The Constitution of Czechia: A Contextual Analysis 9781509920532, 9781509920563, 9781509920556

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THE CONSTITUTION OF CZECHIA Czechia is an outlier in Central Europe, as it has not witnessed ­significant democratic backsliding since the fall of the Berlin Wall. Still, it is a fragile democracy that is in the state of democratic careening. The democratic game has changed in decisive ways since the creation of Czechia in 1993, but the Czech democracy neither collapsed nor became more firmly consolidated in the process. This book examines why through the lenses of sociological constitutionalism. It explores not only the Czech pluralist constitution, key constitutional principles, the interaction between the legislature, executive and the judiciary, the role of local governance and application of fundamental rights in practice, but also the morphing of Czech constitutionalism as a result of personal politics, conventions, informal institutions and constitutional narratives and sentiments. It explains broader societal trends that shape a lived constitution, such as implosion of the system of political parties in the 2010s, entrenchment of private interests in the state and in party politics, low trust in the EU, disillusion of ordinary people by the current form of Czech democracy and the growing inequality gap in a highly ­egalitarian society. Besides providing a contextual and authoritative overview of the principles, doctrines and institutions that underpin the Czech pluralist constitution, this study will allow students and scholars of law and ­politics to develop an informed view of how it actually works and what its main challenges are.

Pictorial Narrative The Constitution of Czechia in Shapely Allegory The geometric design incorporates key features of Czechia’s historical, cultural and political landscape. The Lion from above adverts to the historical link with Bohemia while the three gold stars celebrate EU entry in 2004. At the heart of the composition Václav Havel, former President and champion of liberal democratic values, is encased in triangles with a symbolic heart, representing a new idealism and universalism, rising above him. The Koruna Česká (Czech currency) stands for market economics and the nation-state, a different vision by later Presidents: Václav Klaus and Miloš Zeman. The façade of the Brno Constitutional Court building is placed between these two opposing camps in the Czech politics. A hammer and sickle serve as a reminder of the communist past. The five gold stars on red echo the Chinese national flag and the crossroads between the West and the East. To the right, there is a contrast of traditional and contemporary architectural styles with the pointed cupola of Prague Castle intersecting the symbol of NATO set against the stark white outline of the Villa Tugendhat. Finally, as a reminder of national culture, a dichotomy of literary genres is represented by Milan Kundera and Jaroslav Hašek, in the guise of his creation, the Good Soldier Švejk. Putachad Artist

Constitutional Systems of the World General Editors: Benjamin L Berger, Rosalind Dixon, Andrew Harding, Heinz Klug, and Peter Leyland In the era of globalisation, issues of constitutional law and good governance are being seen increasingly as vital issues in all types of society. Since the end of the Cold War, there have been dramatic developments in democratic and legal reform, and post-conflict societies are also in the throes of reconstructing their governance systems. Even societies already firmly based on constitutional governance and the rule of law have undergone constitutional change and experimentation with new forms of governance; and their constitutional systems are increasingly subjected to comparative analysis and transplantation. Constitutional texts for practically every country in the world are now easily available on the internet. However, texts which enable one to understand the true context, purposes, interpretation and incidents of a constitutional system are much harder to locate, and are often extremely detailed and descriptive. This series seeks to provide scholars and students with accessible introductions to the constitutional systems of the world, supplying both a road map for the novice and, at the same time, a deeper understanding of the key historical, political and legal events which have shaped the constitutional landscape of each country. Each book in this series deals with a single country, or a group of countries with a common constitutional history, and each author is an expert in their field. Published volumes The Constitution of the United Kingdom; The Constitution of the United States; The Constitution of Vietnam; The Constitution of South Africa; The Constitution of Japan; The Constitution of Germany; The Constitution of Finland; The Constitution of Australia; The Constitution of the Republic of Austria; The Constitution of the Russian Federation; The Constitutional System of Thailand; The Constitution of Malaysia; The Constitution of China; The Constitution of Indonesia; The Constitution of France; The Constitution of Spain; The Constitution of Mexico; The Constitution of Israel; The Constitutional Systems of the Commonwealth Caribbean; The Constitution of Canada; The Constitution of Singapore; The Constitution of Belgium; The Constitution of Taiwan; The Constitution of Romania; The Constitutional Systems of the Independent Central Asian States; The Constitution of India; The Constitution of Pakistan; The Constitution of Ireland; The Constitution of Brazil; The Constitution of Myanmar; The Constitution of Czechia Link to series website www.bloomsburyprofessional.com/uk/series/ constitutional-systems-of-the-world

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The Constitution of Czechia A Contextual Analysis

David Kosař and

Ladislav Vyhnánek

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2021 Copyright © David Kosarˇ and Ladislav Vyhnánek, 2021 David Kosarˇ and Ladislav Vyhnánek have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/ version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2021. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Kosař, David, 1979- author.  |  Vyhnánek, Ladislav, 1984- author. Title: The Constitution of Czechia : a contextual analysis / David Kosař and Ladislav Vyhnánek. Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2021.  |  Series: Constitutional systems of the world  |  Includes bibliographical references and index. Identifiers: LCCN 2021022799 (print)  |  LCCN 2021022800 (ebook)  |  ISBN 9781509920532 (hardback)  |  ISBN 9781509952823 (paperback)  |  ISBN 9781509920556 (pdf)  |  ISBN 9781509920549 (Epub) Subjects: LCSH: Constitutional law—Czech Republic. Classification: LCC KJP5607 .K67 2021 (print)  |  LCC KJP5607 (ebook)  |  DDC 342.4371—dc23 LC record available at https://lccn.loc.gov/2021022799 LC ebook record available at https://lccn.loc.gov/2021022800 ISBN: HB: 978-1-50992-053-2 ePDF: 978-1-50992-055-6 ePub: 978-1-50992-054-9 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Acknowledgements This book would not have been published without the support of a number of people and institutions. First of all, we would like to thank the members of the Department of Constitutional Law and Political Science at the Faculty of Law of Masaryk University, with whom we were able to consult on many aspects of Czech constitutionalism while writing this book. In particular, the insights of judges Vojtěch Šimíček and Kateřina Šimáčková played a crucial role in our professional development. We also owe our gratitude to Jan Filip and Jan Svatoň, heads of our department, for having understanding for our frequent international trips. We are grateful to Adam Blisa, Ondřej Kadlec, Jan Petrov, Hubert Smekal, Katarína Šipulová and other members of the Masaryk University’s Judicial Studies Institute for numerous discussions on Czech constitutional law and politics as well as for enriching us with their interdisciplinary views. We also appreciate the remarks of Marek Antoš, Jaroslav Benák, Pavel Molek and Jan Wintr, who significantly improved the original manuscript and made sure we did not succumb to too courtcentric an understanding of Czech constitutionalism, which is typical for scholars who have worked at the Czech Constitutional Court. Finally, we would also like to thank Peter Leyland and Rosalind Dixon for careful reading of the entire manuscript and their insights that significantly improved the readability of the text for the wider audience. We are also very grateful to our research assistant, Lukáš Hamřík, for helping us with the final editing of this book. Some parts of the research leading to this book has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 Research and Innovation programme (grant no. 678375 JUDI-ARCH ERC-2015-STG).

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Contents Acknowledgements���������������������������������������������������������������������������vii Abbreviations��������������������������������������������������������������������������������� xiii Table of Cases����������������������������������������������������������������������������������xv Table of Legislation������������������������������������������������������������������������ xxi Introduction���������������������������������������������������������������������������������������1 Further Reading���������������������������������������������������������������������������8 1. The Rise of Czech Constitutionalism: History and Context����������9 I. The Rise and Fall of the Kingdom of Bohemia������������������10 II. Influence of Foreign Legal Cultures����������������������������������11 III. Czech Constitutional Scholarship and its Changing Role Over Time���������������������������������������������������������������13 IV. Inter-war Czechoslovakia�������������������������������������������������17 V. The Communist Legacy���������������������������������������������������19 VI. Democratic Transition and Dealing with the Past��������������23 VII. The Dissolution of Czechoslovakia�����������������������������������25 VIII. Return to Europe�������������������������������������������������������������26 IX. Where are the People?�������������������������������������������������������29 X. Conclusion����������������������������������������������������������������������30 Further Reading�������������������������������������������������������������������������31 2. The Challenge of a Pluralist Constitution�����������������������������������33 I. Drafting the 1993 Constitution�����������������������������������������34 II. The Pluralist Constitution������������������������������������������������39 III. The Eternity Clause���������������������������������������������������������41 IV. International and Supranational Sources���������������������������45 V. Super-statutes������������������������������������������������������������������50 VI. Constitutional Conventions����������������������������������������������51 VII. Judicial Decisions as a Source of Constitutional Law��������54 VIII. Conclusion����������������������������������������������������������������������57 Further Reading�������������������������������������������������������������������������58

x  Contents 3. Constitutional Principles������������������������������������������������������������59 I. The Democratic Principle�������������������������������������������������60 II. The Rechtsstaat Principle�������������������������������������������������64 III. Principle of the Separation of Powers��������������������������������68 IV. Principle of Sovereignty����������������������������������������������������70 V. Principle of the Unitary State�������������������������������������������71 VI. Protection of Fundamental Rights������������������������������������73 VII. The Implicit Welfare State Principle����������������������������������76 VIII. Conclusion����������������������������������������������������������������������77 Further Reading�������������������������������������������������������������������������78 4. The Czech Parliament�����������������������������������������������������������������79 I. Basic Structure: The Chamber of Deputies and the Senate������������������������������������������������������������������80 II. Competences of the Parliament and its Chambers�������������82 III. The Procedural Limits of Parliamentary Power�����������������89 IV. Parliamentary Elections and the Czech Political Party System in Turmoil���������������������������������������������������94 V. Scandals, Corruption and Immunities����������������������������� 100 VI. Conclusion�������������������������������������������������������������������� 102 Further Reading����������������������������������������������������������������������� 102 5. The Growing Tension within the Double-Headed Executive������ 104 I. The Challenge of a Double-Headed Executive���������������� 104 II. Over-achieving President and Under-achieving Governments������������������������������������������������������������������ 110 III. The State of Emergency and the Hidden Powers of the Executive������������������������������������������������������������� 122 IV. The Quest to Depoliticise the State Administration��������� 124 V. Conclusion�������������������������������������������������������������������� 125 Further Reading����������������������������������������������������������������������� 126 6. Local Governance��������������������������������������������������������������������� 127 I. The Centre and the Periphery����������������������������������������� 129 II. The Structure of Territorial Self-Governance������������������ 131 III. Election of Municipal and Regional Bodies��������������������� 132 IV. Direct Democracy at the Local Level������������������������������� 133 V. The Rise of the Municipal Power������������������������������������ 134 VI. It is All About Taxes and EU Subsidies��������������������������� 136

Contents  xi VII. Local Self-Governance in the EU������������������������������������� 139 VIII. Conclusion: Towards Moderate Decentralisation������������ 140 Further Reading����������������������������������������������������������������������� 141 7. The Judicial Branch������������������������������������������������������������������ 142 I. Setting the Scene: Key Players within Czech Judicial Politics�������������������������������������������������������������� 144 II. Who are the Czech Judges?��������������������������������������������� 146 III. The Constitutional Court����������������������������������������������� 149 IV. Basic Features of the Ordinary Judiciary������������������������� 153 V. Civil and Criminal Courts���������������������������������������������� 154 VI. Administrative Courts���������������������������������������������������� 155 VII. Prohibition of Special Courts and Tribunals������������������� 157 VIII. The War(s) of the Courts����������������������������������������������� 158 IX. Czech Courts and European Supranational Courts: A Complicated Relationship������������������������������������������� 159 X. Constitutional Politics of the Judicial Branch������������������ 161 XI. Conclusion: From the Judicialisation of Politics to the Politicisation of the Judiciary�������������������������������� 164 Further Reading����������������������������������������������������������������������� 165 8. Human Rights Constitutionalism���������������������������������������������� 166 I. The Charter and the Rest: The Pluralist Nature of Human Rights Protection in Czechia�������������������������� 168 II. How to Challenge the State: Constitutional Review, General Courts, Administrative Review and the Ombudsman������������������������������������������������������������������ 170 III. Human Dignity as a Fundamental Right?����������������������� 175 IV. Proportionality as a Key Unifying Principle?������������������� 178 V. Positive Obligations and the Challenge of Socio-economic Rights����������������������������������������������� 181 VI. Public/Private Distinction and the Importance of Drittwirkung������������������������������������������������������������� 184 VII. The Influence of the European Convention on Human Rights����������������������������������������������������������� 188 VIII. Selective Judicial Activism – Expounding or Expanding Human Rights?���������������������������������������� 192 IX. Conclusion�������������������������������������������������������������������� 194 Further Reading����������������������������������������������������������������������� 195

xii  Contents Conclusion: Dynamics of Constitutional Change and the Search for Constitutional Identity��������������������������������������� 196 I. Formal Amendments in a Rigid System��������������������������� 196 II. Constitutional Interpretation and Informal Amendments as a Mechanism of Constitutional Change���������������������� 199 III. The Unconstitutional Constitutional Amendments Doctrine������������������������������������������������������������������������ 200 IV. Conflicting Legacies and the Search for Constitutional Identity�������������������������������������������������������������������������� 202 V. Concluding Remarks: A Danger of Democratic Backsliding?������������������������������������������������������������������� 209 Index���������������������������������������������������������������������������������������������� 213

Abbreviations BVerfG

Bundesverfassungsgericht (German Federal Constitutional Court)

CAS

Constitutional Act on the Security of the Czech Republic

CEE

Central and Eastern Europe

CJEU

Court of Justice of the European Union

CMA

Crisis Management Act

CPT

Committee for the Prevention of Torture

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

EU

European Union

Federal Court

Constitutional Court of the Czech and Slovak Federal Republic

ICCPR

International Covenant on Civil and Political Rights

MP

Member of Parliament

NATO

North Atlantic Treaty Organization

OLAF

European Anti-Fraud Office

UN

United Nations

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Table of Cases European Court of Human Rights Behrami v France (Admissibility) (71412/01); Saramati v France (Admissibility) (78166/01) �����������������������������������������������������������76 Lingens v Austria (A/103) (1986) 8 EHRR 407���������������������������������� 189 European Court of Justice NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) ECLI:EU:C:1963:1�����������������������������������������������������������������������71 Marie Landtová v Česká správa socialního zabezpečení (C-399/09) [​2011] ECR I-0557�������������������������������� 47, 152, 159, 161 Czechia Decision of the Constitutional Court of 17 April 2009, Pl ÚS 57/06����������������������������������������������������������������������������������95 Decision of the Constitutional Court of 11 June 2009, II ÚS 2733/08����������������������������������������������������������������������������� 190 Decision of the Constitutional Court of 21 January 2010, I ÚS 1941/09������������������������������������������������������������������������������ 190 Decision of the Constitutional Court of 17 September 2010, IV ÚS 1921/09���������������������������������������������������������������������������� 190 Decision of the Constitutional Court of 5 May 2020, Pl ÚS 10/20�������������������������������������������������������������������������������� 123 Decision of the Constitutional Court of 16 June 2020, Pl ÚS 20/20�������������������������������������������������������������������������������� 124 Decision of the Supreme Court of 10 March 2012, 11 Tcu 135/2012������������������������������������������������������������������������� 102 Judgment of the Constitutional Court of 26 November 1992, Pl ÚS 1/92 Lustration ������������������������������������������������������������������65

xvi  Table of Cases Judgment of the Constitutional Court of 21 December 1993, Pl ÚS 19/93, Lawlessness of the Communist Regime�������� 43, 66, 201 Judgment of the Constitutional Court of 12 October 1994, Pl ÚS 4/94, Anonymous Witness������������������������������������ 74, 178, 181 Judgment of the Constitutional Court of 8 March 1995, Pl ÚS 14/94, Dreithaler��������������������������������������������������������203, 204 Judgment of the Constitutional Court of 29 May 1997, III ÚS 31/97���������������������������������������������������������������������������������43 Judgment of the Constitutional Court of 24 January 2001, Pl ÚS 42/2000, Grand Election�����������������������������������������������97, 120 Judgment of the Constitutional Court of 6 February 2001, Pl ÚS 42/2000�������������������������������������������������������������������������������43 Judgment of the Constitutional Court of 20 June 2001, Pl ÚS 14/01, Appointment of the Governor of the Czech National Bank�������������������������������������������������������������������52 Judgment of the Constitutional Court of 27 June 2001, Pl ÚS 16/99�������������������������������������������������������������������������155, 190 Judgment of the Constitutional Court of 15 January 2002, I ÚS 336/99�������������������������������������������������������������������������������� 184 Judgment of the Constitutional Court of 21 March 2002, III ÚS 256/01, Photo-recognition������������������������������������������������ 180 Judgment of the Constitutional Court of 25 June 2002, Pl ÚS 36/01, Euro Amendment�������������������������40, 43, 48, 49, 57, 75, 91, 152, 191, 194, 201 Judgment of the Constitutional Court of 15 April 2003, I ÚS 752/02���������������������������������������������������������������������������75, 191 Judgment of the Constitutional Court of 11 June 2003, Pl ÚS 11/02����������������������������������������������������������������������������������43 Judgment of the Constitutional Court of 14 July 2004, I ÚS 185/04���������������������������������������������������������������������������74, 184 Judgment of the Constitutional Court of 15 March 2005, I ÚS 367/03, Vondráčková v Rejžek������������������������� 74, 185, 188, 189 Judgment of the Constitutional Court of 22 March 2005, Pl ÚS 63/04, Prostějov���������������������������������������������������������������� 135 Judgment of the Constitutional Court 4 April 2005, IV. ÚS 146/04����������������������������������������������������������������������������� 189 Judgment of the Constitutional Court of 22 June 2005, Pl ÚS 13/05����������������������������������������������������������������������������������85 Judgment of the Constitutional Court of 28 February 2006, Pl ÚS 20/05�������������������������������������������������������������������������������� 173

Table of Cases  xvii Judgment of the Constitutional Court of 8 March 2006, Pl ÚS 50/04, Sugar Quotas III�������������������������������������������������������45 Judgment of the Constitutional Court of 28 March 2006, Pl ÚS 42/03�������������������������������������������������������������������������������� 172 Judgment of the Constitutional Court of 3 May 2006, Pl ÚS 66/04, European Arrest Warrant�����������������������������������45, 160 Judgment of the Constitutional Court of 13 July 2006, I ÚS 85/04������������������������������������������������������������������������������������75 Judgment of the Constitutional Court of 13 September 2006, Pl ÚS 57/05, Nový Bor���������������������������������������������������������������� 136 Judgment of the Constitutional Court of 15 February 2007, Pl ÚS 77/06, Legislative Riders������������������������������������������������ 91, 92 Judgment of the Constitutional Court of 13 March 2007, Pl ÚS 10/06, Plzeň���������������������������������������������������������������������� 136 Judgment of the Constitutional Court of 22 May 2007, Pl ÚS 30/06, Ostrov�������������������������������������������������������������������� 135 Judgment of the Constitutional Court of 11 July 2007, Pl ÚS 18/06, Brožová����������������������������������������������������113, 114, 115 Judgment of the Constitutional Court of 17 July 2007, IV ÚS 23/05������������������������������������������������������������������������������� 189 Judgment of the Constitutional Court of 27 September 2007, Pl ÚS 5/04, Emergency Health Care����������������������������������������������69 Judgment of the Constitutional Court of 13 November 2007, IV ÚS 301/05��������������������������������������������������������������������������������55 Judgment of the Constitutional Court of 11 December 2007, Pl ÚS 45/06, Jirkov��������������������������������������������������������������128, 135 Judgment of the Constitutional Court of 31 January 2008, Pl ÚS 24/07����������������������������������������������������������������������������������92 Judgment of the Constitutional Court of 29 February 2008, II ÚS 2268/07, Šimsa������������������������������������������������������������������ 177 Judgment of the Constitutional Court of 20 May 2008, Pl ÚS 1/08, Healthcare Fees�������������������������������������������������������� 182 Judgment of the Constitutional Court of 3 June 2008, Pl ÚS 18/08����������������������������������������������������������������������������������69 Judgment of the Constitutional Court of 21 October 2008, IV ÚS 1735/07, Co-ownership���������������������������������������������������� 186 Judgment of the Constitutional Court of 26 November 2008, n Pl ÚS 19/08, Lisbon I����������������������������������������� 43, 45, 46, 71, 204 Judgment of the Constitutional Court of 2 December 2008, Pl ÚS 43/05�������������������������������������������������������������������������������� 181

xviii  Table of Cases Judgment of the Constitutional Court of 18 August 2009, I ÚS 557/09, Limitation of Legal Capacity���������������������������������� 177 Judgment of the Constitutional Court of 10 September 2009, Pl ÚS 27/09, Melčák���������������������������������������������� 43, 44, 90, 91, 97, 152, 193, 194, 202 Judgment of the Constitutional Court of 3 November 2009, Pl ÚS 29/09, Lisbon II������������������������������������������������������ 46, 71, 160 Judgment of the Constitutional Court of 7 September 2010, Pl ÚS 11/09, Jeseník������������������������������������������������������������������� 136 Judgment of the Constitutional Court of 2 November 2010, Pl ÚS 28/09, Břeclav������������������������������������������������������������������� 136 Judgment of the Constitutional Court of 28 February 2011, IV ÚS 2011/10������������������������������������������������������������������������������63 Judgment of the Constitutional Court of 19 April 2011, Pl ÚS 53/10, Building Savings������������������������������������������������93, 193 Judgment of the Constitutional Court of 14 June 2011, Pl ÚS 29/10 Chrastava���������������������������������������������������������������� 136 Judgment of the Constitutional Court of 28 June 2011, Pl ÚS 17/10����������������������������������������������������������������������������������67 Judgment of the Constitutional Court of 31 January 2012, Pl ÚS 5/12, Holubec����������������������������������������������� 47, 161, 194, 204 Judgment of the Constitutional Court of 27 November 2012, Pl ÚS 1/12, Civil Service������������������������������������������������������������� 183 Judgment of the Constitutional Court of 7 May 2013, Pl ÚS 20/16������� 128 Judgment of the Constitutional Court of 7 May 2013, III ÚS 1669/11���������������������������������������������������������������������������� 136 Judgment of the Constitutional Court of 26 May 2014, I ÚS 2482/13, Family Law Interventions�������������������������������������� 187 Judgment of the Constitutional Court of 3 February 2015, II ÚS 2051/14, Řápková v Hůle��������������������������������������������180, 189 Judgment of the Constitutional Court of 2 March 2015, I ÚS 1565/14����������������������������������������������������������������� 74, 188, 190 Judgment of the Constitutional Court of 16 June 2015, I ÚS 3018/14������������������������������������������������������������������������������ 102 Judgment of the Constitutional Court of 27 October 2015, I ÚS 860/15�������������������������������������������������������������������������������� 190 Judgment of the Constitutional Court of 24 May 2016, I ÚS 1042/15������������������������������������������������������������������������������ 190 Judgment of the Constitutional Court of 9 August 2016, Pl ÚS 20/16�������������������������������������������������������������������������������� 135

