religious
communities in the States in which its consistent implementation is
typical (France, the United States of America, Japan), is also that the State
does not financially or in any other manner support religious activities.
19 21. From the above mentioned it follows that the principle of the
separation of the State and religious communities (Art. 7.1 of
the Constitution), which is included in a democratic system (Art. 1 of the
Constitution) which ensures human rights and fundamental freedoms (Art. 5.1
of the Constitution), guarantees religious communities
completely free activities in their religious (spiritual) area.
It simultaneously prevents any extension of State power to areas which are of
an exclusively religious character or which belong to the
internal affairs of religious communities (Art. 7.2 of the
Constitution). In the areas in which the activities of religious communities
interfere with State powers, the freedom of activity of religious communities
as a composite part of the principle of the separation of the State and religious
communities is limited by State sovereignty. 22. The Republic of Slovenia became an independent and sovereign
State by the coming into force and implementation of the Basic Constitutional
Charter (TUL). The constitution-framer defined such as a value to which it
refers in the preamble of the Constitution. In Art. 3.1 of the Constitution
it expressly wrote that Slovenia is a State of all its citizens and is
founded on the permanent and inalienable right of the Slovene nation to
self-determination. State sovereignty is a characteristic of State power
being the highest authority in the State territory (the so-called supreme
State power), which is externally independent from other authorities of the
same kind and to which all other authorities are internally subordinated. 20 State sovereignty is divided
into external sovereignty, which means the independence of State power or the
State in respect to other subjects of the same kind, and internal sovereignty
which reflects the fact that in its territory the State is the supreme,
independent, original, uniform and overall organization that by its force
subordinates to it everything that is located in its territory. 21 Neither the first nor the second
aspects of State sovereignty are absolute; the external one due to the
existence of public international law, 22 the internal one due to the fact
that internal authority cannot be all-embracing. 23 The limits of internal State
sovereignty are determined by the constitutional regulation of the position
of State authorities and their powers, which provides a legitimate and legal
basis for their interference with the sphere of citizens and autonomous social
subjects. 24 23. The principle of State sovereignty thus means that
"State authorities exercise their sovereign authority and perform all
their authoritative functions in the entire State territory in the framework
of a uniform constitutional, economic, fiscal, custom and defense security
system". 25 It is not allowed to denounce by
treaties the performance of individual authoritative functions without
changing the Constitution. 26 The State has the legitimacy to
carry out its authority in the principle of people's sovereignty, which the
Constitution provides in the first sentence of Art. 3.2: "In Slovenia
power is vested in the people". This means that "political
power" is not presupposed but needs a legally valid legitimacy for its
existence and operation, and that such cannot be founded in any other
authority (e.g. God, ideology, historical goals, class interests, etc.) than
in the people themselves; the people are the only holders of power, which
they exercise directly or indirectly." 27 The principle of people's
sovereignty means that the people are the only holders of State power and
that "in the State there cannot co-exist several sovereign State
entities." 28 24. The principle of State sovereignty prevents the Republic of
Slovenia from transferring its sovereign powers determined in the
Constitution to another State, institution or religious community.
An exception to such a transfer of the exercise of certain sovereign rights
is only allowed by Art. 3.a of the Constitution (the Constitutional Act on
the Amendment to Chapter I and Arts. 47 and 68 of the Constitution of the
Republic of Slovenia, Official Gazette RS, No. 24/03 - UZ3a, 47, 68), which
refers to Slovenia's integration into international organizations and defense
alliances. 25. Concerning the above-mentioned, in matters which under the
Constitution fall within the State powers, it would be inconsistent with Art.
3 of the Constitution if the Republic of Slovenia denounced a part of its
sovereignty and transferred its powers to another institution. The principle
of the separation of the State and religious communities does
not prevent religious communities from performing activities in
different areas of social life (e.g. education, charity, social, health and
economic activities). However, due to the principle of sovereignty (internal
State sovereignty), only the State may set the limits on and conditions for
the performance of tasks from the province of State powers that can be left
to the private sphere. The principle of sovereignty simultaneously determines
the limits of the independence of any religious community, as
ensured by Art. 7.1 of the Constitution. What role and place religious communities
have in areas in which their powers and State powers meet depends on the
State regulation which ensures the basic equality of all citizens, whether
they are believers or not (Art. 14.1 and Art. 41.2 of the Constitution).
