Czech Constitution Research Articles

Czech Constitutional Court’s Interventions in Family Law Matters: Protection of Traditional Family

Czech Constitutional Court’s Interventions in Family Law Matters: Protection of Traditional Family

The First Czech Climate Judgment: A Novel Perspective on the State’s Duty to Mitigate and on the Right to a Favourable Environment

Abstract In June 2022, a Czech climate lawsuit, Klimatická žaloba ČR, z. s. and Others v. Government of the Czech Republic and Others was decided by a first-instance court. The litigation was led against the Czech state for insufficient climate mitigation and adaptation effort. The Municipal Court in Prague largely upheld the plaintiffs’ claim that the Czech mitigation measures adopted to date were contrary to the Paris Agreement; and it found that the country must substantially strengthen its reduction rate of greenhouse gas emissions. This result—the first of its kind in the Czech Republic—was a surprise to many in a country whose courts have been conservative in environmental matters. The judgment fits in well with current trends in climate litigation and follows the arguments of landmark climate cases such as Urgenda. This article provides a summary of the lawsuit and analyses two of the most important parts of the judgment: the court’s reasoning on the state’s obligation to reduce greenhouse gas emissions and its ‘climatic’ interpretation of the fundamental right to a favourable environment, as guaranteed by the Czech Constitution.

Agricultural Issues and the Czech Constitution

The article deals with the regulation of agricultural activities in the constitutional order of the Czech Republic, which consists mainly of the Constitution and the Charter of Fundamental Rights and Freedoms. The authors focus on two basic areas of regulation that often complement each other in practice: the protection of property rights and entrepreneurship and the protection of the environment. The protection of land as part of the environment is analysed from the perspective of the constitutionally enshrined obligations of the state and also as part of the right to self-government, which is manifested in particular in the process of land-use planning. The article mainly reflects the case law of the Constitutional Court and, marginally, of the Supreme Administrative Court. The authors conclude that the individual requirements of constitutional law are interconnected and form a general but very fundamental framework for the performance of agricultural activities.

Normative Approach to the Interplay between the CCC and the CJEU/ECtHR

The article aims to identify the rules governing the mutual relationships among the European Court of Human Rights, the Court of Justice, the constitutional courts of EU’s Member States, and the EFTA Court. Its second goal is to determine to what extent their decisions and interpretive conclusions mutually bind these courts. The third goal is to present the approach taken by the Czech Constitutional Court towards the European Court of Human Rights and Court of Justice, and their decisions, on the one hand, and that of the Court of Justice to rulings made by the European Court of Human Rights and the EFTA Court, on the other hand. To find an answer to these questions, the article first analysis the normative settings and the links among individual legal systems and also among these courts. The second part of the article focuses on the case-law of these courts and thus on the reality of their “mutual” decision-making. The author concludes that there is a significant difference between the decisions of the Court of Justice and the European Court of Human Rights. While the former has the power to determine the binding and, therefore correct interpretation of EU law, the latter does not have comparable competence when it comes to the European Convention. Therefore, European Court of Human Rights decisions are only de facto binding. However, in the case law of the Constitutional Court, the exact opposite is the reality. The European Court of Human Rights judgments are unquestioningly respected and followed, while the approach to the Court of Justice’s decisions oscillates between two extremes. Some of its decisions are fully reflected, while others are silently ignored. Similarly, the Court of Justice works differently with the European Court of Human Rights decisions and the EFTA Court. The Czech Constitutional Court and the Court of Justice also have in common that they treat decisions of the European Court of Human Rights (Czech Constitutional Court) and the EFTA Court (Court of Justice) basically like their own.

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Impeachment in the U. S. Constitution and Practice – Implications for the Czech Constitution

Summary The goal of this article is to critically evaluate, what role the impeachment plays in the U. S. Constitutional system and how it contributes to ensuring accountability of elected officials in the USA. To this end, the author will provide a short overview of the development of the institution of impeachment, discuss the current regulation of impeachment in the U. S. Constitution and the application of impeachment in practice, assessing its efficiency and role in the constitutional system. Finally, the conclusions will be reflected upon from the viewpoint of the Czech Constitutional system and its model of constitutional accountability.

