Experts often have the feeling that nothing surprises them anymore in their field of interest. The Constitutional Court of the Czech Republic has recently ruled that the Concordat already signed between this Central European country and the Holy See is contrary to its constitutional order. And then it is said that law is a boring discipline. Is this decision really a surprise? Is it not simply one of the many manifestations of national distrust towards religious institutions?
One hundred years before Luther
The Czech Republic prides itself on being one of the most atheistic countries in the world. It is true that it has deep Christian roots and has given the world numerous saints, such as Prince St. Wenceslas or the Vicar General of Prague, St. John Nepomuk. But that is history. Today, about 2-3 % of the population attends Catholic Sunday masses, and the Catholic Church is the largest confession in the country.
Many Czechs pride themselves on their distrust of organized religion. It was precisely in the Czech kingdom that, a hundred years before Luther, the first great European reformist revolution arose. The Hussite movement took its name from the controversial preacher Jan Hus (+1415). It demanded radical reforms in both church doctrine and practice and plunged the country into a civil war that lasted 17 years. European nations intervened with four crusades in support of the Catholic side. However, these ended in fiasco.
Once the wars were over, the country became, by medieval standards, an unusually religiously plural space: Catholicism and Calvinism, which later became the reform movement, coexisted in it. The change came with the Thirty Years' War, of which the battle of the Bila Hora, White Mountain (1620), another part of the myth of the Catholic foreign enemies, still lingers in the national consciousness. To this day, many still interpret it as a defeat of
The fact is that the incorporation of the Czech lands into the Austrian monarchy also resulted in their recatholization. What is certain is that the incorporation of the Czech lands into the Austrian monarchy also resulted in their recatholization. It seems that this was relatively successful and that the population adopted the Catholic faith as their own.
Far from Rome
Anti-Catholic sentiment regained strength after the creation of independent Czechoslovakia in 1918, which consciously distanced itself from the Austrian alliance between the throne and the altar. One of the slogans of the emancipation movement was «Away from Rome» and manifested itself in mass conversions to Protestant churches and the founding of the Czechoslovak National Church. Although Catholics still constituted the majority of the population, the new republic's relations with the Catholic Church were tense at best.
During the entire period of the First Czechoslovak Republic (1918-1938) it was not possible to sign a concordat with the Holy See. The most that was achieved was the so-called modus vivendi of 1928, which was signed by means of an exchange of diplomatic notes and constituted an agreement on such matters as the appointment of bishops or the harmonization of the boundaries of the dioceses with the borders of the new state. With the onset of the Nazi occupation, the modus vivendi ceased to apply.
Communist oppression
When the communists carried out the coup d'état in 1948, they initiated, especially in Bohemia, a process of systematic liquidation of the Catholic Church. Its symbols are several executions (the priests Jan Bula and Václav Drbola will be beatified in June), the suppression of all monasteries and the imprisonment of religious, the creation of collaborationist priestly organizations, the prolonged vacancy of episcopal sees, but also the persecution of the laity, which lasted until the fall of the regime.
Czech Catholics learned that it was not always necessary to flaunt their faith, as this could result in the loss of a job or the expulsion of their children from school. Faith became, precisely in the spirit of Marxist doctrine, a private matter, relegated to the closed doors of churches and homes.
Although most Catholics acted in full view of the State and the official ecclesiastical structures tried to get along in some way with the communist regime, a part of the Church went underground and created a parallel structure through secret episcopal and priestly ordinations, whose legitimacy derived from the faculties granted by Pope Pius XII.
Newly reestablished relationships
The year 1989 brought the fall of communism and religious freedom. Churches of all denominations were allowed to resume their activities, religious were brought out of hiding and monastery buildings were returned to them.
The churches gradually became partners of the state in many areas: they began to exercise their pastoral work in the prison system, the army and health care; a wide network of church charities was developed and voluntary teaching of religion in schools was allowed. Although for a time the Church enjoyed a certain prestige - as a symbol of those who did not lower their heads during communism - this position did not last long.