Therefore, the review of Art. 1 of the Agreement from the view of its
consistency with the principle of sovereignty under Art. 3 of the
Constitution is crucially important also for the review of its consistency
with Art. 7.1 of the Constitution. 26. What is important for understanding the meaning of both
Paras. 1 and 2 of Art. 1 of the Agreement are the contents of the
"principle of independence and autonomy" 29 , which the Catholic Church
adopted at the Second Vatican Council, in the Pastoral Constitution. Thereby
the Second Vatican Council defined "how it understood the presence and
activities of the Church in the modern world". 30 Chapter IV, particularly Art. 76
of the Pastoral Constitution, in which the relation between the political
community and the Church is defined, is important for understanding the
substantive meaning of this principle. The initial text of Art. 76.3 reads as
follows: "The Church and the political community in their own fields are
autonomous and independent from each other. Yet both, under different titles,
are devoted to the personal and social vocation of the same men. The more
that both foster sounder cooperation between themselves with due consideration
for the circumstances of time and place, the more effective will their
service be exercised for the good of all." 31 27. As a supranational religious organization (as
the Universal Church), the Catholic Church operates in States with different
constitutional backgrounds. On the basis of the Pastoral Constitution
provisions, the Catholic Church considers the "principle of independence
and autonomy" as universal and the same in all State arrangements
irrespective of the fact whether it functions in States in which the Catholic
Church has a special place or in which the principle of the separation of the
State and religious communities is not expressly determined
(e.g. Germany, Austria, Italy, Spain, Portugal), or in the States (e.g.
France, the U.S.A., Belgium, the Netherlands) in which the principle of the
separation of the Church and the State has been adopted, although not
necessarily literally and in the same (milder or more consistent) form. This
universality is emphasized in Art. 76.1 of the Pastoral Constitution, which
reads as follows: "it is very important, especially where a pluralistic
society (societas pluralistica) prevails, that there be a correct notion of
the relationship between the political community and the Church". A
characteristic of the Pastoral Constitution is that both Church powers as
well as the powers of the political community are determined therein:
"It is only right, however, that at all times and in all places, the
Church should have true freedom to preach the faith, to teach its social
doctrine, to exercise its role freely among men, and also to pass moral
judgment in those matters which regard public order when the fundamental
rights of a person or the salvation of souls require it. In this, its should
make use of all the means - but only those - which accord with the Gospel and
which correspond to the general good according to the diversity of times and
circumstances. (the last two sentences of Art. 76.5); and "it follows
also that political authority, both in the community as such and in the
representative bodies of the state, must always be exercised within the
limits of the moral order and directed toward the common good" (Art.
74.4 of the Pastoral Constitution). 28. Church law differentiates between the Church as a legal
institution and the Church as an institution of Divine Law. "This
duality is also reflected in the Church's legal dimension as church law is
composed of human law implemented by the church authority (the Pope in Rome,
ecumenical councils, bishops, etc.), and of Divine Law, which we understand
as a set of leading propositions explicitly or implicitly determined by God himself,
which the concrete solutions of church law must strictly respect." 32 In conformity with Church
teachings, Divine natural law is eternal and unalterable. "Considering
the hierarchy of legal sources, Divine law is in every respect above human
law in so far as it is adopted by God. Therefore, it is not possible for
anyone to either partially or entirely abolish or argue with the provisions
it contains." 33 According to church law, the
"principle of independence and autonomy" can be understood in a
manner such that the Catholic Church is independent and autonomous from the
State regulation in all matters that it considers religious or
spiritual or which belong to Divine law, including the so-called mixed
matters. 29. Modern States which recognize and protect human rights do not
regulate the religious life of their citizens. 34 The State must allow the free
activities of religious communities (Art. 7.2 of the
Constitution) when the matter concerns the exercise of the constitutional
right to freedom of conscience. Thus, the State must guarantee all citizens
individual and collective religious freedom. Furthermore, Art.