Table of Cases  xix Judgment of the Constitutional Court of 22 November 2016, III ÚS 2200/15���������������������������������������������������������������������������� 136 Judgment of the Constitutional Court of 19 January 2017, I ÚS 3308/16��������������������������������������������������������������������������������68 Judgment of the Constitutional Court of 27 April 2017, II ÚS 795/16, TERMA���������������������������������������������������������������� 187 Judgment of the Constitutional Court of 27 June 2017, Pl ÚS 22/16����� 171 Judgment of the Constitutional Court of 12 December 2017, Pl ÚS 26/16, EET Judgment����������������������������������������������������������93 Judgment of the Constitutional Court of 20 February 2018, Pl ÚS 6/17���������������������������������������������������������������������������������� 136 Judgment of the Constitutional Court of 14 May 2019, Pl ÚS 45/17, Data Retention III��������������������������������������������������� 181 Judgment of the Constitutional Court of 30 May 2019, No 2 As 199/2018-37, Transgender People���������������������������������� 204 Judgment of the Constitutional Court of 10 November 2020, Pl ÚS 33/16, Health Registers����������������������������������������������������� 181 Judgment of the Constitutional Court of 2 February 2021, sp zn Pl ÚS 44/17, Grand Election judgement II����������������� 94, 95, 97 Judgment of the Supreme Administrative Court of 21 May 2008, 4 Ans 9/2007, Langer��������������������������������������� 52, 53, 114, 115, 200 Judgment of the Supreme Administrative Court of 13 June 2008, 2 As 9/2008�������������������������������������������������������������������������������� 172 Judgment of the Supreme Administrative Court of 17 February 2010, Pst 1/2009-348��������������������������������������������������63 Judgement of the Supreme Administrative Court of 15 January 2011, 5 As 209/2020-49, Ošťádal������������������������������� 115 Judgment of the Municipal Court of Prague of 20 April 2020, 14 A 41/2020-111����������������������������������������������������������������������� 123 Denmark Judgment of the Supreme Court of Denmark of 6 December 2016, Case no. 15/2014, Ajos case ���������������������������������������������������������47 Germany BVerfGE 73, 339 2 BvR 197/83, Solange II decision����������������������������45 34 BverfGE 269, 1973 Princess Soraya������������������������������������������������75 Judgment of the Second Senate of 5 May 2020, 2 BvR 859/15, PSPP judgment����������������������������������������������������������������������������47

xx  Table of Cases Poland Judgment of the Polish Constitutional Tribunal of 5 June 2012, ref no K 18/09, OTK ZU No 6/A/2012���������������������������������������� 114 South Africa My Vote Counts NPC v Minister of Justice and Correctional Services and Another (CCT249/17) (2018) ZACC 17; 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC) (21 June 2018), Judgment of the Constitutional Court of South Africa��������������� 173 United Nations Human Rights Committee Decision of the UN Human Rights Committee of 23 July 1996 Adam v Czech Republic, CCPR/C/57/D 586/1994����������������������� 206 Decision of the UN Human Rights Committee of 9 August 2001 Blazek et al v Czech Republic, CCPR/C/72/D/857/1999, § 5.8������ 206 Decision of the UN Human Rights Committee of 2 November 2001 Des Fours Walderode v Czech Republic, CCPR/C/73/D/747/1997, § 8.4������������������������������������������������������������������������������������������ 206

Table of Legislation International Convention on the Rights of Persons with Disabilities 2007������������� 175 Copenhagen Criteria 1993�����������������������������������������������������������������27 European Charter of Fundamental Rights 2000������������������������161, 204 European Convention on Extradition 1957����������������������������������������75 European Convention on Human Rights and Fundamental Freedoms 1950���������������������������������������������������� 34, 50, 73, 74, 159, 168, 169, 170, 188 Art 2��������������������������������������������������������������������� 74, 188, 189, 190 Art 3��������������������������������������������������������������������� 74, 188, 189, 190 Art 4������������������������������������������������������������������������������������74, 188 Art 5(5)��������������������������������������������������������������������������������75, 191 Art 6���������������������������������������������������������������������������155, 173, 190 Protocol No 12�������������������������������������������������������������������206, 207 International Covenant on Civil and Political Rights 1966����������73, 166, 170, 206 Lisbon Treaty 2009������������������������������������������������������������� 71, 139, 161 Protocol No 30�������������������������������������������������������������������������� 204 Munich Agreement (30 September 1938) (settlement reached by Germany, Great Britain, France and Italy that permitted German annexation of the Sudetenland in western Czechoslovakia)���������������������������������������������������������������� 1, 19, 206 North Atlantic Treaty Organisation��������������������������������3, 9, 27, 31, 36 United Nations Charter 1945 Art 103����������������������������������������������������������������������������������������74 National Legislation Austria Civil Code����������������������������������������������������������������������������������������12

xxii  Table of Legislation Czechia Charter of Fundamental Rights and Freedoms 1991/1993 (“transposed” into the Czech legal order by Decision No. 2/1993 Coll)����������������������������������������������11, 39, 46, 57, 75, 76, 167, 170, 199, 207 Art 1����������������������������������������������������������������66, 76, 176, 177, 178 Art 2���������������������������������������������������������������������������� 66, 109, 170 (1)�����������������������������������������������������������������������������������������61 Art 3�������������������������������������������������������������������������������������������66 Art 4������������������������������������������������������������������������������������� 66, 73 (4)��������������������������������������������������������������������������������������� 179 Art 6����������������������������������������������������������������������������������������� 190 Art 7����������������������������������������������������������������������������������177, 190 Art 8(3)������������������������������������������������������������������������������������� 198 Art 10���������������������������������������������������������������������������������������� 178 (1)�������������������������������������������������������������������������176, 177, 178 Art 12���������������������������������������������������������������������������������������� 177 Art 13���������������������������������������������������������������������������������������� 177 Art 14(4)������������������������������������������������������������������������������46, 160 Art 17(4)����������������������������������������������������������������������������������� 179 Art 21(1)�������������������������������������������������������������������������������������61 Art 22������������������������������������������������������������������������������������������62 Art 23������������������������������������������������������������������������������������������61 Art 26���������������������������������������������������������������������������������������� 182 (3)��������������������������������������������������������������������������������������� 183 Art 36(1)����������������������������������������������������������������������������������� 194 (2)��������������������������������������������������������������������������������������� 155 Civil Code 2012�������������������������������������������������������������������������12, 187 Code of Administrative Justice 2002������������������������������������������������ 155 Art 2����������������������������������������������������������������������������������������� 173 Code of Civil Procedure 1963�����������������������������������������������������12, 155 Constitution 1960�����������������������������������������������������������������������������24 Constitution 1993�������������������������������������������������� 9, 10, 11, 13, 23, 25, 29, 33, 34, 35, 36, 37, 42, 44, 45, 48, 57, 60, 70, 76, 79, 128, 145, 155, 168, 199, 206 Preamble������������������������������������������������������������������������������� 42, 76 Pt 1–8������������������������������������������������������������������������������������������37

Table of Legislation  xxiii Art 1�������������������������������������������������������������������������������������������66 (1)����������������������������������������������������������������� 41, 42, 43, 60, 203 (2)����������������������������������������������������������������������������������70, 203 Art 2���������������������������������������������������������������������������� 66, 109, 122 (1)��������������������������������������������������������������34, 37, 41, 43, 60, 68 (2)�����������������������������������������������������������������������������������������61 Art 4����������������������������������������������������������������������������������������� 171 Art 5�������������������������������������������������������������������������������������������62 Art 8������������������������������������������������������������������������������������69, 129 Art 9������������������������������������������������������������������������������������70, 197 (1)��������������������������������������������������������������������������������������� 197 (2)������������������������������������������������������������������ 34, 37, 41, 43, 60, 89, 200, 201 (3)�����������������������������������������������������������������������������������������63 Art 10��������������������������������������������������������������28, 40, 48, 49, 50, 70, 168, 169, 201 Art 10a����������������������������������������������������������������������������� 28, 49, 50 Art 13���������������������������������������������������������������������������������������� 131 Art 15(1)�������������������������������������������������������������������������������������82 Art 17������������������������������������������������������������������������������������������90 Art 18������������������������������������������������������������������������������������ 80, 94 (1)��������������������������������������������������������������������������������������� 120 Art 23������������������������������������������������������������������������������������������70 Art 35������������������������������������������������������������������������������� 81, 89, 90 Art 39(4)������������������������������������������������������������������������������49, 197 Art 40�������������������������������������������������������������������� 38, 41, 51, 84, 85 Art 41(2)�������������������������������������������������������������������������������������82 Art 43������������������������������������������������������������������������������������������85 Art 49������������������������������������������������������������������������������������������85 Art 54–61���������������������������������������������������������������������������������� 105 Art 62������������������������������������������������������������������ 105, 106, 112, 113 Art 63������������������������������������������������������������������ 105, 106, 113, 115 (1), (2)��������������������������������������������������������������������������������� 106 Art 64–67���������������������������������������������������������������������������������� 105 Art 68�������������������������������������������������������������������� 87, 105, 107, 121 (1)�����������������������������������������������������������������������������������������87 Art 69–71���������������������������������������������������������������������������������� 105 Art 72��������������������������������������������������������������������������105, 107, 121 Art 73���������������������������������������������������������������������������������105, 119 Art 74–77���������������������������������������������������������������������������������� 105

xxiv  Table of Legislation Art 78��������������������������������������������������������������������������� 40, 105, 109 Art 79���������������������������������������������������������������������������������105, 109 (3)�����������������������������������������������������������������������������������������40 Art 80�����������������������������������������������������������������������������������38, 105 Art 87���������������������������������������������������������������������������������������� 171 (1)(a)�������������������������������������������������������������������������������������48 (d)����������������������������������������������������������������������������������� 174 (3)�����������������������������������������������������������������������������������������69 Art 89(1)�������������������������������������������������������������������������������������55 (2)�����������������������������������������������������������������������������������������55 Art 91(1)������������������������������������������������������������������������������39, 157 Art 95(2)����������������������������������������������������������������������������������� 171 Art 99–105�������������������������������������������������������������������������������� 129 Art 100(1)���������������������������������������������������������������������������������� 129 Art 104�������������������������������������������������������������������������������������� 135 (3)��������������������������������������������������������������������������������������� 130 (8)��������������������������������������������������������������������������������������� 135 Art 105����������������������������������������������������������������������������������������40 Art 106(1), (2)������������������������������������������������������������������������������81 Art 110���������������������������������������������������������������������������������39, 157 Art 112����������������������������������������������������������������������������������������39 (1)����������������������������������������������������������������������������������40, 170 Eternity Clause������������������������������������������ 33, 34, 37, 41, 42, 43, 44, 57, 63, 69, 70, 77, 91, 128, 169, 197, 200, 202, 207, 208 Constitutional Law no 23/1991, Coll, on Charter of Fundamental Rights and Freedoms – see Charter of Fundamental Rights and Freedoms 1991���������������������63 Constitutional Law No 1/1993 Coll, Constitution – see Constitution 1993 Constitutional Law No 347/1997 Coll, establishing the Higher Self-Governing Units�������������������������������������������������������������40, 130 Constitutional Law No 110/1998 Coll, on the Security of the Czech Republic�����������������������������������������������������������40, 122 Art 6����������������������������������������������������������������������������������������� 122 Constitutional Law No 395/2001 Coll, 2002 Euro Amendment of the Constitution ��������������������������������������������� 168, 169, 198, 201 Constitutional Law No 515/2002 Coll, on the Referendum on the Accession to the European Union �������������������������� 30, 40, 61 Constitutional Law No 71/2012 Coll����������������������������������������116, 198

Table of Legislation  xxv Constitutional Law No. 98/2013 Coll���������������������������������������100, 198 Criminal Code Art 269(1)���������������������������������������������������������������������������������� 158 Decision No 2/1993 Coll – see Charter of Fundamental Rights and Freedoms 1991 Decree No 108/1945 Coll on the Confiscation of Enemy Property and the National Restoration Fund�������������������������������������������� 203 Law No 36/1960 Coll, on Territorial Division of the State���������������� 132 Law No 2/1969 Coll, on the Establishment of Ministries�����������107, 108 Law No 424/1991 Coll, on Political Parties���������������������������������� 62, 63 Law no. 6/1993 Coll, on the Czech National Bank���������������������������� 112 Law No 90/1995 Coll, Rules of Procedure of the Chamber of Deputies���������������������������������������������������������������������������� 83, 93 Law No 247/1995 Coll, on the Parliamentary Elections����������������������94 Law No 107/1999 Coll, Rules of Procedure of the Senate�������������������40 Law No 349/1999 Coll, on the Public Defender of Rights����������������� 175 Law No 128/2000 Coll, the Municipalities Act������������� 41, 129, 130, 134 Art 10(a)����������������������������������������������������������������������������������� 136 Law No 131/2000 Coll, on the Capital City of Prague���������������������� 131 Law No 240/2000 Coll, on Crisis Management�������������������������������� 123 Art 6����������������������������������������������������������������������������������������� 122 Law no. 258/2000 Coll, on the Protection of Public Health��������������� 123 Law no. 6/2002 Coll, on Courts and Judges Art 106���������������������������������������������������������������������������������51, 162 Law No 131/2002 Coll, on Deciding Selected Competence Disputes������� 69 Law No 218/2002 Coll, Secret Service Act���������������������������������������� 124 Law No 159/2006 Coll, Conflicts of Interests Act����������������������������� 102 Law No 234/2014 Coll, Civil Service Act����������������������������124, 125, 126 Law No 300/2017 Coll, on Co-operation between Chambers of the Parliament�������������������������������������������������������������������������85 Czechoslovakia Constitution 1918�����������������������������������������������������������������������������17 Constitution 1920�����������������������������������������17, 18, 34, 79, 80, 108, 110 France Constitution 1875��������������������������������������������������������������������������� 104 Constitution 1958�����������������������������������������������������������������������������50

xxvi  Table of Legislation Germany Basic Law �������������������������������������������������������������������������������149, 175 Art 79(3)�������������������������������������������������������������������������������������41 Hungary Constitution 2011�����������������������������������������������������������������������������50 Poland Constitution 1997 Art 31���������������������������������������������������������������������������������������� 179 Portugal Constitution Art 288����������������������������������������������������������������������������������������41 South Africa Promotion of Access to Information Act 2000��������������������������������� 173

Introduction Central Europe – Czechoslovakia – Czechia – European Union – Historical Narratives – Constitutional Identity – Sociological Constitutionalism – Constitutional Sentiments – Populism – Democratic Careening

M

odern Czechia is still a young state, as it came into being only after the dissolution of Czechoslovakia in 1993. However, most Czechs have considered Czechoslovakia to be their own state1 and viewed Czechia as a continuation of the Czechoslovak statehood and its natural successor. In order to understand Czech constitutionalism it is thus important to engage with key constitutional moments of Czechoslovak statehood. Czechoslovakia gained independence from Austria-Hungary in the wake of World War I in 1918. Therefore, in 2018 Czechia celebrated a century since Czechoslovakia came into being. In fact, the number ‘eight’ has a special place in Czech history.2 In 1938 the Western powers (France, Britain and Italy) met Hitler in Munich and eventually consented to the annexation of Czechoslovakia’s Sudetenland (mostly border regions in Bohemia) by Hitler’s Germany.3 A few days later, German troops marched into the Sudetenland, which became officially a part of the Third Reich. This marked an end of democratic statehood in the Czech lands for almost 50 years, as in February 1948 the Communist Party successfully completed a coup d’état. In 1968, when the Czechs wanted to liberalise their communist regime, the Soviet Union and its allies invaded Czechoslovakia and put an abrupt end to the Prague Spring. All of these events left a deep imprint on Czech constitutionalism. 1 See Eric Stein, Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Breakup (Ann Arbor, MI: Michigan University Press, 1997). 2 The importance of the years ending with ‘eight’ is generally accepted in Czech popular literature, see eg František Emmert, Osudové osmičky v našich dějinách (Prague: Computer Press, 2008). Other authors have warned against over-emphasising and over-symbolising the years ending with ‘eight’ (see eg František Šulc, ‘Osudové české osmičky’, Lidovky.cz, 29 December 2007). 3 See the Munich Agreement (30 September 1938) – the settlement reached by Germany, Great Britain, France and Italy that permitted German annexation of the Sudetenland in western Czechoslovakia.

2  Introduction The three national and constitutional catastrophes (1938, 1948 and 1968), each in its own way, eroded trust of the Czech people in constitutionalism and its practical capability to counter the rise of or relapse into totalitarian regime. These events also remind us that the Czech constitutionalism has its dark side that includes collaboration of key constitutional actors with the Nazi and communist regimes, long periods of lawlessness under both the Nazi and the Communist rule, and also some highly controversial policies of pro-Western post-World War  II elites such as the decrees of President Edvard Beneš that led to deportation of roughly 2.4 million ethnic Germans from the Czechoslovak territory in 1945–1946. What is perhaps even more important is the popular interpretation of these historical events that informs Czech constitutional identity. The prevailing Czech narrative about the Czech history is that Czechs were usually victims of forces beyond their control, and everything wrong came from the outside. In this narrative, just the identity of the ‘bad guys’ changed – the Habsburgs, the Nazis and then the Soviets. The reality was always significantly more complicated. The Bohemian nobility itself elected a zealous catholic, Ferdinand II, to the Bohemian throne, three years before losing to him at the Battle of White Mountain. During the First Czechoslovak Republic, Czechs failed to reflect Slovak calls for greater autonomy and then, during the Protectorate, helped Nazis to get rid of Jews and Roma people. An even less well-known fact is that the Communist Party won the parliamentary elections in Czechia in 1946, which paved the way to the 1948 communist coup d’état. Hence, Czechs, unlike Slovaks and actually unlike any other Central European country, voted the Communists to power in relatively free elections. Such issues, including mainly the core question of victim mentality and the complicated relationship with international and supranational entities, thus were arguably key determinants of the Czech statehood and its reflection by the Czech elites and the general population. As we argue throughout this book, we think that this continues to be the case. The growing Euroscepticism in Czechia, the inherent tension between competing accounts of Czech constitutional identity, and the very understanding of Czech national interest seem to be informed by these past events. That said, the most important constitutional events for understanding the current Czech constitutional system took place in 1989, when the Velvet Revolution marked an end of the four-decade-long communist rule in Czechoslovakia, and in 1993, when Czechoslovakia split into two independent states. The Czech post-Velvet constitutional project

Introduction  3 was from the very beginning designed as a liberal democratic one, with firm roots in the Western constitutional tradition. After these formative years, everything looked rosy for some time. With the exception of a few bumpier years, the Czech economy flourished in the 1990s and especially in the 2000s – before the worldwide economic crisis. Czechia was represented abroad primarily by President Václav Havel, a former dissident and playwright who became internationally visible and well-known for his support of human rights, liberal values and global responsibility. In 1999, Czechia joined NATO. Four years later, Czechs decided in its so far only constitutional referendum to accede to the European Union. Czechia officially became an EU Member State in 2004. It seemed that a bright future lay ahead. This optimistic view was not just an internal one. At this point Czechia was generally viewed as a role model for successful transformation into a democracy and a counterpoint to the sceptics who viewed an export of western democracy and liberal democratic values to the east as a naive endeavour.4 However, this seemingly smooth and direct transition to liberal democracy has turned into a winding road. Since the 2010s, signs of crises of confidence in the post-1989 development and traditional political parties have started showing more visibly and Havel’s humanistic tradition, liberal values and support for supranational engagement have been increasingly challenged. To be sure, the first disillusionment with the traditional political parties had taken place in 1998, when the two dominant political parties and natural ideological opponents, Social Democrats and the centrist Civic Democratic Party, signed the so-called Opposition Agreement, according to which they divided the state power in exchange for tacit support of the governing Social Democrats by the Civic Democratic Party.5 Yet the political system witnessed real turmoil only in the wake of the corruption scandals and the financial crisis of 2007–08, which reopened existing wounds as they affected the Czech people unevenly. As a result, the Czech people are deeply divided. The four major crises of recent years – (1) the financial and later economic crisis of 2007–2008, (2) a series of corruption scandals in Czech governmental circles, (3) the European migrant crisis, and (4) the Covid-19 pandemic – have exacerbated this division.

