"He who knows nothing lives the happiest"
The question of the relationship between the state and the church, i.e. of religious communities, both in the socio-political and legal sense, represents one of the most delicate and complex areas. Without going into the socio-political element, due to the fact that it is a matter of observation and analysis of the sciences whose subject of interest it is, the legal element, unlike the previous one, which abounds in works and various scientific theses and theories, is still terra iconita when it comes to Montenegro. Hoc loco, it is a relatively new branch or discipline of law called state-ecclesiastical law (German Staatskirchenrecht). Sources of concrete law represent casus mixtus i us, since they are determined by the personal legal tradition of the specific state, but also by the tradition that was born from the domain of religion, culture, or a certain circle of civilization.
Montenegro's delay in legally regulating relations with religious entities is just one of, as it is often colloquially said, "the countless delays of our country". Solving certain problems cannot be justified by the continuous practice of neglecting and stoking passions in the manner of "divide and rule". The topic of the so-called The fundamental contract between Montenegro and the Serbian Orthodox Church represents an inexhaustible source of destructive, irrational, intolerant and harmful monologues and dialogues throughout Montenegro. In that labyrinth, I remember the words of the famous Dutch philosopher of the era of humanism, Erasmus of Rotterdam, that the happiest is the one who knows nothing. Montenegro, in accordance with Article 14 of the Constitution, establishes the principle of a secular or lay state with the words "religious communities are separate from the state", on the one hand, but also a guarantee of equality and equality of religious communities with the words "religious communities are equal and free in performing religious ceremonies and of religious affairs", which is specified in Article 9 of the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities. The fact that Montenegro concluded the so-called state-church or state-religious contracts with the Catholic Church, the Islamic community and the Jewish community even ten years ago, points directly to the violation of the mentioned article of the Constitution, but also to intolerance and lack of commitment. The same attitude applies to the Montenegrin Orthodox Church, but also to all other religious communities that will try to exist on the territory of Montenegro.
Given the numerous comments and criticisms of the aforementioned contract, respecting the contribution that social actors made in the previous period to the public controversy, and with the intention of demystifying certain attitudes, I present my humble opinion.
Using the comparative method, some statements were highlighted that indicate ignorance of things. It is unclear that from certain addresses there is no distinction between the two subjects of international law. Montenegro did not sign a contract with the Vatican, but with the Holy See. The first is a purely territorial entity, i.e. a sovereign state created as a result of the Lateran Treaties (1929), and therefore permanently focused on profane things, while the international legal subjectivity of the other derives from the ecclesiastical dimension and is the result of historical circumstances, dominantly oriented in the sacred field of action. This is clearly evidenced by the constitutional (fundamental) laws of the Vatican City State, especially canons 360 and 361 of the Code of Canon Law of the Catholic Church (1983), as well as the documents of the Second Vatican Council. Therefore, in the sense of international law, parallels cannot be drawn between them, i.e. they are not synonymous. The argument that the name "fundamental agreement" is reserved exclusively for international agreements between the Holy See and a specific state is incorrect. Only the name "concordat" is used exclusively for the aforementioned contractual entities. The choice of contract name in international and domestic law is the exclusive right of its parties.
Several criticisms related to the preamble of the contract were highlighted, ranging from the normative value of the preamble itself, through the so-called of "calling", until the need for its modification and refinement. Preambles (from lat. prae ambulatory - to be in front) are predominantly ceremonial and declarative in form, i.e. it is a "ceremonial introduction" as Hans Kelsen points out, without any special normative force, excluding in certain cases constitutional preambles and preambles of some international treaties. The disputed preamble does not have a normative character, since it is not written like other contractual provisions, from the formal side, and does not contain certain obligations from the material side. Its intention is to introduce us to the dispositive part of the contract with the words "referring to", "departing", "respecting" and "stating".
The argument that the state referred to canon law does not stand, because the reference is made in the name of both contracting parties, which is indicated by the linguistic, logical, systematic and objective method of interpretation. It is clear, by applying the mentioned methods, what "belongs" to whom and what can be referred to. The singular calling found in the Basic Agreement with the Holy See is only one of the possible solutions. I observe the amendments to the preamble and other parts of the contract in a general tone that everything can be corrected and repaired. In this sea of potential modifications, I find the most interesting thesis about the redundancy of stating "the Christian Church in the territory of Montenegro and its presence since the apostolic times because it is not a foreign contracting party". The Christian church was inaugurated in the so-called Pentecost, on which the institute of the so-called apostolic succession (lat. succession), the institute through which the temporal (read historical) continuity of the church is derived and ensured. I observe the reference of the Christian Church through the prism of Christian universalism, the aspirations of all churches (Roman Catholic, Orthodox, Protestant, etc.) to link their source to the above, on the one hand, and the attempt to fulfill Christ's message "that all may be one" (Gospel according to John) through the movement of ecumenism whose intention is to free the church from all those historical deposits that led to misunderstandings, deviations, schisms, etc.