41 of the Constitution ensures full respect for religious freedom
and other determinations in private and public life. On the other hand, in
relation to the State, the Catholic Church does not demand a monopolistic position.
In secular matters it respects the State law and observes it or tries to make
some other agreement. 35 This is also shown in other
Agreement provisions in which it is explicitly written and clearly determined
that the Catholic Church will act in "conformity with the legal system
of the Republic of Slovenia": regarding the registration of church institutions
as legal entities (Art. 2.2), the reporting of public liturgical activities
(Art. 3.2), the establishment of associations (Art. 8), property relations
(Art. 9), and the establishment of private schools (Art. 10). A different
understanding of the relation between the State and the Catholic Church can
only occur in areas which from the position of its religious viewpoint
the Church considers as religious matters, while the State
views such as secular matters, i.e. in the areas of so-called mixed matters,
such as, e.g., public schooling and marriages. The key issue is whether Art.
1.1. of the Agreement recognizes the Church full freedom of activity in the
so-called mixed areas. 30. The answer to this question has to be sought in connection
with Art. 1.2 of the Agreement, which provides that "in the Republic of
Slovenia the Catholic Church operates freely according to cannon law, in
conformity with the legal system of the Republic of Slovenia". Paras. 1
and 2 of Art. 1 of the Agreement are by their substance mutually connected
and thus have to be interpreted on the basis of the same propositions. 36 However, also the linguistic interpretation
of Art. 1.2 does not give a clear answer to the question of the relation
between cannon law and the law of the Republic of Slovenia in the so-called
mixed areas. The comma in Art. 1.2 of the Agreement points to the fact that
the text does not mean "and in accordance with the legal system of the
Republic of Slovenia". 37 The text of this provision thus
could be understood in a manner such that the Church is obliged to act in
conformity with the legal system of the Republic of Slovenia only in those
areas which the Church considers to be secular matters. 31. Such an interpretation of the text of Art. 1.2 of the
Agreement would mean that the State recognizes the Catholic Church's right to
unilateral activities in the areas which otherwise fall within State power.
Thereby the Republic of Slovenia would renounce a part of its (State)
sovereignty, without having a basis for such in the Constitution, which would
thus be contrary to Art. 3 of the Constitution. Such an understanding would
be inconsistent with Art. 7.2 of the Constitution, according to which the
State must treat religious communities equally. If it renounced
a part of its sovereignty to the benefit of one religious community,
it would thereby grant such a privileged position in comparison with other religious
communities. 32. The text of Art. 1.2 of the Agreement can also be interpreted
in a manner such that it allows the Catholic Church to operate in conformity
with cannon law in so-called mixed areas, until such operation does not
"collide with" the legal system of the Republic of Slovenia. Such
an interpretation is closer to the original Italian version of the Agreement,
where this part of the text "e nel rispetto dell'ordine giuridico della
Repubblica di Slovenia", if literally translated, reads: "and with
respect to the legal order of the Republic of Slovenia". 38 Also, the Catholic Church
understands its independence and autonomy and thereby its relation to the
State as a dynamic process which considers the diversity of State systems,
and is prepared to adjust to the existing legal systems of the individual
States in which it operates. In footnote 1 to the Pastoral Constitution it is
especially emphasized that "it must be interpreted according to the
general rules of theological interpretation, and that in this respect, in
particular concerning its second part, it is necessary to consider changeable
circumstances with which the matters dealt with here are by their character
connected". 39 The chapter which deals with the
life of the political community 40 and which in Art. 76 determines
the "principle of independence and autonomy" also belongs to this
circle of matters in the second part of the Pastoral Constitution.