4 Petr Kopecký and Cas Mudde, ‘Explaining different paths of democratization: The Czech and Slovak republics’, Journal of Communist Studies and Transition Politics 16, no 3 (2000), 63–84. 5 See Tomáš Linek, Zrazení snu? (Prague: SLON, 2010) and Erik Tabery, Vládneme, nerušit: opoziční smlouva a její dědictví (Prague: Paseka, 2006).

4  Introduction The main dividing line follows the different visions of the three Czech Presidents: Václav Havel on the one hand and the duo of Václav Klaus and Miloš Zeman on the other. With some degree of simplification, there is the Havelian ‘truth and love’ bloc with emphasis on universal moral values, liberal democracy, human rights, a thick concept of the rule of law and the civic society. In contrast, the Klaus-Zeman bloc stresses a more ‘realistic’, nation-state-based understanding of the Czech politicalconstitutional project and shares a more cynical stance as regards those ‘Havelian’ universal values and idealism. More recently, Prime Minister and billionaire Andrej Babiš, who left his business and entered politics in 2011, has joined the Klaus-Zeman camp. Supporters of current President Miloš Zeman (2013–now) in particular are often disillusioned by the current form of Czech democracy and the growing inequality gap in highly egalitarian society.6 They call for a change to the current system and prefer short-term fixes rather than addressing complex problems. However, their views are not laughable nor without any support. At the end of 2017, 863,000 Czechs – nearly 10 per cent of the adult population – faced at least one seizure order, meaning their income above a legal minimum could be redirected to cover debts and fees.7 Half of them faced four or more orders. These ‘debt traps’ are the result of poor financial awareness, years of loose regulation of lenders, costly repossessions, and tough laws on bankruptcy, and help fuel support for extremist politicians in poorer areas. This is further exacerbated by the opaque education system, unreformed since the Austrian era, worrying divergence in the quality of public schools and discrimination towards Roma children in schooling.8 Many Czechs, who have been traditionally liberal towards the LGBTQ movement and were the first Central European country to adopt a same-sex union law in 2006, have even recently started to question the rights of transsexuals. Zeman and Babiš have understood this situation well. They have responded to changing attitudes and have already announced that they intend to reform the Czech constitutional system if they are given that opportunity. Both of them have expressed their desire to abolish the

6 World Inequality Database, ‘Czech Republic’, https://wid.world/country/czech-republic/. 7 Robert Muller, ‘Debt-trapped Czechs excluded as economy grows’, Reuters, 13 December 2018, https://www.reuters.com/article/us-czech-debt-idUSKBN1OC1NM. 8 Hubert Smekal and Katarína Šipulová, ‘DH v Czech Republic Six Years Later: On the Power of an International Human Rights Court to Push Through Systemic Change’, Netherlands Quarterly of Human Rights 32, no 3 (2014), 288–321.

Introduction  5 upper chamber of the Parliament, the Senate, because it unnecessarily complicates the legislative process. Babiš has also pledged to reduce the number of MPs in the lower chamber and abolish municipal assemblies. He stresses that he prefers to ‘run the state like a firm’,9 implying that any checks and balances as well as complex procedural rules are no more than a nuisance. None of these threats have materialised. However, there are visible signs of democratic decay in actions of individual office holders who work with or were elected with the support of Zeman and Babiš. For instance, one recently elected Ombudsman openly adopts an extremely narrow concept of discrimination. Even more dangerously, several judges of the Constitutional Court and the Supreme Administrative Court have alleged that President Miloš Zeman’s Chancellor had attempted to persuade the judges of these two courts to decide high-profile political cases in line with Zeman’s preferences.10 Such events were simply unheard of in the 1990s and 2000s. Some authors have claimed11 that these tensions are not surprising and that the aforementioned crises of confidence are in fact a logical consequence of the chosen constitutional design: an over-reliance on the legal aspects of constitutionalism and the ignoring of the constitutional sentiments of the people and the corresponding necessity to nurture the social roots of constitutionalism. According to this narrative, the transition was only successful on the surface and it did not come in hand in hand with a transition as regards the population’s constitutional values, which in turn has to lead to tensions and perhaps even constitutional crises. These obstacles can hardly be overcome without institutional reform or at least without a focused constitutional-political campaign aimed at strengthening the position of liberal democratic constitutional values in Czech society and increasing the post-1989 regime’s legitimacy. In sum, while the Czech constitutional system still seems to be in a relatively good shape, we can see the first cracks in it, and thus its future is hard to predict. Even though the Czech constitutional landscape has not been subject to change and challenge of the same magnitude as some

9 See eg Jan Jandourek, ‘Babiš chce řídit stat jako firmu. To asi nepůjde, stát není firma’, Reflex on-line, 6 September 2013, www.reflex.cz/clanek/info-x/51716/babis-chce-ridit-sta t-jako-firmu-to-asi-nepujde-stat-neni-firma.html. 10 See Ondřej Kundra and Andrea Procházková, ‘Mynář se pokusil ovlivnit vysoce postavené soudce’, Respekt, 6 January 2019, https://www.respekt.cz/politika/mynar-sepokusil-ovlivnit-vysoce-postavene-soudce. 11 See eg Paul Blokker, New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (Abingdon: Routledge, 2013).

6  Introduction of its Visegrad counterparts’ (Slovakia12 in the 1990s and Hungary13 and Poland14 in the 2010s and early 2020s), there are clear signs of its fragility and susceptibility to democratic backsliding. We argue in this book that the reasons for the fragility lie not in the formal structure of the constitutional system itself, but rather in the social underpinning of the key constitutional values and deep disagreement within the Czech people over these values. This makes Czechia a particularly interesting case as it is arguably an outlier among the backsliding Visegrad countries.15 The Czech constitutional institutions seem fairly robust and no clear turn along the Polish or Hungarian lines seems imminent, but we do not know for how long. We may thus ask what explains the differences between the Visegrad countries when just 16 years ago, on joining the European Union, they were seen as a unified bloc of attentive pupils of democratic transition? Are the Czech constitutional values rooted deeply enough to withstand a real earthquake? Will Czechia follow the path that Hungary and Poland now seem to be taking? Or do the ‘Hungarian’ and ‘Polish’ paradigms fit Czechia only loosely, as the major challenge lies elsewhere? Are the recent events in Czechia just a necessary ‘childhood illness’ of the constitutional system blown out of proportion by observers and does Czechia’s outlier status as a democratic outpost in Central Europe still hold? What institutions have been most effective in countering democratic decay? This book attempts to answer some of these questions. It provides a condensed contextual look at Czech constitutionalism and its underlying social development. We show that the Czech constitutional system has been built on liberal democratic values and on the legacy of the First Czechoslovak Republic (1918–1938), which has been portrayed as a success by Czechs. The key institutions and the standard constitutional design have followed well-tested constitutional patterns and early experiences with the functioning of the new constitutional system

12 See eg Valerie Bunce and Sharon Wolchik, ‘The 1998 Elections in Slovakia and the 2000 Elections in Croatia: The Model Solidifies and Is Transferred’, in Valerie Bunce and Sharon Wolchik (eds), Defeating Authoritarian Leaders in Post-Communist Countries, (New York: Cambridge University Press, 2011). 13 See eg Renáta Uitz, ‘Can You Tell When an Illiberal Democracy Is in the Making? An Appeal to Comparative Constitutional Scholarship from Hungary’, International Journal of Comparative Law 13, no 1 (2015), 279–300. 14 See Wojciech Sadurski, Poland’s Constitutional Breakdown (Oxford: Oxford University Press, 2019). 15 See Elisabeth Bakke and Nick Sitter, ‘The EU’s Enfants Terribles: Democratic Backsliding in Central Europe since 2010’, Perspectives on Politics (2020).

Introduction  7 lent themselves to optimistic interpretations. At the same time, we stress some dangerous undertones beneath Czech constitutional development that are often neglected by constitutional law scholars. In sum, we argue that Czechia is in the state of ‘democratic careening’, as the democratic game has changed in decisive ways since the 1990s even though democracy neither collapsed nor became more firmly consolidated in the process.16 More specifically, the Czech constitutional system is fragile, but it can be made to fit the ‘Hungarian’ or ‘Polish’ paradigm only very loosely as the major challenge has not been creeping capture of existing institutions, but rather the entrenchment of private interests in the state and in party politics. Here we must add two caveats. First, it is clear that throughout the book we define constitutionalism broadly and not merely as the set of written norms that form the Czech constitutional order, formal institutions and the Constitutional Court’s case law. Instead, we study the Czech constitutionalism as a lived experience. By doing so we adopt a sociological understanding of constitutionalism that incorporates also narratives, informal institutions and political context. When relevant, we also address comparative and supranational influences on Czech constitutionalism, including the crucial role of EU law. This view is not shared by many scholars in Czechia, who tend to focus almost exclusively on Czech law, but it is the only way to understand Czech constitutionalism in a European and global context. Second, throughout the book we use the term ‘Czechia’, a new name approved in 2016 by the Czech Cabinet as the official short name of the Czech Republic. We use the name Czechia to describe the Czech Republic (1993–today) and the Czech part of Czechoslovakia (1918–1992) in order to avoid confusion, as the term ‘Czech Republic’ has meant different things in Czech modern history. In 1918–1968 the ‘Czech Republic’ did not officially exist and the more common term in that era was ‘Czech lands’ (České země). After the federalisation of Czechoslovakia, the term ‘Czech Republic’ referred to the Czech subunit in the federation (1969–1992) and only after the division of Czechoslovakia did it become the official title of the independent Czech state. To make things even more complicated, during the Middle Ages, the Czech lands were referred to as Bohemia, even though the Kingdom of Bohemia often covered a much greater territory.



16 See

the Conclusion.

8  Introduction FURTHER READING Bakke, Elisabeth and Nick Sitter. ‘The EU’s Enfants Terribles: Democratic Backsliding in Central Europe since 2010’, Perspectives on Politics (2020). Biagi, Francesco. European Constitutional Courts and Transitions to Democracy. Cambridge: Cambridge University Press, 2020. Blokker, Paul. New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia. Abingdon: Routledge, 2013. Pehe, Jiří. ‘Explaining Eastern Europe: Czech Democracy Under Pressure’. Journal of Democracy 39, no 3 (2018): 65–77. Rupnik, Jacque. ‘Is East-Central Europe Backsliding? From Democracy Fatigue to Populist Backlash’. Journal of Democracy 18, no 4 (2007): 18–25. Hanley, Sean and Milada Vachudová. ‘Understanding the illiberal turn: democratic backsliding in the Czech Republic’, East European Politics 34, no 3 (2018): 276–96.

1 The Rise of Czech Constitutionalism: History and Context Bohemian Kingdom – Habsburg Empire – First Czechoslovak Republic – Communist Legacy – Dealing with the Communist Past – Dissolution of Czechoslovakia – Hasty Constitution Drafting – Accession to the European Union – Popular Sovereignty – Influence of Foreign Legal Cultures – Constitutional Scholarship

C

zechia and its 1993 Constitution came into being as a direct consequence of the dissolution of Czechoslovakia, but Czech constitutionalism has much deeper roots. Five factors have arguably influenced Czech constitutionalism more than anything else: the legacy of the First Czechoslovak Republic between the two world wars; communist rule for more than four decades; the subsequent need to deal with the communist past; the dissolution of Czechoslovakia and the politics of it; and accession to NATO and the EU and the general ‘catching up with the West’ attitude. Each of these five major factors has left a mark, each in its own way, on constitutional foundations of newly independent Czechia. However, in order to get a complete picture of Czech constitutionalism and understand the 1993 Constitution it is necessary also to look at other driving forces. In the first part of this chapter, we situate modern Czech constitutionalism in its historical and comparative context. As some constitutional narratives and sentiments are much deeper than the Czechoslovak experience, we briefly address Czech history dating back to the Middle Ages. Then, in order to place Czech constitutionalism in a broader comparative perspective, we explain the influence of foreign legal culture on Czech constitutional thinking and the changing role of scholarship in Czech constitutionalism. In the second part, we analyse

10  The Rise of Czech Constitutionalism: History and Context the impact of the inter-war era and the communist societal project on Czech constitutionalism. In the third part, we explain the narratives of the Velvet Revolution and its immediate aftermath, including transitional justice and the dissolution of Czechoslovakia, and the subsequent efforts to return to Europe, which culminated in joining the EU in 2004. At the same time, we must acknowledge the inherent problems and tensions underlying the post-Velvet constitutionalism, to which we devote the fourth part of this chapter. Here, we show that the 1993 Constitution was an elitist project, in which the people had almost no say. This creates several frictions within Czech society. Recent multiple crises in Europe that resulted in communitarian and financial insecurity have exacerbated these tensions. The key argument of this chapter is that while Czechia has so far been spared democratic decay of the type seen in Viktor Orbán’s Hungary and Jarosław Kaczyński’s Poland, populist movements and ­authoritarian tendencies are gaining momentum in Czechia as well. Some of these tendencies reflect Czechia’s communist past, while several of them are new phenomena. I.  THE RISE AND FALL OF THE KINGDOM OF BOHEMIA

The Kingdom of Bohemia, Czechia’s predecessor, was a driving force in Europe in the Middle Ages. The Bohemian king, Charles IV, even became a Holy Roman Emperor (1355–1378) and turned Prague into the capital of Europe. However, the Hussite Movement (1402–1485), viewed by many as a part of the Protestant Reformation, soon dragged Czech lands into decade-long wars with the Catholic Church and later also with Hungarian kings and Habsburg Emperors. The Czechs eventually lost and Bohemia remained under the control of the Habsburg Empire for almost three centuries after the Thirty Years War (1618–1648). Over time, however, Czechs became more assertive within the Austrian Empire. In particular, the Czech National Revival in the 18th and 19th centuries revived the Czech language, culture and national identity. Czechs inevitably tried to gain autonomy from the Austrian Empire, but to no avail. This led to growing resentment against the Habsburg rule. Even the fact that the Habsburg Empire moved from absolutist to constitutional monarchy – especially after the 1867 constitutional reform that included constitutionalisation of fundamental rights and is extremely relevant for the later Czechoslovak constitutional development – could not change that. That said, early-20th century

Influence of Foreign Legal Cultures  11 Czech constitutional scholars built heavily on German Staatslehre and engaged openly with their Austrian contemporaries such as Hans Kelsen, who was actually born in Prague.1 Many modern constitutional concepts in the 1920 Czechoslovak Constitution thus have a German-Austrian pedigree. In sum, the pre-World War II events have a limited direct impact on the institutional design of the 1993 Constitution. However, their prevalent interpretation by Czechs is important for understanding Czech constitutional narratives and constitutional identity and help us to make sense of the distinctive sociological dimensions of Czech constitutionalism.2 For instance, they explain a low level of support for the Catholic Church and a strong distrust of authority in general. In these features Czechs differ significantly from their Visegrad counterparts (Hungary, Poland, Slovakia) as well as from their German-speaking neighbours (Austria and Germany, and especially the neighbouring catholic Bavaria). In contrast to its neighbours, Czechia does not refer to the Catholic Church in its constitutional documents, even in the preambles, and instead it has explicitly entrenched the principle of laicity in the Charter of Fundamental Rights and Freedoms. In fact, Czechia is one of the most atheist states in the world. In a recent Pew Research Center survey about seven in ten Czechs (72 per cent) responded that they do not identify with a religious group. When it comes to religious belief – as opposed to religious identity – 66 per cent of Czechs said they do not believe in God, compared with just 29 per cent who do.3 Finally, the historical events and narratives from the pre-Czechoslovak era also reveal sources of deeper negative sentiments prevalent within Czech society, such as anti-Germanism that has not fully disappeared even seven decades after World War II. II.  INFLUENCE OF FOREIGN LEGAL CULTURES

That five legal cultures that have had the greatest impact on the Czechoslovak legal system throughout the 20th century are the Austrian, 1 See Section III. 2 See Paul Blokker and Chris Thornhill (eds), Sociological Constitutionalism (Cambridge: Cambridge University Press, 2017). 3 Jonathan Evans, ‘Unlike their Central and Eastern European neighbours, most Czechs don’t believe in God’, Pew Research Center, 19 June 2017, https://www.pewresearch. org/fact-tank/2017/06/19/unlike-their-central-and-eastern-european-neighbors-mostczechs-dont-believe-in-god/.

12  The Rise of Czech Constitutionalism: History and Context Hungarian, German, Soviet and American legal cultures. The influence of the Austrian and Hungarian legal systems stems from the fact that before Czechoslovakia’s declaration of independence in 1918, the Czech lands and Slovakia had belonged to Austria-Hungary for centuries. That said, one must add two caveats. First, prior to 1918 the Czech provinces belonged to the ‘Austrian part’ of the ‘dual monarchy’ of Austria-Hungary, whereas Slovakia belonged to its ‘Hungarian part’. Secondly, the First Czechoslovak Republic (1918–1938), run predominantly by Czechs, suppressed the ‘Hungarian elements’ of the legal system and tried hard to unify the laws applicable on the territory of Czechoslovakia. The Austrian legal culture thus eventually had a far greater impact in Czech lands, as well as in the whole of Czechoslovakia, than the Hungarian one.4 This also extends to the post-Velvet Revolution era, where the relevance of the Austrian legal culture witnessed a revival in Czechia, as the new 2012 Czech Civil Code draws inspiration from the Austrian civil code. The German legal system left its most significant imprint during World War II, when Hitler’s Third Reich occupied the Czech provinces, and also after the Velvet Revolution. However, Czech judicial reforms had already drawn inspiration from Germany in the inter-war period.5 The German legal culture again became increasingly relevant after the fall of the communist regime in 1989, especially due to the dominant position of the German Federal Constitutional Court and the adoption of a new 2012 Czech Civil Code that builds heavily not only on the Austrian civil code, but also on the German one. In fact, the Austrian constitutional system was considered obsolete by key politicians in the post-Velvet era. This extends also to the Czech Constitutional Court, which has rarely referred to the case law of the Austrian Constitutional Court and has drawn more inspiration from the German Bundesverfassungsgericht (BVerfG). The ‘sovietisation’ of Czechoslovak law came after the communist coup d’état in 1948, and Soviet legal culture played a crucial role until the fall of the communist regime in 1989. A Soviet-syle prokuratura, interpretative guidelines without any connection to a real case or controversy issued by the Supreme Court, simplified procedural rules, suppression of party autonomy, and a wide use of cogent norms in contract law are 4 A rare example of the Hungarian influence in Czechia is a conceptualisation of judgment in default in the Code of Civil Procedure. 5 For instance, the reform of administrative courts in 1920 (eventually never implemented) and the reform of labour courts in 1931 drew inspiration from the German judicial system.