Obraz první Československé republiky při projednávání Ústavy ČR

This paper focuses on the image of the political system of the first Czechoslovak Republic in the political discourse connected with the preparation of the Czech Constitution in 1992. It works mainly with records of parliamentary debates between July and December 1992 and considers three types of actors: members of committees working on the constitution, constitutional lawyers and political figures with a significant informal influence, such as Václav Havel. The author asks three interrelated research questions: How was the first Czechoslovak Republic portrayed in the debates on the Czech Constitution? In what context of the discussions and argumentations did the First republic reappear? And what role did the image of the Czechoslovak Republic play in the debates? As I argue, the system of the first Czechoslovak Republic was presented almost always positively, framed by concepts of tradition, democracy, sovereignty, and stability. Conversely, the Senate was portrayed more negatively, as a symbol of inefficiency, futility and expensiveness. The political system of the First Republic and the Constitution of 1920 represented an issue that could not be ignored and had to emerge through discourse. Some speakers did not always portray it properly and rarely spoke about the problematic aspects of the functioning of the political system of the First Republic. However, it was always alluded to as a symbol whose meaning was often more important than its actual content, as it could confirm the legitimacy of power relationships and express identification with a given political line. The fact that the actors chose only certain images of the First Republic, mostly the positive ones, illustrates that they sought to use the power of the symbol of the First Republic.

EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?

Abstract Before the Czech Republic joined the European Union in 2004, its constitution has been amended with objective to guarantee constitutional conformity of the EU accession. The Czech legal system has been opened to external legal provisions and a constitutional mechanism has been established for transfer of competencies to an external entity, all framed by the explicitly formulated constitutional principle of loyalty to the international obligations of the Czech Republic. However, the ‘European amendment’ of the Czech Constitution has left several important issues unanswered, such as the principle of supremacy of the EU law or relations between the Czech Constitutional Court and the Court of Justice of the EU. This article analyses how the Czech Constitutional Court tackled with EU-related constitutional issues that emerged during the first decade of Czech membership in the EU. Focused on four key cases decided by the Czech Constitutional Court (sugar quotas, European Ar­rest Warrant, Lisbon Treaty, Slovak Pensions), the article will demonstrate how the Czech Constitutional Court combined a conservative and pragmatic approach in its EU law related case-law by formulating a constitutional doctrine of a ‘EU-friendly’ interpretation of Czech constitutional rules, while, at the same time, leaving the EU law formally outside the frontiers of Czech constitutional law and refusing EU law to be used as the ultimate argument in intra-judiciary disputes in the Czech Republic.

The Eternity Clause in the Czech Constitution as Limit to European Integration

Abstract The article raises one principle question: Does the Czech Eternity Clause pose a possible threat to a further integration of the European Union? In a concise introductory part, the article analyses the concept of the Eternity Clause of the Czech Constitution from both the substantive and procedural point of view. Afterwards, the article goes on to eval­uate whether certain aspects of the Eternity Clause (as interpreted by the Czech Constitu­tional Court) might indeed create practical problems for the EU. The opinion of the author is that the ‘danger’ is quite negligible. This is mostly due to the fact that the Czech Consti­tutional Court generally (with an exception that is not to be overestimated) adheres to euro-friendly interpretation and it has even interpreted the Eternity Clause itself (espe­cially concepts like democracy or sovereignty) with respect to the logic and nature of Eu­ropean integration. The euro-friendliness of the Czech Constitutional Court is further com­plemented by the respect that the EU law pays to national (especially constitutional) iden­tity of the member states.

Czech Presidential Elections 2013

Abstract The article describes the reasons for the constitutional amendment to the Czech Constitution turning the traditional indirect elections of the President of the Republic into direct popular vote. It analyses the shortcomings of the constitutional amendment as well as of the Act on Presidential Elections. In the two parts that follow, it addresses the two main problems of the presidential elections: the registration of the candidates and the elec­tion campaign, and analyses the milestone decisions of the Supreme Administrative Court regarding these two questions. Finally, the author reflects the first year of presidency of Miloš Zeman and his questionable attempts to broaden the scope of presidential competences by innovative interpretation of the Czech Constitution.