Furthermore, consideration of the State legal system is also emphasized in
the Declaration on Religious Freedom, whose Art. 4 provides
that all religious communities must have the right to liberty,
"in so far as they do not violate the justified requirements of public
order". Also the protection of religious freedom falls
within the competency of public authority, which must ensure this protection
"in conformity with the legal regulations that correspond to the
objective moral order" (Art. 7). 33. If we interpret the provisions of both paragraphs of Art. 1
on the basis of the starting points from the previous item, than this article
cannot be understood differently than in a manner such that, in its
activities in the so-called mixed areas, the Catholic Church will respect the
legal system of the Republic of Slovenia. Concerning such, it has the right
to operate, in the framework of this legal system and by constitutionally
allowed means (including its endeavors to amend the constitutional
provisions), in the direction of implementing its goals and to try to
cooperate with the State in mixed areas. 34. If the "principle of independence and autonomy" is
interpreted in such a manner and also the text of Art. 1 of the Agreement is
understood in conformity with this interpretation, this Agreement provision
is not inconsistent with Art. 3 of the Constitution. The "principle of
independence and autonomy" that is understood in such a manner is not
inconsistent with Art. 7 of the Constitution. 35. As the Constitutional Court established that the text of Art.
1 of the Agreement can be interpreted in two manners, one of which is
inconsistent with the Constitution, it issued a so-called interpretative
opinion. It had acted in such a manner already in the preliminary review of a
treaty in Opinion No. Rm-1/97. 41 Thereby it prevented, in the
event of the ratification of the Agreement, contents that are contrary to the
Constitution from being adopted into the legal system on the coming into
force of the Agreement. There is no constitutional obstacle, however, for a
treaty provision to be assumed in the internal legal system in so far as it
is interpreted in a constitutionally-conforming manner, as follows from this
Opinion. 36. Furthermore, Art. 1 of the Agreement is crucial for the understanding and significance of the other Agreement provisions that the Constitutional Court reviewed (Art. 2.2, Art. 3.1, Art. 10.1 and particularly Art. 14.2). Therefore, in their review, the Constitutional Court also reasoned from the propositions defined in this part of the reasoning of the Opinion (Item II of the operative provisions of this Opinion). B. - III.The Review of Art. 2.2 of the Agreement
37. Art. 2 reads as follows: "The Republic of Slovenia shall recognize the legal
personality of the Catholic Church. The Republic of Slovenia shall also recognize the legal
personality of all territorial and personal Church institutions based in the
Republic of Slovenia which are granted such personality according to the
norms of cannon law. According to the legal system of the Republic of
Slovenia, the Church authority must report such to the State authority in
order to register them." 38. Furthermore, Art. 2 of the Agreement was allegedly among the
constitutionally disputable articles, however, the Government expressed its
concerns only concerning its Para. 2. Thus, the Constitutional Court reviewed
it only in this part. Art. 2.2. was allegedly constitutionally disputable as
it does not determine that the Catholic Church and its organizations are
recognized legal personality under private law. By the adoption of the
Agreement the Republic of Slovenia allegedly violated the principle of the
equality of religious communities under Art. 7.2 of the
Constitution, as there is not explicitly mentioned in it that the territorial
and personal institutions of the Catholic Church in the Republic of Slovenia
are legal entities under private law, such as is determined for the
Evangelist Church in the Agreement on the Legal Position of the Evangelist
Church in the Republic of Slovenia. 42 As cannon law also deals with
public and private legal entities, there is allegedly a fear that the
Catholic Church would assert that those legal entities having the status of
public legal entities under cannon law 43 should acquire the status of
entities under public law also according to the legislation of the Republic
of Slovenia. There was a concern that the provision was not clear and precise
enough to the effect of allegedly violating the principles of a State
governed by the rule of law (Art. 2 of the Constitution). 39. As in the majority of legal systems, the so-called numerus
clausus principle also applies in the legal system of the Republic of
Slovenia, which limits the selection of the possible types of legal entities
and prohibits their mixture. 44 The existing legislation of the
Republic of Slovenia (Art. 7.1 of ZPPVS) determines that religious communities
are legal entities under civil law. Such are sui generis civil legal
entities. 40. In accordance with cannon law, juridical persons [i.e. legal
entities] are aggregates of persons or aggregates of things (Can. 115.1).