Czech Constitutional Scholarship  13 just a few examples. This issue will also be revisited in Section VI, which discusses dealing with the past. Finally, American legal culture played a subtle but important role in both the inter-war and post-Velvet periods. In order to understand this phenomenon, it is important to realise that the founding father of Czechoslovakia, its first President and a towering figure of the inter-war era, Tomáš Garrigue Masaryk, married an American wife, spent quite some time in the United States, and grew fond of its constitutional system. In the post-Velvet era, the connection of the first President Václav Havel to the United States, coupled with the admiration of the United States by key drafters of the 1993 Constitution, such as Vojtěch Cepl who briefly studied at the Michigan University Law School during the Prague Spring in the late 1960s, played an important role in Czech constitutionalism. Most importantly, bicameralism, not very common in small and ethnically homogenous states such as Czechia, and the American model of selection of constitutional Justices, which cannot be found in its pure form anywhere else in Europe, are typical examples of this influence. All of these five legal cultures, each in its own way, influenced the development of Czech constitutionalism. In terms of legal families, prior to 1918 the Czech lands belonged to the civil law tradition and, more specifically, to its German subfamily. This tradition differs from the common law family in many ways. Most importantly, the civil law system relies primarily on a codified body of general abstract principles, often having their origins in Roman law, which control the exercise of judicial discretion, in contrast to the judge-centred common law family, where law is developed on a case-by-case basis. The same holds true for Czechoslovakia until 1948. The classification of the Czechoslovak legal system under communist rule depends on whether one considers socialist law to be a separate family of law, distinct from the civil law family, or as a mere subfamily of the civil law tradition. However, this debate has become obsolete because after the fall of the communist regime in 1989 Czechia clearly returned to the ‘mainstream’ civil law tradition. The more intriguing and still relevant question is which narratives and institutions can be traced back to the inter-war period, or even to Austria-Hungary, and which mechanisms were introduced by the communist regime. III.  CZECH CONSTITUTIONAL SCHOLARSHIP AND ITS CHANGING ROLE OVER TIME

Czech constitutional scholarship, as well as legal education more generally, has undergone a tumultuous development. The Faculty of Law was

14  The Rise of Czech Constitutionalism: History and Context one of the four original faculties established at the Charles University in Prague in 1348. It stopped functioning during the Hussite Wars in the early 15th century and was opened again only during the Thirty Years War (1618–1648). The faculty flourished during the 19th century when both Czech and German professors taught there, initially only in German, but later on also in Czech. The Czech National Revival and growing tensions between Czech and German-speaking professors led to the split of the Charles University into two institutions, one providing education in Czech and the other in German. Hence, there were also two law faculties. Despite the tensions between them, Czech constitutional scholars have built heavily on German Staatslehre and engaged openly with their German and Austrian contemporaries. After World War I and the independence of Czechoslovakia, a second law faculty was established at the newly created Masaryk University in Brno. The main author of the 1920 Czechoslovak Constitution, Franz Weyr, became its first dean and developed the ‘Brno School’ of pure theory of law, which was close to the Vienna School led by Hans Kelsen. The contribution of constitutional scholars and lawyers in general to the state-building was enormous. Law professors not only helped to draft the laws of the newly created Czechoslovak state, but also many of them became MPs. The parliamentary debates were nuanced and rich and the quality of legal arguments employed, for instance during the passing the Automobile Law, are unmatched even in the modern era. Constitutional scholarship had a profound comparative component, the debates in law journals were open and heated, and the leading constitutional law monographs of that era were on par with foreign scholarship. This is not surprising as a typical law professor in Prague and Brno during the interwar era spoke at least Czech, German and Latin. The dark era started in 1939, when the Nazis closed all Czech universities. Several professors were executed and others ended up in the concentration camps. Symbolically, the building of the Prague Law School became the headquarters of the SS (Schutzstaffel) and the Brno Law School building turned into the seat of the Gestapo, both being the key agencies of terror within German-occupied territory. After World War II, both faculties reopened, but the 1948 communist coup d’état put a quick end to pluralistic and autonomous legal education. Brno Law School was closed completely in 1950 and re-opened only after the Prague Spring in 1969. In Prague, top law professors were dismissed or sidelined. Those who were politically active were persecuted by the communist regime even more harshly. Some received long prison sentences, including leading constitutional scholar Zdeněk Peška, or

Czech Constitutional Scholarship  15 death penalties in major communist show trials. The role of constitutional scholarship in public life diminished. Communists viewed lawyers with suspicion as they represented the bourgeois caste. The fact that Marxism predicted the withering away of law from society did not help either.6 In practice, the communist regime adopted an instrumental view of law which left little room for open debate on key issues of constitutional law. In particular, Communists suppressed human rights studies7 and this area of constitutionalism was undertheorised until the Velvet Revolution. Law was ideological and State-centred and scholarship was obliged to conform to the official party line. Dissent was not accepted. The only exception was the period of the Prague Spring movement in the late 1960s,8 during which key constitutional issues could be debated freely. The Communist Party exercised tight control over legal education as well as law journals. Courses on Marxism-Leninism were introduced, and law curriculum infused with the communist newspeak. This affected constitutional law in particular, which was taught as ‘State Law’.9 Moreover, law school students were subjected to purges and, later on, to careful pre-screening. Some of the best constitutional law professors were fired and the rest either exercised self-censorship or became zealous Communists and followed the party line. Perhaps even more importantly, due to the closed borders Czech constitutional lawyers lost their link with Western scholarship as well as their language competence. In sum, constitutional scholarship as well as legal education were debilitated. This situation changed only after the Velvet Revolution. Brno and Prague law schools regained their autonomy. In addition, two more law schools were established in Olomouc and Pilsen. Those constitutional scholars who were fired or side-lined during the communist regime returned to the forefront of public life. Moreover, influential constitutional scholars returned from emigration. Many of them joined the newly established Constitutional Court, which further increased the political salience of constitutional scholarship. However, most communist-era constitutional scholars kept their jobs after the Velvet Revolution and hierarchical structures within the Czech

6 See Section V. 7 See Chapter 8. 8 See Section V. 9 Vojtěch Šimíček and Jan Kysela, ‘Ústavní právo’, in Michal Bobek, Pavel Molek and Vojtěch Šimíček (eds), Komunistické právo v Československu: Kapitoly z dějin bezpráví (Brno: Mezinárodní politologický ústav, 2009), 299–303.

16  The Rise of Czech Constitutionalism: History and Context law schools prevailed.10 These factors, coupled with limited knowledge of foreign languages and low salaries in legal academia, hindered the development of constitutional scholarship (and legal education more generally) in the 1990s.11 Therefore, in that period, debates among constitutional scholars were often parochial. Given the fact that most Constitutional Court judgments were not published, little attention was paid to the Court’s case law. The dominant foreign language in the 1990s was German and the key inspiration was the German Federal Constitutional Court. Since the turn of millennium, the role and method of constitutional scholarship have gradually changed. Many Czech constitutional scholars, after the accession of the Czech Republic to the EU, started to study at top law schools such as those in Oxford and Cambridge in the United Kingdom and others on the Continent. The Fulbright foundation funded the studies of quite a few constitutional law scholars in the United States. While some constitutional scholars still studied in Germany, English became the lingua franca of the new generation of constitutionalists. EU law itself affected the Czech constitutionalism profoundly and created a new cohort of EU constitutional law scholars. Empirical studies started to emerge, and hence constitutional scholarship became more diverse and pluralistic.12 At the same time, the Constitutional Court’s rise in political salience created a demand from journalists to comment on its key judgments. This brought constitutional scholarship to the spotlight and further increased the visibility of constitutional scholars. Constitutional scholars are thus requested in the public debates more than ever before. These developments have also led to growing tensions between the traditional scholars, who have often remained in their jobs since the communist era, and the progressive scholars who have studied abroad and want to change the way constitutional law is taught and how constitutional scholarship is done. The former prioritise (in line with the State Law paradigm mentioned above) the framework of government part of constitutionalism, resist EU law and other supranational influences, focus on domestic issues and the task of writing authoritative commentaries, do not publish in leading foreign journals, prefer 10 See Aviezer Tucker, ‘Reproducing Incompetence: The Constitution of Czech Higher Education’, East European Constitutional Review 9, no 3 (2000): 94. 11 See Michal Bobek, ‘Klepání na nebeskou bránu; o nereformovatelnosti studia práv v Čechách’, Právní rozhledy, no 10 (2005), 365–70; no 12 (2005), 446–51; no 14 (2005), 523–9; no 16 (2005), 601–6. 12 Jan Kysela, ‘Poznámky ke stavu oboru ústavního práva a státovědy’, Časopis pro právní vědu a praxi 25, no 3 (2017): 375–90.

Inter-war Czechoslovakia  17 lecture-like teaching, tend to be more hierarchical towards students and their younger colleagues, and often succumb to intellectual inbreeding. The latter consider fundamental rights at least equally important, are open to EU law and the case law of the European Court of Human Rights (ECtHR), engage in comparative constitutional studies, publish in top foreign publication outlets, embrace modern teaching methods such as the case-law method and online courses, prefer flat organisational structures within the law school, and seek to hire the best available scholars in open and transparent calls. In the 2000s the former camp still had the upper hand. As a result, some of the best constitutional law scholars did not return to Czechia after their PhD studies abroad and have instead remained at top West European universities and published almost exclusively in English. This brain drain has haunted Czech constitutional law scholarship ever since that period. The situation started to improve in the 2010s, when some older colleagues retired and progressive scholars rose to governing positions within their faculties. Interestingly, the progressive group has been indirectly supported by colleagues studying life and natural sciences, who push for excellence and aim for publication in top foreign journals with high impact factor. As an increasing amount of public money is channelled to universities according to this research excellence output criteria, this in turn creates pressure on law schools. IV.  INTER-WAR CZECHOSLOVAKIA

Czechoslovakia gained independence in 1918 in the wake of the fall of the Austrian Empire. The creation of the new state in 1918 was a critical juncture, which provided a unique opportunity for Czechoslovakia to modify its inherited Austrian and Hungarian constitutional and legal systems and replace them with a new one. As will be shown below, Czechoslovakia exploited this opportunity only in part. Initially, Czechoslovakia retained most features from the Austrian Empire and created only the new apex institutions, which naturally had their seat in Vienna during the Empire. Even though Czechs and Slovaks defined the basic features of the new state in the 1918 Provisional Constitution, the efforts to create their own constitutional system culminated two years later in the adoption of the first fully fledged Czechoslovak Constitution. The 1920 Constitution was a modern document that defined the Czechoslovak nation, created a parliamentary republic with a president as the head of state, introduced a complex

18  The Rise of Czech Constitutionalism: History and Context system of separation of powers with many checks and balances such as bicameralism and the Kelsenian Constitutional Court, and guaranteed suffrage as well as many fundamental rights to women. The 1920 Constitution served as the guiding document for Czechoslovakia until World War II. It was praised abroad, and to a great extent respected in practice. Due to its success, the first Czechoslovak President Tomáš Garrigue Masaryk and his Minister of Foreign Affairs Edvard Beneš even portrayed Czechoslovakia as the ‘Switzerland of the East’.13 However, inter-war Czechoslovak constitutionalism also suffered from several drawbacks. Although the 1920 Czechoslovak Constitution contained a nuanced system of separation of powers, this principle was side-lined in national political life. Most importantly, the first president of the country and a towering figure of the entire inter-war period, Tomáš Garrigue Masaryk, was deeply distrustful of political parties, parliamentary leaders and the Parliament itself. He created an informal political organisation known as Hrad (the ‘Castle’), a powerful coalition of intellectuals, journalists, businessmen, religious leaders and World War I veterans. Due to his charisma, the fractured political scene and the support of the ‘Castle’, Masaryk de facto set the country’s political agenda until his death in 1937. He also built a cult of personality around himself,14 albeit of a different sort from that of Horthy in Hungary and Piłsudski in Poland. As a counterweight to Masaryk’s ‘Castle’, the leaders of key political parties created their own informal group, the so-called Pětka (the ‘Five’), which made important decisions outside the parliament and further weakened the legislature as well as the overall system of separation of powers. Both Masaryk and the Pětka thus prioritised informal institutions and craved the accumulation of power in their hands. Some politicians even meddled with judicial independence. It is telling that Czechoslovak inter-war judges complained about interferences unheard of in the Austrian era.15 Other important safeguards of the separation of powers envisaged by the 1920 Czechoslovak Constitution, such as the Czechoslovak Constitutional Court, were dysfunctional.16 Czechs also failed to address the needs of the German and Slovak minorities within 13 Andrea Orzoff, Battle for the Castle: The Myth of Czechoslovakia in Europe, 1914–1948 (New York: Oxford University Press, 2009). 14 Orzoff, Battle for the Castle. 15 See Zdeněk Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (Leiden: Martinus Nijhoff, 2011), 11–12. 16 See Jana Osterkamp, Verfassungsgerichtsbarkeit in der Tschechoslowakei (1920–1939) (Frankfurt am Main: Klostermann, 2009).

The Communist Legacy  19 multinational Czechoslovakia and insisted on a single Czechoslovak ethnicity, which was never accepted by the majority of Slovaks. In sum, while Czechoslovakia, in contrast to its neighbours, did maintain a democratic system and the basics of separation of powers until World War II,17 it was far removed from representing an ideal as the lone democratic outpost in the East. Despite these flaws, Czechs have always viewed the First Czechoslovak Republic (1918–1938) as the golden era of Czech constitutionalism, and hence the 1920 Czechoslovak Constitution served as a template for the drafting of the 1993 Czech Constitution. While the golden era view might be considered an idealisation of an imperfect political community and constitutional system,18 it was still the only era which could reasonably provide a historical foundation for Czech modern democratic statehood.19 V.  THE COMMUNIST LEGACY

After the occupation of Czechoslovakia by Hitler’s Germany, which was much longer than in other European states as it lasted from 1938 until 1945, Czechoslovakia witnessed only a short democratic intermezzo. Czechs were disillusioned with the West, because they blamed it for the traumatic 1938 Munich Treaty. Even the pro-Western Czechoslovak President Edvard Beneš pushed eastwards20 and was willing to sign the so-called Beneš Decrees that led to deportation of roughly 2.4 million ethnic Germans from the Czechoslovak territory in 1945–1946. Importantly, this move also altered the electorate in the Czech part of Czechoslovakia and made it easier for the Communist Party to consolidate its power. The Communist Party won the largely free 1946 elections in Czechia and waited for its chance to move Czechoslovakia under the Soviet sphere of influence. It came two years later. In February 1948, the communists

17 For further details see Abby Innes, Czechoslovakia: The Short Goodbye (New Haven, CT: Yale University Press, 2001). 18 See Mary Heimann, Czechoslovakia: The State that Failed (New Haven, CT: Yale University Press, 2009); and Orzoff, Battle for the Castle. 19 For further details see Stein, Czecho/Slovakia; Innes, Czechoslovakia; and David Kosař, Jiří Baroš and Pavel Dufek, ‘The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism’, European Constitutional Law Review 15, no 3 (2019): 442–3. 20 Milan Hauner, ‘“We Must Push Eastwards!” The Challenges and Dilemmas of President Beneš after Munich’, Journal of Contemporary History 44, no 4 (2009): 619–56.

20  The Rise of Czech Constitutionalism: History and Context staged a successful coup d’état and remained in power until the 1989 Velvet Revolution. These four decades of communist rule left a deep imprint on Czech constitutionalism as well as on the mindset of the Czech people. The central feature of the Czechoslovak communist regime was centralisation of power based on the Marxist socialist concept of the ‘unity of power in the assembly’, coupled with socialist economic planning and thorough regulation.21 Lenin’s principle of ‘democratic centralisation’ meant that discussion within the Party about the policies of the state was permitted, but once the discussion was concluded state and Party institutions had to adhere rigidly to the decisions made.22 As a result, all three branches, including the judiciary, were under the tight control of the Czechoslovak Communist Party, which uniquely represented ‘the people’ in its ideal form.23 While the Czech communists soon realised that they needed all three branches, the separation of institutions, even if formally anchored in the 1948 and 1960 Constitutions, was an illusion. Pretty much all institutions were connected with and subordinate to the Communist Party leadership. The Czechoslovak communist regime also quickly got rid of any remnants of a system of checks and balances. Most importantly, it abolished the Constitutional Court, the Supreme Administrative Court, the Election Court and high courts, dismissed and prosecuted recalcitrant judges, packed the judiciary with lay judges, installed trusted comrades in the Supreme Court and as presidents of ordinary courts, and subordinated courts to the General Prosecutor.24 At the same time, the communists created several brand new institutions. Most importantly, they introduced a Soviet-style prokuratura headed by the General Prosecutor, the guardian of the socialist legality, who embodied the merger of legislative, executive and judicial functions. He exercised all three of them, as he was heavily involved in the 21 On the role of constitutional law in the communist Czechoslovakia, see Šimíček and Kysela, ‘Ústavní právo’. 22 See Archie Brown, Rise and Fall of Communism (New York: HarperCollins Publishers, 2009), 107–11. 23 John N Hazard (ed), Soviet Legal Philosophy (Cambridge, MA: Harvard University Press 1951), 35–68. We are aware that we cannot do justice to the nuances of democratic centralisation and socialist legality and that not all the theory behind these concepts was invalid, but we do not have the space to engage with the communist theorists here. 24 See Kühn, The Judiciary in Central and Eastern Europe; and Stanislaw Frankowski, ‘The Independence of the Judiciary in Poland: Reflections on Andrzej Rzeplinski’s Sadownictwo v Polsce Ludowej (The Judiciary in People’s Poland)’, Arizona Journal of International and Comparative Law 8, no 1 (1991), 40.

The Communist Legacy  21 legislative process, represented public prosecution in criminal trials and took various administrative decisions, attended the deliberations of judges, reviewed judicial decisions and could challenge any such decision he deemed inappropriate by way of extraordinary appeal.25 Apex courts in communist regimes not only decided ‘cases and controversies’, but also issued ‘interpretative guidelines’ with no relation to any real-life pending case. While the official purpose of these guidelines was to unify the divergent case law of the lower courts,26 their real aim was to prevent deviations from the Party line. The communist regime also stripped ordinary courts of jurisdiction over commercial law cases and created a specialised system of state arbitrage courts, which exercised policy, planning and adjudicatory functions at the same time.27 In order to prosecute the political opponents effectively, the Communists also established the State Court, a special criminal court, where the show trials with traitors took place.28 Ruling communist parties in Central Europe also soon realised that the original Marxist prophecy of the state and law ‘withering away’ was not about to materialise soon. On the contrary, law became critical in preserving communist power.29 This instrumental view of law, which pushed communist societies away from the ideal of the rule of law towards ‘rule by law’ or ‘rule through law’,30 has remained deeply embedded in the minds of some Czech political leaders.31 While the most visible communist institutions, such as the leading Communist Party, the omnipotent prokuratura and the state security services, were dismantled or reformed after 1989, the communist legacy and subservient mindset

25 See Hazard, Soviet Legal Philosophy, 110–12 (discussing the original Soviet model of prokuratura); and Kühn, The Judiciary in Central and Eastern Europe, 43–45 (discussing the Central European modifications of the Soviet model). 26 See eg Zdeněk Kühn, ‘The Authoritarian Legal Culture at Work: The Passivity of Parties and the Interpretational Statements of Supreme Courts’, Croatian Yearbook of European Law and Policy 2 (2006): 19–26. 27 See eg René David and John EC Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (London: Stevens and Sons, 1985), 251–61. 28 For further details see Kühn, The Judiciary in Central and Eastern Europe, 26–7, 98–9 and 102–3. 29 Andrei Y Vyshinsky, The Law of the Soviet State (New York: Macmillan Company, 1948), 303ff. 30 Stephen Holmes, ‘Lineages of the Rule of Law’, in José M Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (New York: Cambridge University Press, 2003), 22–3. 31 For a thorough analysis of the ‘rule through law’ in a post-communist setting see Jeffrey Kahn, ‘The Search for the Rule of Law in Russia’, Georgetown Journal of International Law 37, no 2 (2006): 353–409.

22  The Rise of Czech Constitutionalism: History and Context have not gone away that easily.32 Four decades of communist indoctrination simply could not be undone overnight. In this context it is important to add that the Czechoslovak communist regime was far more conservative and pro-USSR than the Hungarian ‘goulash communism’, Tito’s Yugoslavian regime, or even the postmartial law Poland. There was also no widespread dissident community, such as the Solidarity movement in Poland, and thus the Czechoslovak communist regime remained unchallenged until the late 1980s. The only moment when the Communist Party leadership liberalised society and became more assertive towards the Soviet leaders was the Prague Spring movement of 1968. In January 1968, a reformist Alexander Dubček was elected First Secretary of the Communist Party of Czechoslovakia. He soon started to adopt democratisation and decentralisation reforms, including increasing freedom of speech and lifting restrictions on media and travel, and liberalised economy. By summer he had become wildly popular, but he had misread the geopolitical situation. The USSR as well as the Czechoslovak hard-core communists felt threatened and were becoming afraid of the domino effect into other Soviet satellite states. This resulted in the invasion of the troops of the Warsaw Pact into Czechoslovakia in August 1968, which put an abrupt end to the Prague Spring and its project of ‘socialism with a human face’. All reforms were stalled, the Communist Party expelled leaders of the ‘reformist’ wing, and the ‘hard-core’ communists started to work on restoring the previous order. Widespread purges in all segments of the Czech political, economic and social life as well in public service followed. Czechoslovakia entered the so-called ‘normalisation’ period. Any attempt to dissent from the official policy was crushed and accompanied by economic sanctions such as dismissal from work or denying the dissenter’s children access to university education. The dissident movement was small and easily contained by the State Security Police, but it still managed to produce important policy documents such as Charter 77 to which we will return in Chapter 8. The communist era, and the normalisation period in particular, had affected not only the institutions, but also the mindset of politicians and judges. Despite comprehensive judicial reforms in post-communist countries, empowering individual judges in the highly hierarchical structure of a civil law judiciary is unlikely to lead to a shift in judicial behaviour, 32 See Michal Bobek, ‘The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries’, European Public Law 14, no 1 (2008): 99–123.