Legisprudence Limitations on Constitutional Amendments? Reflections on The Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act

Abstract Can a constitutional norm be unconstitutional? This idea seems, at first sight as a self-contradiction. Unconstitutionality is commonly referred to those ordinary laws, inferior to the constitution, which violate it. Constitutional norms, in contrast, carry an equal normative status as the constitution itself and other constitutional provisions. The question of unconstitutional constitutional norms recently arose in the Czech Republic. On 10 September 2009, the Czech Constitutional Court declared Constitutional Act no 195/2009 Coll, on Shortening the Fifth Term of Office of the Chamber of Deputies to be unconstitutional. The Czech Constitutional Court held that the constitutional act was an individual, specific decision and retroactive, thus violating the unamendability provision (Art 9(2)) in the Constitution, which prohibits amendments to the essential requirement for a democratic state governed by the rule of law. This article analyses the Czech Constitutional Court’s decision in a broader comparative and theoretical perspective and focuses, mainly, on four issues: first, the Czech Constitutional Court’s authority to substantively review constitutional norms; second, the appropriate standard of review when exercising judicial review of constitutional norms; third, the ‘individual, specific’ character of the constitutional act; and fourth, its alleged retroactive application. The article claims that while the Czech Constitutional Court was generally correct in claiming an authority to substantively review even constitutional norms, this was not the appropriate case in which to annul a constitutional act.

For Rule of Law, Political Plurality, and a Just Society

The President of the Czech Republic has few opportunities to actively intervene in the legislative process and express his opinion on the current situation, except for one: the power to veto laws. It is one of the most important powers belonging to the Czech Republic’s head of state, through which the president is able to influence the results of the legislative process. According to the Czech constitution, the veto must be accompanied by a written explanation, which gives the president an extraordinary opportunity to express his own view of not only the particular law being vetoed but the general political situation and direction of the country. The importance of the reasoning is greater if the state is headed by a strong figure with a clear vision of how society should function. The first Czech president, Václav Havel, was undoubtedly such a figure. This study will bring a qualitative analysis of Václav Havel’s veto reasonings, and point out how he systematically based his argumentation on three principles: rule of law, political plurality, and a just (humane) society.

"People, Your Government Has Returned to You!" The Czech Constitution of 1992 as Return to Constitutional Tradition

Unlike many of its Eastern European neighbors, the Czech Republic originates from a healthy constitutional tradition. Upon the creation of Czechoslovakia and through the modern day, the Czech Republic has had four constitutions, with major amendments to the documents of the Communist era. Three constitutions, from 1920, 1948, and 1960, served as guidelines for the creation of the 1992 constitution. Because the Czech Republic had not foreseen the Velvet Divorce from Slovakia, government officials found themselves in a rush to create a constitution for the new Czech state. The new document responded to the many injustices of the Communist era and adopted most of the precedents set in the 1920 constitution. The Czech Republic’s democratic and constitutional past sets it apart from other Eastern European countries, especially in terms of contemporary political and economic liberty.

When a Constitutional Amendment Violates the "Substantive Core": The Czech Constitutional Court's September 2009 Early Elections Decision

AbstractIn September 2009, the Constitutional Court of the Czech Republic blocked the early dissolution of the lower house of the national legislature, as it had not taken place in the set of circumstances envisioned by the 1992 Czech Constitution. Instead, it had taken place by a special ad hoc constitutional amendment to shorten the normal term of office. The Court ruled that this amendment, although enacted in the correct procedure, violated core values of the Constitution. This article provides a full background to the case, analysis of the arguments developed by the petitioner, the court's reasoning, the impact of the decision and comparison with similar rulings by the high courts in other countries.