Can. 114 determines that "Aggregates 41. Accordingly, for the mentioned reasons, Art. 2.2. of the Agreement is not inconsistent with the principle of the equality of religious communities under Art. 7.2, and with the principles of a State governed by the rule of law under Art. 2 of the Constitution. B. - IV.The Review of Art. 3.1 of the Agreement
42. Art. 3 of the Agreement reads as follows: "The legal system of the Republic of Slovenia shall
guarantee the Catholic Church the freedom of activity, liturgy and
catechesis. The competent authority of the Catholic Church shall report to
the competent State authority all extraordinary liturgical activities and
other public religious gatherings (pilgrimages, processions,
meetings)." 43. Also, Art. 3 of the Agreement was allegedly among the
constitutionally disputable articles. However, the Government expressed its
concerns only in connection with its Para. 1. Thus the Constitutional Court
reviewed only this part of the provision. Art. 7.2 of the Constitution
provides that religious communities shall pursue their
activities freely. The Catholic Church is on the basis of the Constitution
already ensured the freedom of activity in all religious matters,
thus also including the matters of liturgy and catechesis. Art. 3.1 of the
Agreement means only the confirmation of the principle of the free activities
of religious communities determined in Art. 1.2 of the
Agreement. By this provision, the treaty parties wanted to emphasize
separately the most important part of its religious activities,
i.e. liturgy 46 and catechesis. 47 44. In this area the freedom of activity is a reflection of the
"principle of independence and autonomy", as follows from the
reasoning of this Opinion in connection with the review of Art. 1 of the
Agreement. The Constitutional Court repeats that what needs to be considered
as a starting point in order to understand Art. 3.1 of the Agreement is the
interpretation of its Art. 1 that is in conformity with the Constitution.
Therefore, Art. 3.1. of the Agreement cannot be understood in a manner such
that on the basis of it religious ceremonies and catechesis
could be included in State public activities, e.g. as an element of public
education (Constitutional Court Decision No. U-I-68/98). It only concerns the
regulation of the operation of the Catholic Church in the areas that fall within
the field of its free activities in conformity with the principle of the
separation of the State and religious communities. This is also
confirmed by the text of Art. 3.2., which is an exception to Para. 1. The
text of Art. 3.1 of the Agreement would undoubtedly be clearer if it were
explicitly emphasized that the freedom of activity "particularly"
or "predominantly" refers to liturgy and catechesis. However,
despite the above-mentioned, it cannot be interpreted differently than that
it exclusively refers to the religious activities of the
Catholic Church in the Republic of Slovenia. Therefore, the concerns that by
this provision the Republic of Slovenia recognizes the free
"entire" operation of the Catholic Church and renounces its powers,
are unfounded. 45. Accordingly, Art. 3.1 of the Agreement is not inconsistent with the principle of the separation of the State and religious communities under Art. 7.1, the principle of sovereignty under Art. 3 and the principles of a State governed by the rule of law under Art. 2 of the Constitution. B. - V.The Review of Art. 10.1 of the Agreement
46. Art. 10 of the Agreement reads as follows: "The Catholic Church shall in conformity with the
legislation of the Republic of Slovenia and in accordance with cannon law
have the right to establish and administer schools of all kinds and levels,
student dormitories and other educational and upbringing institutions. The State shall support the institutions determined in the
previous article under the same conditions as it supports other private
institutions of the same kind. The status of students and boarders of these
institutions shall be equal to the status of boarders in public
institutions." 47. Para. 1 was allegedly constitutionally disputable, as it
allegedly enabled interference by the Catholic Church with the legal
regulation of public schooling in the Republic of Slovenia. 48. The area of education and upbringing is that area in which
the Church's mission and State power meet. The Church strives to ensure that
in schools of every kind and level Catholic religious teaching
and upbringing should be carried out, i.e. also in public (State) schools. 48 The Constitutional Court decided
on this issue already in Decision No. U-I-68/98. The agreement does not
regulate this issue. Art. 10 of the Agreement exclusively refers to the right
to establish and administer schools, student dormitories and other
educational and upbringing organizations. In Art. 10 of the Agreement the
Republic of Slovenia recognizes the right of the Catholic Church to establish
and administer, in accordance with cannon law, 49 "schools of every kind and
level, student dormitories and other educational and upbringing