Democratic Transition and Dealing with the Past  23 at least in the short run.33 In particular, deference of rank-and-file judges to court presidents who are often in turn willing to defer to ruling-party leaders has been a recurrent problem.34 At the same time, politicians are able and willing to interfere with judicial independence, as this was a standard feature of the communist political culture, which used techniques ranging from telephone justice to more subtle mechanisms such as informal talks between politicians and court presidents. By ‘telephone justice’, we mean a particular system of influencing the judges in pre-1989 Czechoslovakia (even though we do not claim that it was endemic to Czechoslovakia). If a certain Communist party official or a secret police member wanted to influence an outcome of the (often criminal) proceedings, they simply picked up a phone, called a ‘lawful judge’ and expressed their opinion on the case. The judge would then ‘know what to do’ and what were the possible consequences of a refusal to follow the instructions. While crude techniques such as telephone justice have not been used recently, the subtle ones still persist. We return to these issues in Chapter 7. Four decades of communist rule has also had a long-lasting impact on legal education and legal scholarship, which we discussed in Section III. VI.  DEMOCRATIC TRANSITION AND DEALING WITH THE PAST

Even though it is, strictly speaking, not a revolutionary constitution, as a series of amendments of the Czechoslovak socialist federal constitution was adopted as an immediate reaction to the 1989 Velvet Revolution, the 1993 Czech Constitution has several revolutionary features. The process of its drafting and its resulting content were inevitably shaped by the 1989 Velvet Revolution. At the time of the drafting of the 1993 Constitution the communist regime and its injustices were still fresh in the memories of all key politicians and especially among dissidents, as the Velvet Revolution had taken place less than three years before. The deeply rooted desire that power should be exercised in a different way from in the past reflected the fears originating in, and related to, the previous political regime, in which power was monopolised by communists. 33 Bobek, ‘The Fortress of Judicial Independence’. 34 David Kosař, ‘Politics of Judicial Independence and Judicial Accountability in Czechia: Bargaining in the Shadow of the Law between Court Presidents and the Ministry of Justice’, European Constitutional Law Review 13, no 1 (2017): 96–123. See also Maria Popova, ‘Can a leopard change its spots? Strategic behaviour versus professional role conception during Ukraine’s 2014 court chair elections’, Law & Policy 42, no 4 (2020): 365–81.

24  The Rise of Czech Constitutionalism: History and Context This reflection on the communist past became so imprinted on the Czech Constitution’s DNA that it shaped not only the constitutional text itself, but its further development and constitutional practice. The post-Velvet Czech constitutional system thus should be understood as a reaction to the totalitarian past of the Czech nation. This was, of course, most clearly visible in the initial phases of Czech constitutional development in the 1990s, but it has remained a strong factor influencing the functioning of the constitutional system until today. Most of the legislative work in this regard had been done during the federal intermezzo between 1989 and 1992. In this period, the Federal Assembly adopted numerous laws aimed at dealing with past injustices. These included laws concerning restitution, lustration and rehabilitation. In addition, it adopted extensive new fundamental rights legislation, including laws concerning the right to peaceful assembly, the right to associate in political parties, the right to petition, and significant reforms of criminal and civil law. Much of the legislative work concerning key transitional justice mechanisms was thus done during the federal democratic period, especially in 1991 and 1992, when the revised federal 1960 Constitution was still in force. However, implementation of these laws, and thus also the responsibility for dealing with the past and building the Rechtsstaat, became a major task of the new unitary Czech state and the Czech Constitutional Court in particular.35 Consequently, the first decade of the Czech Constitutional Court’s operation is generally viewed as an era in which the Court fought firmly to establish the basic constitutional values in the Czech legal order and to remedy past injustices. During the 1990s, the Constitutional Court adopted and developed several constitutional doctrines and introduced them into Czech legal practice. The principle of proportionality, indirect horizontal application of fundamental rights (Drittwirkung), the priority of human-rights-friendly interpretation (in dubio pro libertate), interpretation in favour of transitional justice (in favorem restitutionis), and prohibition of ‘excessive formalism’ in statutory interpretation are among the most important principles that the Constitutional Court fought to establish.

35 See Francesco Biagi, European Constitutional Courts and Transitions to Democracy (Cambridge: Cambridge University Press, 2020); and Katarína Šipulová and Hubert Smekal, ‘Between Human Rights and Transitional Justice: Constitutional Courts’ Dilemma in Post-Communist Central Europe’, Europe-Asia Studies (2020).

The Dissolution of Czechoslovakia  25 While the Constitutional Court assumed its intended role as the guardian of the Constitution with vigour and emerged as the key player in substantive transition to democracy,36 the involvement of other institutions was rather mixed. The executive and legislative branches as well as the ordinary courts obviously did their part in dealing with the past, but they were far less enthusiastic than the Constitutional Court in this endeavour. VII.  THE DISSOLUTION OF CZECHOSLOVAKIA

The division of Czechoslovakia surprised many and resulted in a hasty drafting process within a rather narrow circle of experts who included dissidents and domestic legal scholars as well as constitutional scholars who had returned from German or American emigration. Some constitutional scholars and politicians, such as the then Czechoslovak Vice-Prime Minister and the current President of the Constitutional Court Pavel Rychetský, were even drafting a new federal constitution in the early 1990s. But Václav Klaus and Vladimír Mečiar, the Czech and Slovak Prime Ministers respectively, put an end to these efforts at their meeting in Villa Tugendhat in Brno in August 1992, when they signed an agreement on the dissolution of Czechoslovakia. Unlike in Poland (1997) and Hungary (2011), the Czech constitutional drafters thus had little time to scrutinise the most important institutional choices, some of which were made ‘off the cuff’ and without much consideration. While the major political parties of that time had their say in the final shape of the 1993 Czech Constitution, they often had to defer to the expert drafting group. There was simply not time to come up with alternative solutions, as virtually all the work had to be done within less than six months between July and December 1992. The dissolution of Czechoslovakia was technically sealed by the constitutional law on dissolution. On the international level, both new states had to re-join the Council of Europe, the United Nations and other international organisations, and resolve a complex web of issues regarding succession to international treaties. The people had no direct say in this important constitutional moment as no referendum was held.37 The split had grave consequences for Czechs and Slovaks. 36 See Biagi, European Constitutional Courts. 37 For a criticism of avoiding the people see Jiří Malenovský, ‘Vznik a zánik Československa na pozadí zásady sebeurčení národů’, Právník 157, no 10 (2018): 788–98.

26  The Rise of Czech Constitutionalism: History and Context On the institutional level it led to the closure of federal institutions. The only federal institution that continued in Czechia was the Federal Czechoslovak Supreme Court which became the Czech Supreme Court, while all other federal institutions were abolished. Instead, brand new institutions were created, the property was divided, and the borders were negotiated. On the personal level, Czechs and Slovaks had to choose which citizenship they wanted to keep. Different developments in Czechia and Slovakia after the split have had wide and often unforeseen collateral implications, for instance regarding retirement benefits that have been decided according to the seat of the employee’s company at the moment of dissolution. Better economic results in Czechia thus led to higher pensions for Czech citizens who worked for Czech-based companies during Czechoslovakia. In contrast, those working for Slovak-based companies were worse off, which was perceived as unjust by many. The Slovak Pension Saga eventually led to a war of the courts in Czechia as well as to a skirmish between the Czech Constitutional Court and the European Court of Justice.38 For most Czech politicians and judges, unlike for EU law scholars, this saga was not primarily about pensions nor about the relationship with the European Court of Justice. These are secondary issues. This saga was important to them because of the conceptualisation of the division of Czechoslovakia and defining the contours of Czech constitutional identity. VIII.  RETURN TO EUROPE

Following decades of isolation from the Western world in terms of values, economy and even very basic inter-personal relationships, there was a strong sense of a ‘return to Europe’ – to the cultural space where Czech society thought it belonged and from which it had been violently torn. Czech post-Velvet political leaders quickly embraced the new language of democracy, human rights, the rule of law and the market economy, which they had to use if they wanted to ‘return to the West’ from where the region had been, in Milan Kundera’s metaphor, ‘kidnapped’ to the East.39 Kundera originally spoke of Central Europe being kidnapped

38 See below Chapter 2, Section IV and Chapter 7, Section IX. 39 Milan Kundera, ‘Un occident kidnappé, ou la tragédie de l’Europe centrale’, le Débat 5, no 27 (1983): 3–23.

Return to Europe  27 from the West, but ‘the West’, for most people in 1989 in Central Europe, meant ‘Europe’ or ‘the European Union’.40 The main Czech political goals of the 1990s were to finish the political transformation (i.e., to establish liberal democracy), economic transformation (to entrench free market economy) and to join the ‘western structures’ such as the EU, the Council of Europe and NATO.41 Soon after the Velvet Revolution Czechoslovakia became a member of the Council of Europe. Newly independent Czechia then yearned to join NATO and the EU. To make the latter happen, it even happily embraced the 1993 Copenhagen Criteria and initiated the cumbersome accession process.42 Czech post-Velvet political elites simply wanted to reduce domestic political uncertainty and lock in credible policies on international and supranational levels to shield them from domestic challenge.43 Few factors, if any, have had a greater impact on the Czech constitutional landscape than Czechia’s accession to the EU, as this was arguably a once-in-a-lifetime constitutional moment. Even though accession to NATO was considered a key political goal of the 1990s, the EU was considered a more important step in practice. As some contemporary commentators put it, NATO was the silver, the EU was the gold.44 The EU’s constitutional importance can be traced in at least four relatively separate dimensions. First, the political goal of ‘return to Europe’ was an important factor that influenced the drafting process of the Czech constitutional documents. While the adoption of liberal democratic values by the Czech constitution is not exclusively attributable to the Council of Europe and the prospect of accession to the EU, it certainly played a role. Secondly, at a more specific level the Czech Government and Parliament had to negotiate, prepare and adopt extensive changes to legislation as well as some structural constitutional changes (the so-called

40 Jan Komárek, ‘Waiting for the existential revolution in Europe’, International Journal of Constitutional Law 12, no 1 (2014): 190–212, 194. 41 For the popular reflection of this phenomenon see Pavel Maršálek, ‘Evropská integrace, unijní občanství a česká národní identita’, Acta Universitatis Carolinae 60, no 2 (2014): 73–81. 42 For further details see Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law (Alphen aan den Rijn: Kluwer Law International, 2008). 43 Andrew Moravsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’, International Organization 52, no 2 (2003): 217–52. 44 Václav Bartuška, ‘Jsme členem NATO, alliance má nyní 19 členů’, iDNES.cz, 14 March 1999, https://www.idnes.cz/zpravy/domaci/jsme-clenem-nato-aliance-ma-nyni-19-clenu.A_ 990311_200409_domaci_jkl.

28  The Rise of Czech Constitutionalism: History and Context Euro Amendment of the Constitution) that were supposed to prepare Czechia for accession and the subsequent operation of EU law within the domestic legal order. The most important constitutional changes in this regard concerned revising Article 10 of the Constitution (concerning the status of international treaties in the Czech constitutional order) and adding a new Article 10a (which allows the transfer of power to an international organisation such as the EU). These changes made Czechia a fully monist state and created constitutional conditions for the direct effect of EU law in cases where EU law calls for it. Thirdly, the Constitution had to account for the act of accession itself. A special constitutional law was adopted which provided that a referendum must take place. The actual referendum, which is the only nation-wide referendum so far in Czech history, took place on 13 and 14 June 2003. A decisive majority (77 per cent of the voters) eventually supported accession to the EU. Finally, the fourth dimension concerns the specific position of EU law within the Czech constitutional order. It is this fourth dimension that has generated the most controversy and has been hotly debated. It was again the Constitutional Court that played the most active role in determining the relationship between domestic law and EU law, but it was not alone, as some younger judges of the Supreme Administrative Court and, later on, lower court judges have been even more proactive. We will delve into this debate in Chapter 2. Despite the importance of the 2004 constitutional moment and the tremendous impact of EU law on the lives of Czech citizens, the early excitement about EU accession has diminished significantly. As early as in 1990, Václav Havel cautioned that ‘catching up with Europe’ is not a natural development and that Central Europe can bring something new to Europe: [Central Europe] could approach a rich Western Europe not as a poor dissident or a helpless, amnestied prisoner, but as someone who also brings something with him: namely spiritual and moral incentives, bold peace initiatives, untapped creative potential, the ethos of freshly gained freedom, and the inspiration for brave and swift solutions.45

Havel’s existential revolution has not materialised. In the name of the ‘return to Europe’, any attempt to seriously engage with the problems 45 Speech to the Polish Sejm and Senate, published as Václav Havel, ‘The Future of Central Europe’, The New York Review, 29 March 1990, https://www.nybooks.com/ articles/1990/03/29/the-future-of-central-europe/.

Where are the People?  29 and conflicts that accession to the EU by post-communist countries would inevitably bring was suppressed. Such conflicts started to emerge in Czechia, and even more in other Central European countries, after their accession to the EU. These conflicts often get translated into identity politics, which often turn against the EU. The fact that the ‘return to Europe’ attitude no longer has the same appeal among Czechs is a clear sign of this trend. In fact, support for the EU has declined among the Czech people significantly since the 2003 referendum and Czechia has become one of the most Eurosceptical among the EU member states. According to the 2018 Eurobarometer poll, only 32 per cent of Czech people trust the EU.46 We will return to this trend in Chapter 2 and in the concluding chapter of this book. IX.  WHERE ARE THE PEOPLE?

As emphasised above, the Czech people had no say in the drafting of the 1993 Constitution47 and even their representatives had to defer to the expert group. Even more importantly, there is no meaningful civic education that would allow the young citizens to engage with core constitutional values, unlike in the United States or Germany. This situation creates the danger of detachment of the ordinary people from the constitution, limits the chances of development of constitutional patriotism over time, and may invite a populist backlash that can easily portray the existing constitutional system as elitist. Unfortunately, these problems have so far not been addressed and a more in-depth engagement of the people in the Czech constitutional practice is still lacking. In other words, while the people are involved in the Czech constitutionalpolitical processes at many levels (including the rather new direct election of the President), the state of Czech participatory democracy is far from ideal. While the Constitution is based on the principle of popular sovereignty, the ‘operational sovereignty’ of the people is kept to a minimum and the Czech people are thus a perfect example of the ‘dormant sovereign’. Czechia is actually one of the few EU countries that has no general 46 European Commission, ‘Standard Eurobarometer 90: Autumn 2018: Public opinion in the European Union’, November 2018, https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/84930. 47 For a sharp criticism of this failure to involve the people, see Jiří Malenovský, ‘O legitimitě a výkladu české Ústavy na konci století existence moderního českého státu’, Právník 152 no 8 (2013): 745–72.

30  The Rise of Czech Constitutionalism: History and Context regulation of country-wide referenda. The only existing example is the ad hoc constitutional law concerning a referendum on the Czech Republic’s accession to the EU discussed in the previous Section.48 Other forms of direct democracy such as popular initiatives or French-style town hall meetings do not exist on the national level either. Referenda are allowed only at the local level, but the quorum for such referenda to become binding is so high that it can be reached only in villages and small towns.49 Some scholars have acknowledged this gap between the constitution and the people and advocated the introduction of further participatory elements to Czech constitutionalism50 or even the adoption of a new constitution,51 but the political elite has not so far responded to these calls. Furthermore, the prioritisation of legal constitutionalism over political and civic constitutionalism and the consequent limitation of participatory elements in democratic government are seen by some authors as a cause of political and constitutional crises in Czechia as well as in other Central and Eastern Europe (CEE) countries.52 While this is a rather abstract and debatable statement, there are certainly indicators of the detachment of the people from constitutional institutions and basic values. Relatively low voter turnouts, which is the case especially with regard to institutions with limited level of diffuse support, such as the Senate, a lack of trust in key institutions (including the Parliament), and the rise of populist political parties hint that the level of the people’s identification with the constitutional and political system is quite low and that constitutional patriotism in the Czech case is more a theoretical idea than lived reality. X. CONCLUSION

Czechia is still a relatively young democracy. The Velvet Revolution took place only in 1989 and the dissolution of Czechoslovakia only 48 Constitutional Law No 515/2002 Coll, on the Referendum on the Accession to the European Union. 49 For further details see Chapter 7, Section VI. 50 See Jan Wintr and Daniel Askari, ‘Lidská práva a rozhodování v referendu’, Právník 155, no 2 (2016): 121–39; and David Kosař and Ladislav Vyhnánek, ‘Ústavní identita České republiky’, Právník 157 no 10 (2018): 854–72. 51 Malenovský, ‘O legitimitě a výkladu české Ústavy’. 52 See Paul Blokker, New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (Abingdon: Routledge, 2013); and Kosař et al, ‘The Twin Challenges to Separation of Powers in Central Europe’.

Further Reading  31 in  1993. Czechs managed the split well and peacefully and since the mid-1990s Czechia has flourished. It joined NATO in 1998 and the EU in 2004. Czechia also did quite well economically. With the exception of the mid-1990s, which saw a short period of economic stagnation, the economic situation of Czechia has improved significantly since 1993. In particular, the period between 1996 and 2007, i.e. before the global financial crisis, saw the country’s economy growing rapidly.53 At the same time, Czechia has remained an economically egalitarian country. Crucial institutions, including the Constitutional Court, incrementally gained power and visibility and became more deeply embedded in the Czech system of governance. Czechia thus witnessed the gradual institutionalisation of the key constitutional values. Importantly, backsliding to communism, which many politicians feared in the 1990s, proved to be a threat on paper only. It seemed almost like the end of history in Fukuyama’s sense.54 Yet, the Czech Constitution has still failed to find sufficient traction with the people, which makes it vulnerable to populist threats. True, Czechia has so far managed to contain populist and authoritarian tendencies better than Hungary and Poland. However, this resistance should not be taken for granted, as Czechia is not ‘Switzerland of the East’.55 FURTHER READING Biagi, Francesco. European Constitutional Courts and Transitions to Democracy. Cambridge: Cambridge University Press, 2020. Blokker, Paul. New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia. Abingdon: Routledge, 2013. Broz, Jan, and Jan Chmel, eds. Pohled za oponu: studie o vzniku Ústavy České republiky a o kontextu její interpretace. Prague: Leges, 2017. Innes, Abby. Czechoslovakia: The Short Goodbye. New Haven, CT: Yale University Press, 2001. Komárek, Jan. ‘Waiting for the existential revolution in Europe’. International Journal of Constitutional Law 12, no 1 (2014): 190–212.

53 Ryszard Rapacki and Mariusz Próchnia, ‘The EU Enlargement and Economic Growth in the CEE New Member Countries’, European Commission Economic Papers, no 367 (2009), https://ec.europa.eu/economy_finance/publications/pages/publication14295_en.pdf. 54 Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992). 55 See Orzoff, Battle for the Castle.

32  The Rise of Czech Constitutionalism: History and Context Kosař, David, Jiří Baroš, and Pavel Dufek. ‘The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism’. European Constitutional Law Review 15, no 3 (2019): 427–61. Kuklík, Jan. Czech Law in Historical Contexts. Prague: Karolinum, 2015. Kundera, Milan. ‘Un occident kidnappé, ou la tragédie de l’Europe centrale’. le Débat 5, no 27 (1983): 3–23. Šipulová, Katarína and Hubert Smekal. ‘Between Human Rights and Transitional Justice: Constitutional Courts’ Dilemma in Post-Communist Central Europe’. Europe-Asia Studies (2020). Stein, Eric. Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Breakup. Ann Arbor, MI: Michigan University Press, 1997. Svoboda, Veronika. ‘Vznik Ústavy České republiky’. Doctoral dissertation, Charles University, Prague, 2018. Syllová, Jindřiška, and Miroslav Sylla. Ústava České republiky 1992: Dokumenty a ohlasy. Prague: Wolters Kluwer, 2018.