Certain remarks were directed at the contractual terminology, noting that it is of a non-secular or non-civil character. The terminology of each contract is conditioned by the material substrate, which may be unknown to a certain number of persons, on the one hand, and by the characteristics of the contracting parties themselves. Since the church is one of the parties, it is understandable that certain terminology that is immanent to it should be incorporated into the text of the contract. There is even an example of how secular terminology should be used by referring to the resolution of Article 4 of the Croatian Agreement on issues of common interest with the SPC, so instead of the term "ordination" use the term "appointment". Namely, the term ordination is a term in itself, it cannot be compared with appointment, but perhaps with the continuation of the same member, which is the "assignment of services", although it does not fully exhaust it.
It is also emphasized that the provision of Article 9 ("Secret confession is completely and always inviolable") is unnecessary because it is already included in our legislation (Article 108 of the Law on Criminal Procedure of Montenegro). The thesis is certainly correct, but the fact that one of the contracting parties is a church is an understandable and justified highlighting of this provision. This is evidenced by an almost identical provision in the Basic Agreement with the Holy See. a fortiori in the church there are seven sacraments in the narrow sense, while in the broader, extensive sense there are countless. They represent, conditionally speaking, the concretization of spiritual reality. As one of the seven holy secrets, it represents the secret of confession, a conditio sine qua non is her invulnerability. The apprehension in light of articles 385 (Failure to report the preparation of a criminal offense) and 386 (Failure to report a criminal offense and the perpetrator) of the Criminal Code of Montenegro was emphasized. A religious confessor is also a citizen, whose basis for the obligation to report lies in the general civic duty to report the preparation of a criminal offense in order to prevent its execution. The finding that "therefore, it should be borne in mind that the Government cannot exempt the religious officials of the SPC by this contract from the application of Article 385 of the Criminal Code of Montenegro" is a notorious fact bearing in mind the provision of Article 10 of the Constitution of Montenegro, which states: "Everyone is obliged to comply with the Constitution and the law", and Article 17, which states: "Everyone is equal before the law, regardless of any particularity or personal characteristic".
Article 7, paragraph 4 of the contract did not bypass the identical problematization. It is indicative that the same provision is found in Article 10, Paragraph 3 of the Agreement on the Arrangement of Relations of Common Interest between the Government of Montenegro and the Islamic Community in Montenegro. The aforementioned contract dates from 2012, and the period of 10 years was not enough to implement it to the end. Certain problems of the previous period are still unresolved, so the existence of this provision in the contract, based on the historical-legal method, is not superfluous.
There is also talk of the so-called "extraterritorial status" based on Article 7, paragraph 6 of the Treaty. Only subjects of international law (states and international organizations) can have the extraterritorial status of objects on the territory of Montenegro. It is indicative that almost the same provision is found in all the contracts signed by Montenegro with religious communities.
Also, "guaranteeing the exercise of public law powers in Montenegro in accordance with Orthodox canon law and the Constitution of the SPC" (Article 2, paragraph 1) cannot be interpreted in isolation but in correlation with the entirety of the article, i.e. with points 2, 3 and 4. The practical sense of the provision is that the CG recognizes that certain church documents (eg extracts from church registers of baptisms, marriages or deaths, etc.) have the status of public documents. Some contracts in this sense are moving forward despite the fact that they were concluded a long time ago. Exempli gratia Article 8 of the Croatian Agreement on Issues of Common Interest with the SPC states: "From the moment of its conclusion, a religious wedding has the effects of a civil marriage according to the provisions of the legislation of the Republic of Croatia if the parties to the contract have no civil obstacles and if the requirements stipulated by the provisions of the legislation of the Republic of Croatia are met." In correlation with Articles 15 and 16 of the Agreement, certain public law powers can be exercised in the scope of the educational milieu (issuance of diplomas, certificates, etc.).
Redundancy was highlighted in the provision of Article 16 of the contract, which guarantees the right of parents and guardians to provide their children with religious education in accordance with their own beliefs. It is indisputable that it is better and more fully prescribed in the articles of Chapter IV of the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities. Its existence is justified by the importance that this norm carries for the church, on the one hand, and by the identity of the provision in other contracts, on the other hand. Any analysis of aspects of the right to freedom of thought, conscience and religion should move in the direction of international standards, in the light of universal and regional treaties and institutions dealing with the protection of human rights and freedoms, especially the European Convention on Human Rights and Fundamental Freedoms and the European Court for human rights in Strasbourg.
Ultimately, the "second-class" legal value of this act, since it is neither a law nor an international treaty, on the one hand, an almost typical contractual form based on the previous three state-religious treaties, on the other hand, it should not give room for this much social and political tension and accompaniment. However, things are often different from what they should be.
The author is a member of the General Secretariat of CIVIS; he has a master's degree in religion and a doctorate in legal sciences
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