Czechoslovakia ceased to exist at the end of 1992 and the successor states went their own way. Slovakia resolved its relations with the Church very quickly and smoothly, to the satisfaction of both parties. It returned to the Churches the property stolen during communism and signed an international treaty with the Holy See. The Czech Republic, on the other hand, remembered its historical distrust of the Catholic Church.
With respect to assets
The Catholic Church itself regards the period after 1993 as a time of previously unknown freedom and correct relations with the state. At the same time, however, a small ecclesiastical «kulturkampf» has been going on practically throughout this period. This has manifested itself above all in questions of restitutions, cathedrals and the concordat.
Since the communist regime stripped the Church of its entire patrimonial base, logical voices were raised in favor of the restitution of its historical assets. A similar restitution process was also applied to individuals and some other organizations.
However, since a significant part of the political representation was opposed to the return of the properties to the churches, the restitution law was not passed until 2012. According to this law, part of the historic property was returned to its original ecclesiastical owners (usually these were fields and forests) and another part was replaced by a flat-rate financial compensation of €2.3 billion for all the churches as a whole. The payments of this compensation are spread over 30 years.
At the same time, however, the state stopped providing financial contributions for church activities. The Czechs thus opted for a system of total separation of property, unusual in Europe, following the U.S. model.
However, the restitution process did not affect Prague's cathedrals. The Cathedral of St. Vitus, St. Wenceslas and St. Adalbert is located in Prague Castle and is regarded by the public and politicians alike as a symbol of Czech national identity.
For some time there was a legal battle between the Church and the State over who really owned the cathedral. The ecclesiastical side eventually withdrew from the dispute and left the solution to future generations. Thus, today the cathedral is owned by the Office of the President, for which it provides an important source of income from ticket sales; the Church can only use it to celebrate masses.
Diplomatic relations yes, concordat no
When, after the fall of communism, diplomatic relations with the Holy See were restored, the signing of a concordat seemed the next logical step.
The treaty was even negotiated by a left-wing government, which at the national level was in conflict with the Church on many issues. However, during the negotiations, diplomats managed to overcome the problematic issues and the treaty could be signed in 2002.
However, the Czech Constitution requires such treaties to be approved by Parliament. To everyone's surprise, Parliament rejected the treaty.
Second attempt
After twenty years of stalemate, work began on a new treaty, and there was every reason to believe that this second attempt would succeed. The main sticking point - the restitution of historic church property - had already been resolved at the national level.
It was clear from the outset that the treaty would have a rather symbolic significance. The Czech government communicated to the Holy See, already at the beginning of the negotiations, that it was not prepared to go beyond the existing national regulations. The treaty should serve, at most, as a guarantee of the legal status already achieved, and not as an instrument for resolving outstanding issues between the contracting parties.
The Catholic side stressed that anthropocentric formulations should prevail. The treaty should, for example, guarantee inmates the right to be visited by a priest, not the authorization of the Church to act in the prison environment. The aim was to emphasize that the treaty is an instrument for the protection of the rights of individuals and not an instrument for securing the power of ecclesiastical institutions.
Controversial issues and their criticisms
Although the negotiations were conducted in a cordial atmosphere, it soon became clear that even a minimalist approach to the content of the treaty would not guarantee consensus.
Due to very divergent positions, the issue of education was completely removed from the agreement. For the Czech side it was unacceptable to guarantee church schools the right to teach in accordance with Catholic morals, to admit the approval of the deans of theological faculties by the Holy See or to nominate the components of the canonical mission.
In the end, only one controversial issue remained: the secrecy of confession and the confidentiality of pastoral agents. The Czech side repeatedly demanded that the agreement include a provision according to which the secrecy of confession is governed by Czech law, which was, of course, unacceptable to the Holy See.
The resulting compromise consisted of splitting the article on confidentiality into two paragraphs. The first simply stated: «The Czech Republic recognizes the secrecy of confession. The second included a mention of other pastoral agents whose professional secrecy was limited by national legislation. This provision would in practice affect, for example, lay »chaplains« in prisons or hospitals, workers in ecclesiastical courts or pastoral assistants in parishes.