2 The Challenge of a Pluralist Constitution Constitutional Drafting – Pluralist Constitution – Czech Constitutional Order – Charter of Fundamental Rights and Freedoms – Eternity Clause – Material Core of the Constitution – Super-statutes – International Treaties – European Convention on Human Rights – Constitutional Conventions – Precedent – Settled Jurisprudence – EU Law

T

he 1993 Constitution, as explained in the previous chapter, resulted from a hasty drafting process that took place during only a few months due to the inevitable dissolution of Czechoslovakia, which surprised many. The Czech constitutional drafters thus had little time to balance the pros and cons of different institutional choices and often relied on ‘tried and tested’ solutions from the First Czechoslovak Republic and its neighbouring countries. The major political parties of that time had their say in the final shape of the 1993 Czech Constitution, but two politicians and their divergent visions played a key role. Václav Havel, then Czechoslovak President, and Václav Klaus, then Czech Prime Minister, were towering figures of that era and their imprint, as well as tensions between them, are clearly visible in the final product. The deep disagreement between Havel and Klaus on some major issues also explains why Czechia ended up with a pluralist and rigid constitution, in which fundamental rights are not integrated in the Constitution itself, but are found in a separate document inherited from the democratic Czechoslovak regime. A complex web of sources of Czech constitutional law further evolved as a result of accession to the EU and the expansive interpretation of the Czech Constitutional Court, which brought the Eternity Clause to life, found constitutional conventions justiciable, and arguably even expanded the category of super-statutes. These specific features are crucial for understanding the key substantive

34  The Challenge of a Pluralist Constitution concepts of Czech constitutionalism and the dynamics of the Czech constitutional system to which we will turn in the subsequent chapters. I.  DRAFTING THE 1993 CONSTITUTION

The process of drafting the Czech Constitution was affected by foreign sources, the practical exigencies and the politics of the day. In particular, the tensions between Czechoslovak President Václav Havel and the Czech Prime Minister, Václav Klaus, framed the drafting as well as the implementation of the Czech Constitution for more than a decade. As regards the sources of inspiration, the Czech constitutional system possesses a few distinctive features. It is still rather a mixture of several historical and foreign sources of inspiration. While a pinnacle position amongst these sources belongs to the 1920 Czechoslovak Constitution, foreign and international sources were also very significant. In particular, the European Convention on Human Rights (ECHR) and the German constitutional system with a strong Constitutional Court deserve a special mention, as they heavily influenced the final shape of the Czech constitutional system. In fact, German influence can be traced in many areas. Entrenchment of the Eternity Clause in Article 9(2) of the Constitution, many features of the original position of the President, and the extensive competences of the Constitutional Court are amongst the most important examples. Czech post-communist political leaders also aimed to create a short and standard constitution, and in this regard they were heavily influenced by the US Constitution. The position of the Senate and its features, in particular the model of the partial replacement of a third of Senators every two years, are clearly inspired by the US and French constitutions. A specific inspiration from the US model can also be traced in the procedure for the appointment of Justices of the Czech Constitutional Court, which copies the US federal judges’ appointment procedure. While the influence of foreign sources is indisputable, foreign international experts had very little impact on the drafting process and the final product. The foreign inspiration was thus provided mainly by domestic experts with ties to or extensive knowledge of other constitutional systems, by direct use of translated constitutional documents, and by trips to other countries and consultations. The drafting process itself has not until recently been comprehensively documented, and some of its aspects have acquired an almost mythological dimension. As we have already mentioned, the drafting

Drafting the 1993 Constitution  35 process was marked by its haste and relative secrecy. Unlike in some other CEE countries, which were drafting their constitutions at roughly the same time, there was no constitutional assembly (such as in Romania1) or referendum (such as in Estonia or Lithuania2). Instead, a major part of the drafting of the Czech Constitution was done in executive-style commissions. The governmental commission that was entrusted with drafting the constitutional proposal was established by a decision of the Government in July 1992.3 The creation of this commission was initiated by the Prime Minister, Václav Klaus, and is considered one of his most important contributions to the drafting process. The members of the commission represented the relevant political parties, the expert community and the government itself. Besides the formally appointed members, other experts and members of the Czech National Council (the then Czech chamber of the federal Czechoslovak parliament) attended the commission’s meetings, despite opposition from Klaus.4 At the same time, there was a parliamentary commission whose task was to reflect the development of the governmental commission’s work and provide it with recommendations and general feedback. The Constitution itself, after all, had to be adopted eventually by the Parliament. The constitutional committee of the Czech National Council intervened in the process as well. Finally, President Václav Havel was indirectly involved in the drafting process. His influence was mainly channelled through his personal relationships with many members of the various commissions. In addition, he authored several texts that he sent to the commissions, in which he made clear his opinions on several constitutional issues. Some people from the close circle of Havel’s advisers, such as the future Constitutional Court Justice, Vladimír Klokočka, also exerted their influence through these channels. The drafters of the Constitution unanimously agree that public opinion and the media had little to no impact on their work. Even the broader community of legal scholars and political scientists had virtually no say in the drafting process, although some state institutions and 1 See Anneli Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (New York: Cambridge University Press, 2005), 21. 2 Albi, EU Enlargement. 3 Jindřiška Syllová and Miroslav Sylla, Ústava České republiky 1992: Dokumenty a ohlasy (Prague: Wolters Kluwer, 2018). 4 Veronika Svoboda, ‘Vznik Ústavy České republiky’ (Doctoral dissertation, Charles University, Prague, 2018), 58.

36  The Challenge of a Pluralist Constitution non-governmental organisations sent their suggestions to the Czech National Council. Given the shortage of time, constitutional drafters had to minimise potential problems and make sure that the Constitution would be adopted smoothly. As a result, they omitted many controversial issues from the final text or intentionally addressed them only vaguely. The sources of inspiration discussed above provided an additional set of limits for them. It was thus reasonably clear that the new constitutional system had to be a standard democratic one. More specifically, the model of a parliamentary republic was an obvious choice. But beyond that, there were serious discussions about many of the Constitution’s features that we now consider axiomatic. Issues such as the existence of an upper legislative chamber (bi-cameralism), the electoral system (majoritarian or proportionate) to be used, the position of a Constitutional Court, and the protection of fundamental rights (whether to have an ‘incorporated’ bill of rights or a separate Charter) generated hot debates between the participants in the drafting process. One of the important sources of the disagreements was the growing tension between President Havel and Prime Minister Klaus and their conflicting visions of society, politics and law. Havel was a political dissident and playwright who spent several years in prison during the communist regime. He was a staunch defender of human rights and his philosophy embraced anti-consumerism, humanitarianism and environmentalism. He believed in legal institutions, civic activism and direct democracy. He also saw a strong integration of Czechia into supranational organisations as a key value. He heavily supported accession to NATO and the EU as well as, more controversially, humanitarian interventions in authoritarian regimes. In the drafting process he worked hard to erect strong checks on governmental majority in the lower chamber of parliament, and thus he pushed for a strong president, a German-style Constitutional Court, bicameralism and a comprehensive bill of rights. He failed to persuade Klaus to give the President the competence to propose legislation, but to a large extent he prevailed on the other three counts. Klaus is an economist who believes in the free market. He did not have much belief in legal institutions and consequently he underestimated their importance. At the same time, he viewed democracy in narrow Schumpeterian terms, and thus he was hostile to certain constitutional institutions and principles, such as the separation of powers, the protection of fundamental rights and constitutional review, as they, in his opinion, unnecessarily complicated democratic procedures. He has

Drafting the 1993 Constitution  37 not been fond of civil society and he has gradually become Eurosceptic and a global warming denier. On a more pragmatic level, his goal was to weaken the position of the President. While Klaus succeeded in reducing the power of the President, even his influence was not great enough to prevent the inclusion of the aforementioned key principles of modern constitutionalism. After roughly five months, in November 1992, the governmental proposal was finalised. On 16 December 1992 the proposal was to be discussed in the Czech National Council. Following a crucial political agreement, in accordance with which the representatives of the coalition parties promised not to propose or support any amendment,5 the Constitution was adopted by a convincing majority: 172 out of 198 MPs present voted in its favour. Thus, despite all the tensions and conflicting opinions, a compromise was reached. The drafters as well as MPs preferred the model of multiple constitutional documents, omitting the Charter from the Constitution. The Constitution itself consists of eight parts: (1) Basic Provisions, (2) Legislative Power, (3) Executive Power, (4) Judicial Power, (5) The Supreme Auditing Office, (6) The Czech National Bank, (7) Territorial Self-Government, and (8) Final and Inter-Temporal Provisions. In addition, the Constitution contains a Preamble which refers to its value inspirations and provides helpful assistance in interpreting it. The first part, despite Klaus’s aforementioned scepticism, emphasised liberal democratic values, such as democracy, the separation of powers, the rule of law and fundamental rights protection. The principle of the separation of powers was adopted in its classical tripartite form, but the Constitution also created two specific independent institutions, namely the Supreme Auditing Office and the Czech National Bank. In addition, it defined Czechia as a sovereign and unitary state. Interestingly, the basic provisions also include environmental protection, one of the traceable legacies of Havel. Some of those basic principles were further entrenched by the Eternity Clause.6 After heated debate, the concept of a two-chamber Parliament has won. However, the upper chamber, the Senate, is significantly the weaker. The weakness lies in the fact that it can be outvoted in cases of ordinary laws, even though an absolute majority in the Chamber of Deputies is necessary for that to happen. The Senate’s consent is necessary only 5 Svoboda, ‘Vznik Ústavy České republiky’, 123–4. A few minor amendments were proposed and accepted, but most amendments were rejected. 6 Article 9(2) of the Czech Constitution.

38  The Challenge of a Pluralist Constitution in the case of constitutional laws, organic laws in accordance with Article 40 of the Constitution, and international treaties. On the other hand, the Senate’s practical significance is heightened by its asymmetrical composition. While elections to the Chamber of Deputies take place every four years (even though snap elections have been quite common in the short Czech constitutional history) on the basis of a proportional electoral system, Senators are elected in staggered elections (one third of the Senate every two years) for a six-year mandate in a two-round first-past-the-post voting system. This often leads to the two chambers being made up of contrasting proportions of the political spectrum. As a result, the governing coalition rarely enjoys a safe majority in both houses. This institutional feature, coupled with the notoriously unstable position of governments in the Czech constitutional system,7 makes the Senate stronger than the constitutional text would suggest. Additionally, the Senate has been entrusted with the important competence of confirming the appointment of Constitutional Court Justices. The executive branch consists of the Government, which is considered the highest executive body, and the President, who is the Head of State. Prosecutors are also mentioned as part of the executive branch (Article 80 of the Constitution), but they enjoy a rather specific status. On paper, the President is much the weaker, but in practice that is not necessarily so. In fact, the relatively strong position of the President, boosted by the introduction of the direct election of the President in 2012, the notorious instability of the governments, and animosities among the key political leaders have always posed a significant institutional challenge.8 Moreover, the President has a major say in staffing the Constitutional Court as the President is the only entity that can nominate its Justices.9 In fact, Czechia has adopted the American model of selecting Justices in its entirety, as the President nominates all Justices and the Senate then confirms them. This solution is rather unusual for a parliamentary democracy and cannot be found anywhere else in Europe. Judicial power is entrusted to the ordinary courts and the Czech Constitutional Court. The very strong position of the Constitutional Court is one of the most important features of the Czech constitutional 7 See also Chapter 5. 8 For further details see Chapter 7. 9 The Senate then affirms the Justices. For more details see David Kosař and Ladislav Vyhnánek, ‘The Constitutional Court of Czechia’, in Armin von Bogdandy, Peter Huber and Christoph Grabenwarter (eds), The Max Planck Handbooks in European Public Law, Vol III: Constitutional Adjudication: Institutions (Oxford: Oxford University Press, 2020), 119–82.

The Pluralist Constitution  39 system, as several parts of this book will make clear.10 Interestingly, from the comparative perspective, the Czech Constitution prohibits the establishment of any special court11 and explicitly abolishes military justice permanently.12 Finally, the Constitution also includes a basic framework of territorial self-government. The position of self-governing units has been one of the more dynamic aspects of the Czech constitutional system, in terms of both legislative activity and the Constitutional Court’s case law. Most importantly, the Czech Parliament created Higher Self-Governing Units in 1997 and the Constitutional Court has gradually empowered municipal authorities vis-à-vis the central state organs. We discuss this development in more detail in Chapter 6. II.  THE PLURALIST CONSTITUTION

As we mentioned above, the value clash between the proponents and opponents of an entrenched charter of rights has resulted in the division of the main constitutional text into two basic documents: the Constitution itself and the Charter of Rights and Freedoms. This fact is reflected by the 1993 Constitution in its Article 112, which creates the concept of ‘constitutional order’. According to this provision, the constitutional order of the Czech Republic consists of: this Constitution, the Charter of Fundamental Rights and Basic Freedoms, constitutional acts adopted pursuant to this Constitution, and those constitutional acts of the National Assembly of the Czechoslovak Republic, the Federal Assembly of the Czechoslovak Socialist Republic, and the Czech National Council defining the state borders of the Czech Republic, as well as constitutional acts of the Czech National Council adopted after the sixth of June 1992.

The Czech constitution thus consists of a set of constitutional laws rather than a single comprehensive document. Besides the Constitution,13 the Charter14 and the constitutional laws defining the state borders of the Czech Republic, there are currently three other constitutional laws.



10 See

Chapters 4, 6 and the Conclusion. of the Constitution. of the Constitution. 13 Constitutional Law no 1/1993 Coll. 14 Decision no 2/1993 Coll. 11 Article 91(1) 12 Article 110

40  The Challenge of a Pluralist Constitution First, there is the Constitutional Law on the Security of the Czech Republic15 which contains a basic regulation of states of emergency. Secondly, there is a Constitutional Law Establishing the Higher Self-Governing Units.16 Finally, the Constitutional Law on the Referendum on the Accession to the European Union17 is a rather peculiar part of the constitutional order within the meaning of Article 112(1) of the Constitution. Its peculiarity lies in the fact that it is an ad hoc Constitutional Law that – though still formally valid – became normatively exhausted after the actual referendum had taken place in 2003. It is however crucial to mention that the concept of constitutional order – or rather its precise content – has been contested. Most importantly, the Constitutional Court has interpreted it in an extensive manner. In the so-called Euro Amendment judgment,18 it ruled that international human rights treaties, a category explicitly mentioned in the Constitution since 2001, also form part of the constitutional order, and it has treated them as such ever since.19 Given the fact that the Constitutional Court grants the European Court of Human Rights (ECtHR)’s case law normative precedential power, the Euro Amendment judgment has had wide repercussions. After this judgment, it is important to distinguish between international human rights treaties meeting the requirements of Article 10 of the Constitution on the one hand, and ‘other’ Article 10 treaties. The former have constitutional rank and belong to the Czech constitutional order, while the latter have merely priority of application before statutory law.20 This constitutionalisation of international human rights treaties has had a far-reaching impact on the Czech legal system and has significantly shaped Czech human rights jurisprudence. To complete the picture, the Constitution also defines the hierarchy of sub-constitutional sources of law. The status of statutes (zákony), the Senate’s statutory measures (zákonná opatření), government regulations (nařízení vlády),21 ministerial decrees (vyhlášky ministerstev)22 and directives of territorial self-governing units issued in the area of assigned public administration (nařízení obce or nařízení kraje)23 is clear, as these

15 Constitutional

Law no 110/1998 Coll. Law no 347/1997 Coll. Law no 515/2002 Coll. 18 Judgment of the Constitutional Court of 25 June 2002, Pl ÚS 36/01, Euro Amendment. 19 The context and analysis of this decision follow in Section IV below. 20 See the text after the semi-colon in Article 10 of the Czech Constitution. 21 See Article 78 of the Czech Constitution. 22 See Article 79(3) of the Czech Constitution. 23 See Article 79(3) in conjunction with Article 105 of the Czech Constitution. 16 Constitutional 17 Constitutional

The Eternity Clause  41 sources of law follow a clear hierarchical order.24 Regarding statutes, it is also important to emphasise that those statutes that must be passed by both chambers of the Parliament25 and those that directly implement the Czech Constitution, such as the Municipalities Act, are often considered organic laws or super-statutes.26 III.  THE ETERNITY CLAUSE

According to Article 1(1), ‘[t]he Czech Republic is a sovereign, unitary, and democratic state governed by the rule of law [27], founded on respect for the rights and freedoms of men and of citizens’. Article  9(2) then further entrenches some of the principles set out in Article 1(1). More specifically, the Eternity Clause provides that ‘[a]ny changes in the essential requirements of a democratic state governed by the rule of law are impermissible’. Even a quick glance at the text of these provisions reveals that Article 1(1) of the Constitution and the Eternity Clause are interrelated and have two concepts in common, namely the principles of democracy and the rule of law. The other principles mentioned in Article  1(1) of the Constitution, namely the unitary state, sovereignty and respect for human rights, are not explicitly protected by the Eternity Clause, but that does not necessarily mean that they are not significant for its interpretation. Unlike some others,28 the Czech Constitution does not include a more detailed list of values and principles entrenched in the Eternity Clause. Therefore, in order to understand the substantive content and meaning of this clause we must analyse the relevant case law of the Czech Constitutional Court as well as the doctrinal efforts to make sense of it.

24 Note that in order to avoid unnecessary confusion in English we depart from literal translation and use a different term for each of these sources of law, even though the original Czech wording of the Czech Constitution employs the same term ‘nařízení’ for several sources of law. 25 See Article 40 of the Constitution. 26 See Section V below. 27 More precisely, neither provision mentions the ‘rule of law’ in the proper sense. It is based on the notion of ‘právní stát’, which is the literal translation of the German ‘Rechtsstaat’. There are some conceptual differences between ‘Rechtsstaat’ and ‘rule of law’, mostly related to the substantive aspects of the respective concepts. See Chapter 3, Section II. 28 See eg Article  79(3) of the German Basic Law and Article  288 of the Portuguese Constitution.

42  The Challenge of a Pluralist Constitution Before doing that, however, it is important to understand the logic and consequences of inclusion of the aforementioned abstract principles in the very core of the Czech constitutional project. First, these principles are not unique or specific to the Czech Republic as a political community. The concept of sovereignty (notwithstanding the disputes about its content and evolution) has been a definitional sign of a state ever since the Westphalian consensus.29 Democracy, the rule of law and respect for human rights are considered core principles of western liberal democracies as well as of the EU. Even the principle of a unitary state is hardly something that would make the Czech Constitution specific and recognisable. The Eternity Clause, or at least its abstract textual expression, thus emphasises not the ‘unique features’ of the Czech Republic and its aspirations, but rather the values and aspirations it shares with other states, especially with the Western and Central European ones. The preamble to the Czech Constitution bolsters this understanding by referring to the Czech Republic as ‘a part of the family of democracies in Europe and around the world’. A similar trend is recognisable even in the case law of the Czech Constitutional Court, which seems to be quite open to foreign and supranational inspirations.30 Integration of the Eternity Clause in the 1993 Constitution should come as no surprise if we consider the origins of the Czech constitutional project. As we emphasised in Chapter 1, after the fall of the communist regime and the short intermezzo before the dissolution of Czechoslovakia, the Czech Republic aimed to deal with its past and then ‘return to Europe’,31 where it thought it belonged. The constitutional emphasis on the shared values of liberal democracies was a logical choice from both points of view. As we have suggested above, the more precise content of the Eternity Clause and its relation to Article 1(1) of the Constitution have been developed in the Constitutional Court’s case law. In fact, the Constitutional Court has been the single most important player in both developing the content of the Eternity Clause and giving it some bite and practical effect. 29 See eg José E Alvarez, ‘State Sovereignty Is Not Withering Away: A Few Lessons for the Future’, in Antonio Cassese (ed), Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012). 30 See also Ladislav Vyhnánek, ‘A Holistic View of the Czech Constitutional Court Approach to the ECtHR’s Case Law’, Heidelberg Journal of International Law: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 77, no 3 (2017), 715–44. 31 See Chapter 1, Section VII.

The Eternity Clause  43 First, the Constitutional Court does not limit the extent of the Eternity Clause to the values and principles explicitly mentioned in the text of Article 9(2) of the Constitution. Relying on Article 1(1) of the Constitution, the Court recognised protection of the fundamental rights32 and state sovereignty33 as an integral part of the Eternity Clause and thus expanded its scope. Furthermore, the Constitutional Court had several opportunities to specify the meaning of the principles protected by the Eternity Clause. It interpreted the rule of law principle as including several more specific components such as the prohibition of the arbitrary overruling of previous case law,34 the prohibition of retroactivity35 and the principle of the generality of law.36 The democratic principle then includes popular sovereignty and representative democracy37 as well as some basic principles of electoral law.38 As regards the protection of fundamental rights, the Czech Constitutional Court has even held that ‘limiting an already achieved procedural level of protection of fundamental rights and freedoms’ is inconsistent with the Eternity Clause.39 A similar – but slightly wider – understanding of the Eternity Clause can be found in doctrinal literature. In the commentary on the Constitution, Šimíček included the following principles as within the scope of the Eternity Clause: the sovereignty of the people, the entrenchment and protection of fundamental rights, the rule of law, free competition among political parties, majority rule complemented by the protection of minorities, limited terms of office, basic principles of election law, judicial independence, the separation of powers and basic features of self-government.40 Some authors have suggested that the Czech Constitution – just like any other constitution – has a certain ‘substantive core’ that reflects its inner logic and integrity and that the existence and importance of these core principles is not dependent on the Eternity Clause.41 In the event of 32 Judgment of the Constitutional Court of 29 May 1997, III ÚS 31/97. 33 Lisbon I judgment, in particular para 97. 34 Judgment of the Constitutional Court of 11 June 2003, Pl ÚS 11/02. 35 Judgment of the Constitutional Court of 10 September 2009, Pl ÚS 27/09, Melčák. 36 Ibid. 37 Judgment of the Constitutional Court of 21 December 1993, Pl ÚS 19/93. 38 Judgment of the Constitutional Court of 6 February 2001, Pl ÚS 42/2000. 39 Judgment of the Constitutional Court of 25 June 2002, Pl ÚS 36/01. 40 Vojtěch Šimíček, ‘Komentář k čl. 9’, in Lenka Bahýľová, Jan Filip, Pavel Molek et al (eds), Ústava České republiky: Komentář (Prague: Linde, 2010), 153–63. 41 See Pavel Molek, Materiální ohnisko jako věčný limit evropské integrace? (Brno: MUNI Press, 2014).