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Some twenty years ago, the importance of international law, particularly for practical purposes, could be described as marginal in national legal orders in the socialist Central and Eastern European (CEE) Countries. The main reason for this was the dualist approach in regard to international law. Fundamental political and economic changes, such as the Velvet Revolution in Czechoslovakia, marked the end of the cold war and the beginning of a transition process. The changes in national legal orders have been accompanied by substantial modifications in the area of constitutional law, mostly resulting in the adoption of entirely new or radically modified constitutions. This is true also for the Czech Republic, Slovakia, Poland and the Russian Federation. One of the most remarkable common characteristics of the new constitutions of the CEE countries is the shift from a dualistic approach to a broad openness to international law. Despite this common feature the manifestation of this openness cannot be regarded as uniform – the methods used by states to deal with international law and to ensure the conformity of the domestic legal order with their international obligations vary. The common denominator of the constitutional orders under review is the fact that the rules of international law are considered to be a part of their national legal orders. General provisions concerning the relationship between national law and international law can be found in the Czech, Russian and Polish constitutions, but not in the Slovak constitution. The common feature of all four constitutional texts is that they take a clear position on the status of treaties, stipulating conditions (approval by parliament, promulgation, etc) under which a treaty or certain categories of treaties (eg as listed by Article 49 of the Czech Constitution) will be considered to be part of the national legal order, as well as the hierarchical status of treaties in the case of a conflict with national law. In all four countries under consideration, the rank of treaties lies between the level of the Constitution and that of ordinary parliamentary statutes. The situation is considerably different in regard to the role of customary international law: only the Russian Constitution includes not only treaties but also customary international law in the legal order. Nevertheless, Slovak, Czech and Polish constitutional provisions stipulate the commitment of the states to fulfil their obligations under international law, including customary international law. Even though legally binding, these provisions are not identical with general provisions incorporating certain categories of international law as stated above. The openness to international law is demonstrated also by the inclusion of provisions pursuant to which states can transfer certain powers to international organizations. (Such provisions were included in the constitutions of e.g. Slovakia, Poland and the Czech Republic in the context of their integration into the EU for the purpose of ensuring the direct application of Community law.) Thus, if considering the formal openness to international law, a high degree of willingness to open the domestic legal orders to international law can be discerned in the constitutional systems of the states under review. However, the extent of constitutional provisions on the relation of a particular state to international law does not necessarily strengthen its application in practice, as can be observed in the legal order of the Russian Federation.PER/PELJ Vol. 3 2008: pp. 1-49

Les évolutions de la fonction présidentielle tchèque

The Czech Republic's changing presidency The presidency stands out in the Czech constitution. Even though emphasis should be placed on a strong continuity running back to Masaryk, an analysis of the political situation since 1989 reveals significant changes, especially after the partition of Czechoslovakia. The presidency is a key institution in a parliamentary sort of system where the government has preeminence. The head of state's place and role are now changing as a function of politics and in line with the acting president's personality and conceptions. A political president, V. Klaus, has succeeded V. Havel, whose presidency had a strong moral dimension.

The Emerging Czech Constitutional Doctrine of European Law

Influence of the Czech accession to the European Union on the judicial ideology of Czech courts – Questions regarding the constitutional status of European Union law in the Czech Republic – Czech Constitutional Court: no testing of so-called necessitated implementing provisions, except when core constitutional values and principles are at stake – Extension of this doctrine to non-Community Union law – An act contrary to Union law is not as such also contrary to the Czech Constitution

Transformation Politics: The Debate Between Václav Havel and Václav Klaus on the Free Market and Civil Society

In 1994 then-Prime Minister Vaclav Klaus and playwright-President Vaclav Havel engaged in a spirited debate over proposed changes to the Czech constitution that would have decentralized power and strengthened the authority of local governments. Although few commentators at the time grasped the significance of the exchange, the dispute became the basis of a long-standing feud between the Czech leaders. "Regionalism," as the controversy was characterized in the press, went to the heart of the difficulties that postcommunist countries have faced as they began establishing free market economic systems and building the social structures neces sary to support democracy. Even beyond the immediate political and economic issues involved in the Czech Republic, the discus sion raised questions concerning the nature of human beings and the most fitting way to organize social life in the post-Cold War era.1

Stará Ústava Ceská a Uherská. (The Old Czech and Hungarian Constitution)

Stará Ústava Ceská a Uherská. (The Old Czech and Hungarian Constitution)