institutions," while the Catholic Church obliges itself concerning such
to respect the legislation of the Republic of Slovenia. 50 From Para. 2 [of Art. 10 of the
Agreement], which refers to Para. 1, in which the Republic of Slovenia
obliges itself to support the private institutes established by the Catholic
Church in the area of education and upbringing, in the same manner as it
supports other similar private institutes and organizations, it clearly
follows that Art. 10.1 of the Agreement relates to the establishment and
administration of private schools. 49. Considering the above-mentioned, Art. 10.1 is not inconsistent with the principle of the separation of the State and religious communities under Art. 7.1 of the Constitution. B. - VI.The Review of Art. 14.2 of the Agreement
50. Art. 14 reads as follows: "The Republic of Slovenia and the Holy See shall through
diplomatic channels resolve potential disagreements which might occur in the
interpretation or application of these Agreement provisions." The Republic of Slovenia and the Holy See shall further continue
to discuss the open issues that are not part of this Agreement, in order to
resolve such by agreement." 51. What was also constitutionally disputable was Para. 2, as it
allegedly imposed on the Republic of Slovenia the obligation to bilaterally
resolve all open issues which are not part of this Agreement, and as the
Republic of Slovenia allegedly recognizes that the Holy See shall participate
in deciding on issues that fall within its sovereign and exclusive
jurisdiction. 52. By this provision the State obliges itself to further resolve possible open issues by agreement with the Holy See. However, this provision cannot be understood differently than that the State is also in the further reaching of agreements bound by the constitutional order. Thereby, it is obliged by the "duty to negotiate," so that on the basis of diplomatic negotiations it will strive to seek agreeable solutions which would be acceptable for both sides, concerning further open issues which the Agreement does not regulate or does not regulate to a sufficient extent. The assumption of such an obligation, however, does not mean that by Art. 14.2 the Republic of Slovenia accepted in advance the obligation that in subsequent negotiations a solution acceptable for both sides will be adopted - such that it obliged itself by the "duty to reach an agreement". Thus, such a decision in itself cannot be inconsistent with the principle of the separation of the State and religious communities under Art. 7.1 of the Constitution. This principle does not exclude reaching agreements with individual religious communities. If the result of such an agreement remains within the constitutional limits, which the Constitutional Court defined for Art. 1 of the Agreement by this Opinion, it will not be inconsistent with Art. 7.1 of the Constitution. B. - VII.
53. In the framework of the discussed review, the Constitutional Court issued the opinion that the challenged Agreement provisions are not inconsistent with the Constitution. Concerning Art. 1 of the Agreement, it reached an interpretative decision which has a decisive significance also for the review of other Agreement provisions. Constitutional Court decisions are binding (Art. 1.3 of ZUstS). An opinion issued in a case reviewing the constitutionality of a treaty in the process of ratification has the same legal effects. As the Constitutional Court stressed already in Opinion No. Rm-1/97, such opinion has internal effects - it is binding on the State authorities of the Republic of Slovenia, however, in the area of international law such a decision has no effects. In the implementation of the Agreement (either in reaching subsequent agreements with the Holy See or in adopting legislation), if this is ratified and made effective, the State authorities of the Republic of Slovenia will have to consider the contents of the reviewed Agreement provisions, as was determined by the Constitutional Court's interpretation. The above-mentioned will also have to be considered by the National Assembly in the ratification of the Agreement. As the Constitutional Court emphasized in Opinion No. Rm-1/00, dated 19 April 2001 (Official Gazette RS, No. 43/01 and OdlUS X, 78), possible disagreements between the treaty parties in the implementation of the Agreement, which might occur due to a different understanding of its contents (particularly Art. 1) by either treaty party, cannot be, however, a subject of constitutional review, but a matter for political debate in the National Assembly during the process of its ratification. C.
54. The Constitutional Court issued this Opinion on the basis of Art. 70 of ZUstS and Art. 46.3.2 of the Rules of Procedure of the Constitutional Court (Official Gazette, Nos. 93/03 and 98/03-corr.) composed of: Dr. Dragica Wedam Lukić, President, and Judges Dr. Janez Čebulj, Dr. Zvonko Fišer, Lojze Janko, Marija Krisper Kramberger, LL. M., Milojka Modrijan, Dr. Ciril Ribičič, Dr. Mirjam Šrk and Jože Tratnik. The Opinion was issued unanimously. Dr. Dragica Wedam Lukić
|
||