44  The Challenge of a Pluralist Constitution a change or a removal of the substantive core, the integrity of the affected constitution would be destroyed and consequently the old constitution would be replaced by a new one with a new substantive core. The concept of the substantive core is thus very similar to the understanding of the eternity clause in Norway, according to which the ‘spirit’ and ‘principles’ of the Norwegian constitution cannot be amended.42 In the Czech discourse, Molek argues that the Czech Eternity Clause is an attempt to express the constitution’s substantive core but that it fulfils this aim only approximately. He claims that the scope of the Eternity Clause is in some respects narrower than the substantive core. For example the republican form of government forms a part of the Czech Constitution’s substantive core even though it is not covered by the Eternity Clause.43 Similarly, Preuss claims that the nature of the Czech Republic as a unitary state as opposed to a federation might be understood as a part of the constitution’s substantive core despite its not being mentioned by the Eternity Clause.44 In other words, substantive core is an ideal compressed essence that each constitution logically possesses, whereas the Eternity Clause is just an explicit prohibition on altering certain basic principles of the Czech Constitution. Despite significant overlaps between the two concepts, they are not identical. Finally, it is important to add that no matter how deeply the impermissibility of changes of the Eternity Clause and the substantive core are entrenched in the 1993 Constitution, both concepts could be replaced or modified by a revolution, that is by change stemming from outside of the existing constitutional system. In theory, both Orbán’s (brand new constitution) and Erdogan’s (ad hoc constitutional referendum) scenarios are thus possible. However, these scenarios would be considered extra-constitutional and it is unclear how the Constitutional Court would react to such change if it were to touch the Eternity Clause or the substantive core. As a matter of law, we only know that the Eternity Clause is untouchable by any institution acting within the 1993 Constitution.45

42 See Eivind Smith, ‘Old and Protected? On the “Supra-constitutional” Clause in the Constitution of Norway’, Israeli Law Review 44, no 3 (2011): 369–88. 43 Molek, Materiální ohnisko, 91. 44 Ondřej Preuss, ‘Demokratický právní stát tesaný do pískovce’, Časopis pro právní vědu a praxi 24, no 3 (2016), 365–76. 45 Judgment of the Constitutional Court of 10 September 2009, Pl ÚS 27/09, Melčák.

International and Supranational Sources  45 IV.  INTERNATIONAL AND SUPRANATIONAL SOURCES

Few events have affected the modern Czech constitutionalism more than accession to the EU in 2004. It led to the most comprehensive constitutional amendment of the 1993 Constitution so far, resulting in the only nation-wide referendum, and the accession process became a motor of widespread change in public law.46 EU accession has also led to the gradual penetration of EU law into the Czech legal system. However, the precise position of EU law within the Czech constitutional order is still hotly debated. It was again the Constitutional Court that played the most active role in determining the relationship between domestic law and EU law. The opportunity came quite early. In 2006, less than two years after the accession, the Constitutional Court issued its Solange-like47 judgment, Sugar Quotas III. While generally accepting the supremacy of EU law, it explicitly rejected the possibility of its unconditional supremacy.48 In the event that the EU and its legal order ceased to fulfil the ‘conditions of conferral’, the Constitutional Court hinted that it would feel obliged to ensure that the competences previously conferred on the EU were retrieved. This warning did not remain isolated in the case law of the Czech Constitutional Court. In the Lisbon I judgment49 the Court reiterated that in the event of a clear conflict between the Czech Constitution and EU law that could not be overcome by any reasonable interpretation, the constitutional order of the Czech Republic, in particular its substantive core, had to take precedence. The Constitutional Court thus held that the core parts of the constitutional order (basically the Eternity Clause) are absolutely protected not only from domestic interferences, but also from changes stemming from international and European obligations. Thus, for the Constitutional Court, at least rhetorically, the obligation to respect the primacy of EU law was never considered an unconditional one. Despite these bold warnings, the Constitutional Court’s practical stance towards EU law has been rather welcoming and accommodating. In the European Arrest Warrant judgment50 the Constitutional Court 46 See Chapter 1, Section VII. 47 BVerfGE 73, 339 2 BvR 197/83, Solange II decision. 48 Judgment of the Constitutional Court of 8 March 2006, Pl ÚS 50/04, Sugar Quotas III. 49 Judgment of the Constitutional Court of 26 November 2008, n Pl ÚS 19/08, Lisbon I. 50 Judgment of the Constitutional Court of 3 May 2006, Pl ÚS 66/04, European Arrest Warrant.

46  The Challenge of a Pluralist Constitution held that there is an obligation to interpret domestic law in a manner consistent with EU law, which applies even with regard to the constitutional rules. The compatibility of the European Arrest Warrant with the Charter of Fundamental Rights and Freedoms was objectively questionable, because Article 14(4) of the Charter explicitly guarantees that no citizen may be forced to leave her homeland. However, the Czech Constitutional Court went to great lengths to find an interpretation of the Charter that would be compatible with the European Arrest Warrant framework decision or, more precisely, with the law implementing it. This approach is all the more noteworthy in view of the fact that other European Constitutional Courts did not employ as euro-friendly an interpretation as the Czech one.51 This led even foreign authors to note that ‘[i]n contrast to its Polish (and especially German) counterpart, the Czech Constitutional Court tried to minimise any kind of possibility of a clash between its constitutional fundamentals and the European legal order’ and that ‘[i]t did not engage in any kind of sovereignty discourse, which would be typical in the context of extradition procedures that usually trigger serious concerns for the protection by the state of its own citizens’.52 In its subsequent case law, including the Lisbon I and Lisbon II53 judgments, the Constitutional Court applied the welcoming and accommodating ‘EU friendly’ interpretation even with regard to the basic principles of the Czech Constitution. It held that the concept of sovereignty can no longer be understood in a traditional sense as a rigid legal concept, but rather as a concept with a practical, moral and existential dimension. Therefore, the Constitutional Court does not view European integration and the strengthening of democratic processes at the EU level as a prima facie challenge to democracy at the national level. Instead, the existence of elements of representative democracy at the Union level does not rule out implementation of those same elements presupposed by the constitutional order of the Czech Republic, nor does it mean exceeding the limits of the transfer of powers established by the Czech Constitution. 51 Germany and Poland, eg, had to find other (legislative) ways to accept the effects of the framework decision. See eg Jan Komárek, ‘European Constitutionalism and the European Arrest Warrant: In Search of the Limits of “Contrapunctual Principles”’, Common Market Law Review 44, no 1 (2007): 9–40. 52 Darinka Piqani, ‘Constitutional Courts in Central and Eastern Europe and their Attitude towards European Integration’, European Journal of Legal Studies 1, no 2 (2007): 213–34, 225 (both citations). 53 Judgment of the Constitutional Court of 3 November 2009, n Pl ÚS 29/09, Lisbon II.

International and Supranational Sources  47 The only clear exception to the generally euro-friendly attitude of the Czech Constitutional Court is the Holubec judgment.54 In this case the Czech Constitutional Court held that the Court of Justice of the European Union had acted ultra vires when it issued its ruling in the Landtová case,55 which impugned the previous case law of the Czech Constitutional Court relating to the pension benefits of people adversely affected by the dissolution of Czechoslovakia.56 However, the importance of this judgment for the future evolution of the Czech Constitutional Court’s case law should not be overestimated. It can be argued that this exception was motivated by predominantly domestic reasons and not by an aspiration to take on the Court of Justice. The Czech Constitutional Court’s act of defiance was merely a flashpoint in its long and somewhat bitter struggle with the Supreme Administrative Court, which refused to follow the Constitutional Court’s case law and, in the end, decided to drag the Court of Justice onto the battlefield. Despite being interesting for both EU and constitutional scholars, the Holubec judgment thus can hardly be seen as a true reflection of the Czech Constitutional Court’s attitude towards EU law. From the comparative perspective, however, this judgment is no longer an outlier case or material for footnotes in EU law textbooks. The recent case law of the Polish Constitutional Tribunal under the control of the ruling Law and Justice party,57 the Danish Supreme Court’s Ajos judgment58 and especially the PSPP ruling of the German Federal Constitutional Court59 show that the ultra vires doctrine is no longer a dormant weapon in the domestic constitutional courts’ arsenal. The Czech Constitutional Court’s Holubec judgment, however inconsequential in the European space,

54 Judgment of the Constitutional Court of 31 January 2012, Pl ÚS 5/12, Holubec. 55 Court of Justice of the European Union, Case C-399/09, Landtová, ECLI:EU:C:2011:415. 56 For further details of this complex problem see Robert Zbíral, ‘Czech Constitutional Court, Judgment of 31 January 2012, Pl ÚS 5/12: A Legal Revolution or Negligible Episode? Court of Justice Decision Proclaimed Ultra Vires’, Common Market Law Review 49, no 4 (2012): 1475–91; and Michal Bobek, ‘Landtová, Holubec, and the Problem of an Uncooperative Court: Implications for the Preliminary Rulings Procedure’, European Constitutional Law Review 10, no 1 (2014): 54–89. 57 See Wintold Zontec, ‘You Can’t Forbid Judges to Think’, Verfassungsblog, 5 February 2020, verfassungsblog.de/you-cant-forbid-judges-to-think. 58 See Mikael Rask Madsen, Henrik Palmer Olsen and Urška Šadl, ‘Competing Supremacies and Clashing Institutional Rationalities: the Danish Supreme Court’s Decision in the Ajos Case and the National Limits of Judicial Cooperation’, European Law Journal 23, nos 1–2 (2017): 140–50. 59 German Federal Constitutional Court, Judgment of the Second Senate of 5 May 2020, 2 BvR 859/15.

48  The Challenge of a Pluralist Constitution was the first ultra vires ruling by a domestic apex court, and started the debate that will surely continue for quite some time. However, this predominantly pro-EU position of the Constitutional Court has not been shared by all Czech political players and is increasingly less popular with Czech citizens. Both post-Havel Presidents, Václav Klaus (2003–2013) and Miloš Zeman (2013–now), have been rather sceptical of the EU lately, even though they orchestrated Czech accession during their reign as Prime Ministers. Support for the EU has declined among the Czech people as well. Czechia has become one of the most Eurosceptical among the EU Member States, as only 32 per cent of Czechs trust the EU.60 Only the United Kingdom and Greece had lower levels of trust. These numbers reflect a deep division in Czech society and a widely shared view that the perks of accession to the EU have not been shared equally. Another layer of Czech constitutionalism concerns the importance of international law. While the 1993 Constitution has always been open to international law in general, due to the communist past it initially emphasised international human rights law. More specifically, after the dissolution of Czechoslovakia, the Czech Republic decided to single out international human rights treaties, and the incorporation clause in Article 10 of the Czech Constitution referred only to such treaties. The special status of international human rights treaties reflected the need to remedy the communist past and cleanse Czech legislation of legal norms incompatible with human rights. In order to fulfil this role, the Constitution stipulated that international human rights treaties enjoyed higher legal force than statutes and the Constitutional Court could annul statutes solely for their lack of conformity with such treaties.61 The 2002 Euro Amendment significantly changed the position of international treaties. It established a general clause that gave priority to all international treaties, provided that they fulfilled the criteria mentioned in Article  10 of the Czech Constitution. As a result, it was intended that ‘international human rights treaties’ would cease to exist as a separate category of international treaties. Furthermore, the Euro Amendment made clear that all international treaties under Article 10 of the Czech Constitution, including international human rights treaties, enjoy ‘only’ application priority over statutory law and are not of a higher legal force. Finally, it made clear that the Constitutional Court no longer has the power to review the conformity of statutes with the

60 European

Commission, ‘Standard Eurobarometer 90: Autumn 2018’. of the Czech Constitution.

61 Article 87(1)(a)

International and Supranational Sources  49 international human rights treaties. The main aim of these changes was to decentralise the use of incorporated international treaties by pushing ordinary courts to engage with international law more substantively. However, the Constitutional Court reinterpreted this part of the Euro Amendment. In the landmark Euro Amendment judgment62 it held that the international human rights treaties have retained their constitutional status, even though it was disputed whether the international human rights treaties had constitutional rank in the era before the Euro Amendment.63 However, what happened in practice was that the Constitutional Court ‘constitutionalised’ international human rights treaties. This judgment, justified by the need to ensure legal certainty and by transitional justice rationale,64 has three repercussions for international human rights treaties. First, such treaties are a part of the Czech constitutional order and thus they have constitutional rank. Secondly, as international human rights treaties enjoy higher legal force (instead of mere application priority) than statutes, the Constitutional Court can still strike down statutes solely for their lack of conformity with such treaties. Thirdly, the Constitutional Court held that the ordinary courts must still refer a clash between an applicable statute and the international human rights treaty to the Constitutional Court under the concrete review of constitutionality. The Euro Amendment judgment is controversial and was met with criticism, but despite this criticism the Constitutional Court has repeatedly maintained its position, and thus the international human rights treaties enjoy a higher position in the national hierarchy of sources than was envisaged by the text of the Czech Constitution. This means that the Czech Constitution divides international treaties roughly into four categories: (1) the so-called ‘Article  10a treaties’, (2) ‘Article 10 international human rights treaties’, (3) ‘other Article 10 treaties’, and (4) other treaties. ‘Article 10a treaties’, defined in Article 10a of the Czech Constitution, must be ratified by a qualified majority of both chambers of the Czech Parliament65 (or in a referendum) and transfer power from the Czech Republic to an international organisation. 62 Judgment of the Constitutional Court of 25 June 2002, Pl ÚS 36/01, Euro Amendment. 63 See Michal Bobek and David Kosař, ‘The Application of European Union Law and the Law of the European Convention of Human Rights in the Czech Republic and Slovakia: An Overview’, in Giuseppe Martinico and Oreste Pollicino (eds), National Judges and Supranational Laws: A Comparative Overview on the National Treatment of EU Law and the ECHR (Groningen: Europa Law Publishing, 2010), 157–89. 64 Bobek and Kosař, ‘The Application of European Union Law’. 65 See Article 39(4) of the Czech Constitution.

50  The Challenge of a Pluralist Constitution ‘Article 10a treaties’ are thus particularly relevant for the status of EU law in the Czech Republic. The second and third categories, sometimes together referred to as presidential treaties (prezidentské smlouvy), are those international treaties that require the consent of both chambers of the Czech Parliament and are ratified by the Czech President. The key difference between them is that ‘Article  10 international human rights treaties’ have constitutional rank and belong to the Czech constitutional order, while ‘other Article 10 treaties’ merely have application priority before statutory law. Finally, other treaties, sometimes referred to as governmental treaties (vládní smlouvy, resortní smlouvy), are those international treaties that neither transfer power to international organisations nor require the consent of both chambers of the Czech Parliament and ratification by the Czech President. Those treaties do not have application priority before the statutory law. In sum, the Czech Constitution is now very open to EU law, international human rights law, and also general international law. It has clearly adopted the monist concept of understanding the relationship between international law and domestic law. It has also embraced international human rights law, and the ECHR and the case law of the ECtHR in particular. The Constitutional Court has even increased the importance of international human rights law treaties by constitutionalising them. As regards EU law, the Constitutional Court was initially hesitant, but with one exception it has gradually adopted an EU-law-friendly interpretation of the Czech constitutional order. V. SUPER-STATUTES

Although the Czech Constitution, unlike for instance the 1958 French or the 2011 Hungarian Constitution, does not explicitly stipulate a separate category of organic laws or cardinal laws, there is a small group of statutes that enjoy special status within the Czech constitutional system. We will refer to them as super-statutes.66 There are two groups of such statutes. The first group includes statutes that must be passed by both chambers of the Parliament, namely the electoral laws, the Law on the Relationship between the Chamber of Deputies and the Senate, and the Standing Rules of the Senate. This list is an enumerative one and 66 William N Eskridge and John Ferejohn, ‘Super-Statutes’, Duke Law Journal 50 (2001): 1215–76.

Constitutional Conventions  51 has textual support in Article  40 of the Constitution. By far the most important category of super-statutes is ‘electoral laws’, which has been interpreted by the Constitutional Court broadly so as to include not only parliamentary elections, but also presidential elections, elections to selfgoverning assemblies, and elections to the European Parliament.67 The second group of super-statutes comprises those statutes that directly implement the Czech Constitution, such as the Municipalities Law, the Law on Courts and Judges, and the Law on Disciplining Judges and Prosecutors. These super-statutes are formally adopted in a standard legislative procedure,68 but they have deep impact on the foundations of Czech constitutionalism and the Constitutional Court treats them accordingly. Some Czech scholars refer to this second category as organic laws,69 but that can be confusing in a comparative context. The special status of super-statutes does not mean that they have greater legal force. Nor does it necessarily mean that they are adopted by way of a different procedure, as only the first group of super-statutes meets this criterion. They differ from ordinary statutes symbolically, because they penetrate public normative and institutional culture in a deep way. In practical terms, super-statutes are difficult to amend as any change to them is subject to heated public debate and, perhaps even more importantly, the Czech Constitutional Court subjects successfully passed changes to particularly strict scrutiny. VI.  CONSTITUTIONAL CONVENTIONS

Constitutional conventions are the most contested source of Czech constitutional law. Conventions are crucial especially in the frameworkof-government part of Czech constitutionalism, as they provide the necessary glue for the smooth functioning of inter-branch and intrabranch relationships. Yet their normative implications in interpreting constitutional norms have been disputed. On the one hand, the Czech Constitutional Court and apex ordinary courts have on several occasions confirmed the binding nature of constitutional conventions and sometimes even engaged in nuanced debates

67 See Chapter 4, Section II for further details. 68 This means that the consent of both chambers is not required and thus the Chamber of Deputies may overrule the Senate. See Chapter 4, Section II. 69 See Karel Klíma, Odpovědnost územní samosprávy (Prague: Metropolitan University Prague Press, 2014), 25.

52  The Challenge of a Pluralist Constitution about the extent to which constitutional conventions may change the meaning of written constitutional norms. The first big case in which constitutional conventions played a key role concerned the power of the President to appoint a Governor of the Czech National Bank. When Václav Havel intended to appoint a new Governor, the then Prime Minister Miloš Zeman challenged this act before the Constitutional Court. Zeman argued that the President cannot appoint a Governer alone but must seek countersignature by the Prime Minister. A majority of the Constitutional Court eventually sided with Havel, arguing that the newly established constitutional convention altered the meaning of the Constitution.70 A minority of judges disagreed, because this rule had not been used by several presidents over a sufficiently long period of time and there were even some examples of the opposite practice. According to them, the usus longeus requirement of the constitutional convention thus was not met. Paradoxically, Zeman himself benefited from this ruling, when he became a Czech President as he could choose the Governor according to his liking without consultation with the Prime Minister. A perhaps even more consequential dispute concerned the appointment of judges. In 2005 President Václav Klaus refused to appoint 34 judges nominated by the Government, allegedly because they were too young. Most of the rejected judicial trainees sued the President before administrative courts, but only Mr Langer pursued this dispute until the end. We discuss his dispute in more detail in Chapter 5, Section II. Here it suffices to say that according to the Supreme Administrative Court, a constitutional convention had evolved that the President, when faced with a governmental recommendation of a certain candidate to be appointed as a judge, must either appoint that candidate as a judge or issue a reasoned individual decision justifying the refusal.71 This constitutional convention thus limited the unfettered discretion of the President. On the other hand, some key constitutional actors have not internalised this position and reject constitutional conventions. For instance, Václav Klaus did not respect the Langer judgment. He never appointed Mr Langer into judicial office and he did not issue a reasoned decision justifying his position. Mr Langer received modest compensation and 70 See Judgment of the Constitutional Court of 20 June 2001, Pl ÚS 14/01, Appointment of the Governor of the Czech National Bank. 71 See Judgment of the Supreme Administrative Court of 21 May 2008, 4 Ans 9/2007, Langer.

Constitutional Conventions  53 the Langer judgment has not been implemented. Subsequent Czech President Miloš Zeman went even further. He has labelled the concept of constitutional convention ‘idiotic’ and made clear that he will not let himself be bound by unwritten rules.72 Czech scholars have also been rather reluctant to accept constitutional conventions as a source of law. The status of constitutional conventions in Czech constitutionalism is thus not settled. The precise requirements for practice to become a constitutional convention with normative consequences are also unclear. Some Justices of the Constitutional Court have tried to transplant the criteria for customary international law, namely usus longeus and opinion iuris, into Czech constitutionalism. However, the Constitutional Court has employed much looser criteria in its case law. We must add one more caveat here. Two types of constitutional conventions can be distinguished. The first type concerns development of constitutional conventions in areas that typically end up before the Constitutional Court, such as the appointment of judges or key members of the fourth branch constitutional bodies such as the Governor of the Czech National Bank. In these separation of powers issues the Constitutional Court has a major say and may contribute to formation of constitutional conventions. The only constitutional organ against which it is sometimes difficult to enforce the Court’s ruling is the President, but even the President will be under pressure from both other politicians and public opinion. The second type of constitutional conventions arise in situations that are typically outside the reach of the Constitutional Court. These situations include in particular the relationship between the other two branches, namely between the President and the Parliament and between the President and the Government. In this area, having had three strong personalities (Havel, Klaus and Zeman) in the office of President, each with a different vision, has led to a divergent practice that has made it more difficult to establish stable constitutional conventions. For instance, President Miloš Zeman, in an unprecedented way, intervened in the composition of Bohuslav Sobotka’s government (2014–2017) by de facto vetting several ministers on political grounds, despite the broad consensus that the President cannot arbitrarily decide to reject a candidate who has been proposed by the Prime Minister. The fact that it took Zeman 83 days to swear in Sobotka’s government broke the emerging 72 See Lukáš Werner and Jan Wirnitzer, ‘Pojem ústavní zvyklosti je idiotský, řekl Zeman. Němcové nechal naději’, iDNES.cz, 11 July 2013, https://www.idnes.cz/zpravy/domaci/ zeman-sance-na-vladu-pro-cssd-a-byvalou-koalici.A130711_071534_domaci_wlk.