Immediately after the signing of the treaty by Cardinal Pietro Parolin and Czech Prime Minister Petr Fiala on October 24, 2024, the public space was filled with voices of opposition. They claimed that ratification of the agreement would infringe on state sovereignty, would give priority to canon law (and, in the future, also to Islamic law) and that the agreement would allow sex scandals to be swept under the rug.
Progressive and nationalist forces, which otherwise have virtually no common ground, agreed that the treaty was bad.
Although the media were critical of the treaty, both houses of Parliament eventually gave their approval to the agreement. Only the last step remained: the signature of the President of the Republic.
The treaty before the Constitutional Court
Immediately after the vote in Parliament, a group of senators submitted a motion to the Constitutional Court for a review of the concordat's conformity with the constitutional order. The Czech Bishops' Conference even welcomed this step, perceiving it as an opportunity to convince critics that the agreement did not infringe on state sovereignty and had not been negotiated with any dishonest intentions.
The senators contested, among other things, the provision on the professional secrecy of pastoral agents; they feared a reduction of the plurality of opinions in the Church and criticized the lack of obligations on the part of the Church. According to them, in exchange for the recognition of ecclesiastical marriages, the state should have demanded that the church undertake to recognize civil divorces.
The senators' proposal was considered rather weak and doomed to failure. But then the President of the Republic entered the scene. In his brief, he called the agreement contradictory to the republican and secular character of the Czech statehood, which, according to him, is based on a conscious opposition to the privileged position of some of the churches.
In addition, he raised another issue that the group of senators had not addressed: the sacramental secrecy of confession. According to him, this conflicts with the right of victims of crimes, especially sexual crimes, to an effective investigation.
Although the Church understands the secrecy of confession as absolutely inviolable, Czech law is not so strict. The confessor is not obliged to communicate to the state the crimes he has learned about during confession, but if the penitent should reveal something to him about his future criminal plans, he is obliged to thwart them, for example, by reporting them to the police. And the president stated that the concordat would grant clerics immunity from this obligation to prevent future crime as well.
Unequal treatment of churches by the State
On Wednesday, April 1, a day traditionally dedicated to jokes in the Czech Republic, the Constitutional Court ruled that the concordat is contrary to the Czech constitutional order. Not as a whole, but on two specific provisions.
The first of these is precisely the guarantee of the secrecy of confession. According to the Constitutional Court, this provision discriminates against other churches that cannot enter into an international treaty and whose confidentiality would therefore be governed solely by domestic law, i.e. by a lower-ranking rule. To the general surprise, the obligation of the Church to make its cultural heritage accessible was also deemed unconstitutional.
The Constitutional Court interpreted the provision in question in exactly the opposite way to what the contracting parties intended. It did not see in it a gesture of the Church's willingness to make its cultural monuments accessible to researchers, but pointed out that it could lead to a restriction of access to church archives (which, however, are not public in the Czech Republic), which, according to it, would violate the freedom of scientific research and the right of access to cultural heritage.
Four judges added a dissenting opinion to the ruling. Judge Tomáš Langášek called the decision a historical curiosity. Among other things, because it was adopted by the Constitutional Court of a country that gave the world St. John Nepomuk, venerated as a martyr of the secrecy of confession.
The decision of the Constitutional Court means the definitive end of the settlement process. The Hussite Czechs have once again defeated the foreign Catholic forces. In the last quarter of a century, this is the second concordist treaty that has been negotiated and signed, only to be rejected just before the ratification process was completed.
Political science professor Petr Fiala once called the Czech Republic a «laboratory of secularization». As prime minister, he conducted a sympathetic experiment in this laboratory that failed. Perhaps the national character has manifested itself again. The Czechs are tolerant of faith, but extremely suspicious of organized religion.
The authorJakub KřížLawyer and professor of law at the Karlova University. During the negotiation of the concordat, he acted as a local expert on behalf of the Holy See.
The Pope in Spain: "Noli me tangere"."
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