54  The Challenge of a Pluralist Constitution convention that the President must act with undue delay. To mention another example, on two occasions Zeman allowed the Government to run the country without passing the vote of confidence for several months, which encroached upon the competences of the Chamber of Deputies, to which the Government is supposed to be responsible. We discuss these disputes in more detail in Chapter 5. In other cases, also outside the judicial review, by refusing to follow the Constitution, Czech Presidents forced other actors to create a convention in return. For instance, under the Constitution the President must either sign a Bill or return it to the Parliament for reconsideration. This is a standard suspensive veto. However, President Klaus as well as President Zeman, when they disagreed with the law, sometimes neither signed nor vetoed a particular Bill. Sometimes they did so because they knew that their veto would be overruled. In other cases, they appealed to the voters and used this move as a political gesture. These acts of defiance led to a new convention that assumes that when the President neither signs nor vetoes a Bill within 15 days, the President has tacitly signed it. This was actually the only possible solution as otherwise the President, by doing nothing, would have an absolute veto. VII.  JUDICIAL DECISIONS AS A SOURCE OF CONSTITUTIONAL LAW

Czechia belongs to a civil law family and does not embrace the common law system of precedent and the accompanying ‘case-law method’. Judicial decisions are not considered a formal source of law and there is no such thing as stare decisis. This does not mean, however, that judicial decisions have no normative weight and that Czech courts and lawyers do not use previous judicial decisions in their argument. They just do so in a different way. They prioritise the legislative model of reasoning with previous decisions, in which judicial decisions are written in a quasistatutory language that is detached from the concrete facts of the case. Holdings and obiter dicta are often not distinguished and all parts of judicial decisions are considered binding on lower courts.73 Therefore, this model differs significantly from the case-bound model of reasoning with previous decisions, typical for common law countries, which emphasises deciding concrete cases and controversies. 73 See Jan Komárek, ‘Reasoning with Previous Decisions: Beyond the Doctrine of Precedent’, The American Journal of Comparative Law 61, no 1 (2013): 149–72.

Judicial Decisions as a Source of Constitutional Law  55 The Constitutional Court has changed the typical civil-law understanding of reasoning with previous judicial decisions (legislative model) and moved much closer to the common law (case-bound) model. Importantly, according to the Constitutional Court, some of its rulings are also considered binding sources of constitutional law.74 The key constitutional provision regulating the effects of the Constitutional Court’s rulings can be found in Article 89(2) of the Constitution, which reads as follows: ‘[e]nforceable rulings of the Constitutional Court are binding on all authorities and persons’. However, this provision gives very few answers to practical questions and various issues surrounding the rulings’ effects. Interpretation of the term ‘enforceable’ has caused few problems so far. According to Article  89(1) of the Constitution, rulings of the Constitutional Court are enforceable as soon as they are announced in the manner provided for by statute unless the Constitutional Court decides otherwise. On the other hand, two general questions concerning Article 89(2) have been particularly controversial. First, it has been debated which rulings, and which parts of an individual ruling, are considered binding. Secondly, there are various opinions on the nature and extent of the binding power itself. The direct effects of the Constitutional Court’s rulings are generally accepted. Even though Article 89(2) of the Constitution mentions ‘rulings’ in general, only judgments can have any meaningful direct effects, namely annulment of a piece of legislation or a decision of the ordinary court.75 In contrast, the debate on the effects of precedents has not yet been settled. The main issue is what exactly has the erga omnes effect (‘are binding on all authorities and persons’) anticipated by Article 89(2) of the Constitution. An ‘anti-precedential’ sector of literature suggested, mainly in the 1990s, that only the operative part of a ruling and not its reasoning could have erga omnes effects. However, the case law of the Constitutional Court soon asserted that the main reasons (tragende Gründe) for the ruling have certain precedential effects.76 According to the Constitutional Court, the ordinary courts as well as other state organs have a constitutional duty to follow the main reasoning of the Constitutional Court’s rulings in similar cases. This led, though indirectly, to an obligation to have knowledge of the Constitutional Court’s case law.



74 See

eg Judgment of the Constitutional Court of 13 November 2007, IV ÚS 301/05. decision does not even constitute res iudicata (Article 35(1) LCC a contrario). 76 Judgment of the Constitutional Court of 13 November 2007, IV ÚS 301/05, §§ 55 et seq.

75 A

56  The Challenge of a Pluralist Constitution The other constitutional actors have gradually accepted the notion of precedential effect,77 even though in some cases we may still encounter some resistance from the ordinary courts. Perhaps the best example of such resistance is the ‘Slovak pensions’ saga which involved a conflict between the Supreme Administrative Court and the Constitutional Court.78 The Supreme Court had similar encounters with the Constitutional Court in the 1990s concerning the interpretation of the ne bis in idem principle. This eventually led to conflict between both courts and it took several years until the Constitutional Court prevailed. We discuss these ‘wars of the courts’ in more detail in Chapter 7. In sum, the Constitutional Court has not only vigorously enforced the precedential effects of its judgments, but has also employed creative tactics concerning how to increase its influence on Czech law. For instance, it has been using interpretative rulings, sometimes coupled with a new positive rule, in its judgments. Exceptionally, the Constitutional Court pronounces a judgment in which it both annuls the law and states a binding interpretation of the law or annuls the law and provides guidelines to the legislature about how a new law shall be framed. In a unique set of cases concerning regulated rents, the Constitutional Court even directed ordinary courts to increase rents themselves to fill the unconstitutional gap left by an entirely passive legislature.79 In those cases the Constitutional Court acted as a de facto positive legislator. However, despite these deviations from its role as ‘negative legislator’, the Constitutional Court has been careful not to go too far. The conception of the Constitutional Court acting merely as negative legislator still remains a continuing narrative in the Court’s own jurisprudence and serves as an important factor in legitimising the Constitutional Court’s decision making.80 This is a natural act of self-defence, as this narrative dominates legal discourse as well as expectations of political actors. The ordinary courts, including both apex courts, have been more reluctant to accept the case-bound model of reasoning with previous decisions.

77 See the discussion in Ladislav Vyhnánek, ‘Judikatura v ústavním právu’, in Michal Bobek and Zdeněk Kühn (eds), Judikatura a právní argumentace (Prague: Auditorium, 2013), 353. 78 See Zbíral, ‘Czech Constitutional Court, Judgment of 31 January 2012’ and other literature cited above in n 56. 79 Zdeněk Kühn, ‘Czech Republic’, in Allan R Brewer-Carías (ed), Constitutional Courts as Positive Legislators: A Comparative Law Study (Cambridge: Cambridge University Press, 2011), 445–70. 80 Kühn, ‘Czech Republic’.

Conclusion  57 They prefer the legislative model of reasoning and rely heavily on headnotes that summarise the rule derived from the given case, which is stripped from its context. They use the terms such as ‘obiter dictum’ occasionally, but they generally do not distinguish between ratio decidendi and obiter dictum and find the whole reasoning binding. This creates a tension between the Supreme Court and the Supreme Administrative Court on the one hand, and the Constitutional Court on the other, and may even lead to a ‘war of courts’ as referred to above. VIII. CONCLUSION

The Czech constitution is not a single document. Instead, it consists of a complex web of norms that include the 1993 Constitution, the separate Charter of Fundamental Rights and several other constitutional laws concerning national security and territorial self-governance. The drafters equipped the 1993 Constitution with all modern constitutional concepts such as the Eternity Clause, super-statutes, militant democracy, ­bicameralism, autonomous territorial self-governance, and the fourth (the Czech National Bank) and fifth (the National Auditing Office) branches. Many of these concepts were heavily contested in the early 1990s, but they have become entrenched over time. Czech constitutionalism has also openly embraced international human rights law treaties, and since the 2002 Euro Amendment it has embraced also European law and international law more generally. The Constitutional Court has further expanded the reach of the key concepts and supranational instruments. It has constitutionalised international human rights treaties, brought the Eternity Clause to life, found constitutional conventions justiciable, and expanded the category of super-statutes. At the same time, the deep disagreement seen during the drafting process between Havel and Klaus on several major constitutional issues has not disappeared. The sitting Prime Minister, Andrej Babiš, called for abolishing the Senate and changing the election of mayors,81 several political parties endorse tools of direct democracy, and many politicians would like to clip the Constitutional Court’s wings. These pushes and pulls in opposite directions also affect the key substantive concepts of Czech constitutionalism, which we discuss in the next chapter.

81 Andrej Babiš, O čem sním když náhodou spím [What do I dream about when I am accidentally asleep] (Prague: Czech Print Center, 2017).

58  The Challenge of a Pluralist Constitution FURTHER READING Albi, Anneli. EU Enlargement and the Constitutions of Central and Eastern Europe. New York: Cambridge University Press, 2005. Bobek, Michal, and David Kosař. ‘The Application of European Union Law and the Law of the European Convention of Human Rights in the Czech Republic and Slovakia: An Overview’, in Giuseppe Martinico and Oreste Pollicino (eds), National Judges and Supranational laws. A Comparative Overview on the National Treatment of EU Law and the ECHR. Groningen: Europa Law Publishing, 2010, 157–89. Broz, Jan, and Jan Chmel (eds). Pohled za oponu: studie o vzniku Ústavy České republiky a o kontextu její interpretace. Prague: Leges, 2017. Filip, Jan. ‘Zapomenuté inspirace Ústavy ČR: k 10. výročí přijetí Ústavy ČR’. Časopis pro právní vědu a praxi 10, no 4 (2002): 295–302. Kosař, David, and Ladislav Vyhnánek, ‘The Constitutional Court of Czechia’, in Armin von Bogdandy, Peter Huber and Christoph Grabenwarter (ed), The Max Planck Handbooks in European Public Law, Vol. III: Constitutional Adjudication: Institutions. Oxford: Oxford University Press, 2020, 119–82. Kosař, David, Jan Petrov, Katarína Šipulová, Hubert Smekal, Ladislav Vyhnánek and Jozef Janovský. Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance. Abingdon: Routledge, 2020. Kysela, Jan (ed). Deset let Ústavy ČR: Východiska, stav, perspektivy. Prague: Senát Parlamentu České republiky, 2003. Preuss, Ondřej. ‘Demokratický právní stát tesaný do pískovce’. Časopis pro právní vědu a praxi 24, no 3 (2016): 365–76. Svoboda, Veronika. ‘Vznik Ústavy České republiky’. Doctoral dissertation, Charles University, Prague, 2018. Syllová, Jindřiška, and Miroslav Sylla. Ústava České republiky 1992: Dokumenty a ohlasy Prague: Wolters Kluwer, 2018. Wagnerová, Eliška. ‘The Direct Applicability of Human Rights Treaties’, in The status of international treaties on human rights, Venice Commission. Strasbourg: Council of Europe Publishing, 2006, 111–28. Wintr, Jan. Principy českého ústavního práva, 4th edn. Prague: Aleš Čeněk, 2018.

3 Constitutional Principles Popular Sovereignty – Democracy – Rule of Law – Rechtsstaat – Separation of Powers – Political Sovereignty – Unitary State – Fundamental Rights – Welfare State – Secularism

C

zechia does not have a primary unifying ideology such as Catholicism or nationalism. Czechs in fact suffered from forced catholicisation during the Habsburg Empire and the Catholic Church has never recovered from this legacy. Protestant denominations, despite the strong and important Hussite Movement in the Middle Ages, have also failed to find traction among Czechs. Czechs experimented with the communist ideology after World War II, but after the crushing of the 1968 Prague Spring the communist regime lost its support among the people and relied on technocratic governance until the Velvet Revolution. Since 1989 the Communist Party has remained in parliament but has never been formally1 a part of the ruling coalition and currently is on the verge of becoming a non-parliamentary party due to its ageing electorate. Nationalism was an important driving force in the fight for greater autonomy and then an independent state in the late 19th and early 20th centuries. It was prevalent also in inter-war Czechoslovakia due to the large German minority, but after the expulsion of Germans in the wake of World War II and the dissolution of Czechoslovakia four decades later it lost its force, as Czechia became an ethnically homogenous state. The unifying ethos of the Czech state can thus be found in the secular, humanistic and egalitarian tradition that dates back to the Hussite Movement, Bohemian Reformation and John Amos Comenius. Tomáš Garrigue Masaryk, the first Czechoslovak president, built on this tradition. So did the Charter 77 movement during the communist era and 1 Note that since the 2017 parliamentary elections the Communist Party has tacitly supported the Government of Andrej Babiš from ANO.

60  Constitutional Principles Václav Havel after the Velvet Revolution. This is coupled with a strong belief in freedom and equality. Suffering under Habsburg rule, Hitler’s Nazi Germany and communist rule under the tutelage of the Soviet Union has led to an ethos of protection of the rights and freedoms of the individual and strong longing for self-rule. The very first provision of the 1993 Constitution reflects this legacy as it stipulates that the Czech Republic is a sovereign, unitary and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of its citizens.2 These five principles provide an essence of Czech constitutionalism. Two of them, the democratic principle and the Rechtsstaat principle, stand out since their core is explicitly protected by the Eternity Clause,3 and thus we will address them first. Then we will analyse the principle of separation of powers, which is closely related to the Rechtsstaat principle, the principle of sovereignty and the unitary state principle, both of which attracted renewed attention following the Lisbon Treaty and the European migrant crisis. Subsequently, we will briefly deal with the principle of protection of fundamental rights, to which we devote a separate chapter.4 Finally, we will explain the importance of the implicit welfare state principle. I.  THE DEMOCRATIC PRINCIPLE

While the Czech Constitution honours government of the people, by the people and for the people, it puts a different emphasis on each of these three components of popular sovereignty. Importantly, popular sovereignty is not explicitly mentioned in the Constitution. However, government of the people is implicitly guaranteed by Article 2(1) which states that the people are ‘the source of all power in the State’. In other words, in Czechia there is no source of state power other than the people and state power can be exercised only through bodies of the state which are derived from the people either directly or indirectly, and thereby legitimised to exercise that power. Thus, the chain of legitimacy must ultimately lead to the people. This argument has often resonated within Czech politics and was, for instance, used as one of the main arguments for rejecting the judicial council that would allow for the selection of

2 Article 1(1)

of the Constitution. of the Constitution. See Chapter 2, Section III. 4 See Chapter 8. 3 Article 9(2)

The Democratic Principle  61 judges by a body that lacks a clear link to the original source of state power – namely, the people. As for government by the people, the Czech Constitution allows for both the direct and indirect participation of citizens in governance. However, Czechia, as a representative democracy, heavily prioritises an indirect exercise of power by the people through their representatives. The direct exercise of state power by the people on the state level is an exception to the rule and must be explicitly allowed by constitutional law.5 This exception has been triggered only once, when an ad hoc constitutional law on a referendum on the Czech Republic’s accession to the EU was adopted.6 Since then, no political decision has been subject to a nationwide referendum. Finally, the Czech Constitution requires government for the people. Importantly, it makes clear that state authority must serve all citizens and may be asserted only within the limits and in the manner provided for by law. It is thus clear that ‘government for the people’ must be read together with the Rechtsstaat principle and the implicit welfare state principle. The democratic principle itself is articulated mainly in Article 1(1) of the Constitution and Article 2(1) of the Charter, both of which provide that the state is founded on democratic values and must not be bound either by an exclusive ideology or by a particular religion. This principle is also mirrored in Article 23 of the Charter which guarantees the right to resistance and makes clear that citizens have the right to resist anybody who would do away with the democratic order of human rights and fundamental freedoms established by the Charter, and if the work of the constitutional organs and an effective use of legal means are frustrated. The democratic principle results in the principle of majority, but it is moderated by protection of minorities, limits on terms of office, the consensus principle, the protection of political rights and the concept of militant democracy. The principle of majority is stated in Article  6 of the Constitution together with the closely connected principle of the protection of minorities. Political decisions proceed from the will of the majority, expressed by a free vote, but majority decisions must respect the protection of minorities. Another limit on the principle of bare majority stems from the time-limited terms of office of the Government, the President and the Parliament, and the duty to hold regular elections.7 5 Article 2(2) of the Constitution. 6 Constitutional Law no 515/2002 Coll, on the Referendum on the Accession to the European Union. 7 Article 21(1) of the Charter.

62  Constitutional Principles However, the Czech communist past taught the drafters of the Czech Constitution that these basic Schumpeterian principles of democracy are not sufficient, so they embedded other safeguards into the Czech constitutional system. First, the principle of consensus, which is implicitly stated in Article 5 of the Constitution, requires from all participants in political competition that they accept basic democratic precepts and reject violence as a means of asserting their interests. Otherwise this non-violent, open and pluralistic competition would not be possible at all. This is safeguarded in the Political Parties Act8 with its mechanism of dissolution of political parties and movements that disregard these basic consented-to principles of democracy, non-violence and respect for the human rights of all. Secondly, safeguards of political plurality and the protection of political rights serve as another check on the majoritarian vision of Czech democracy. The principle of plurality means that the state is not bound by any concrete ideology or religion,9 and conflicts of opinions are resolved by discussion and voting or elections. Czechs, having been subjected to forced catholicisation and then one-party rule during the communist era, are particularly sensitive to any overarching ideology, and this may also explain why Czechs were so angry when the government adopted church restitution laws in 2012. According to the 2012 opinion poll almost two thirds of Czechs were against the adopted church restitution law, while only one sixth supported it.10 The governing coalition paid a hefty price for this law eventually as it became a major issue in the 2012 regional and Senate elections and 2013 parliamentary elections, where the coalition lost heavily. It is also important to add that all Justices of the ‘Second’ Constitutional Court who voted in favour of the church restitution law and sought re-election to the ‘Third’ Constitutional Court were rejected by the Senate, led by Social Democrats who opposed the church restitution vigorously. The free competition of political forces is set out in Article 22 of the Charter and in Article 5 of the Constitution, which reads: ‘The political system is based on free and voluntary formation of and free competition between political parties respecting the basic democratic precepts and rejecting violence as a means of asserting their interests.’ This plurality

8 Law no 424/1991 Coll, on Political Parties. 9 See Article 2(1) of the Charter. 10 Martin Ďurďovič, ‘Názor veřejnosti na roli církví ve společnosti a na navrácení církevního majetku – září 2012’, Centrum pro výzkum veřejného mínění, 23 October 2012, https://cvvm.soc.cas.cz/media/com_form2content/documents/c2/a1529/f9/pi121023.pdf.

The Democratic Principle  63 is represented by a wide scale of mass media, civic associations and especially political parties which can challenge each other in free and fair elections in which at least two parties must take part. This should preclude the one-party rule which was so deleterious during the communist era. An additional dimension of substantive vision of democracy that directly responds to the communist past is the protection of political rights. The freedom of expression and information, the freedoms of assembly and association in political parties and equal access to public office are thus basic building blocks of the democratic principle and often invoked by the Constitutional Court. Political rights can, however, under specific circumstances undermine democracy. For this reason, the Czech constitutional system embraces the concept of ‘militant democracy’.11 This is discernible even from statutory law that allows for the dissolution of political parties12 and the criminalisation of hate speech. Furthermore, both the ordinary courts and the Constitutional Court accept the concept of militant democracy. Most importantly, in 2010 the Supreme Administrative Court dissolved the Workers’ Party for incitement to violence and threatening the Czech democratic order.13 The Constitutional Court has also repeatedly relied on the concept of militant democracy, especially in its case law on verbal crimes.14 The democratic principle was considered so important by the drafters of the Czech Constitution that they decided to entrench the essential requirements of the democratic principle in the Eternity Clause.15 Since the Constitutional Court found the Eternity Clause justiciable, any changes in the essential requirements of a democratic state governed by the rule of law are impermissible and will be quashed by the Constitutional Court. However, the principle of democracy must be respected not only during the law-making process, but also when laws are interpreted. This rule that prohibits the misuse of interpretation is contained in Article 9(3) of the Constitution which provides that ‘[l]egal norms may not be interpreted so as to authorise anyone to remove or 11 Judgment of the Supreme Administrative Court of 17 February 2010, Pst 1/2009-348. For a broader context see Miroslav Mareš, ‘Czech Militant Democracy in Action Dissolution of the Workers’ Party and the Wider Context of this Act’, East European Politics and Societies: and Cultures 26, no 1 (2012): 33–55. 12 See Arts. 12–16a of Law no. 424/1992 Coll, on Political Parties. 13 Judgment of the Supreme Administrative Court of 17 February 2010, Pst 1/2009-348. 14 Notably the judgment of the Constitutional Court of 28 February 2011, IV ÚS 2011/10, which explicitly invokes the concept of militant democracy and declares it a constitutional principle. 15 On the Eternity Clause see Chapter 2, Section III.

64  Constitutional Principles jeopardise the democratic foundations of the state’. This principle may, at the last resort, also prevent courts from undermining the Czech democratic foundations. II. THE RECHTSSTAAT PRINCIPLE

The Constitution explicitly embraces the Rechtsstaat principle in its very first article and protects its essential requirements by the Eternity Clause. That makes the Rechtsstaat principle, along with the democratic principle, one of the two most important principles of Czech constitutionalism. As a result, conceptualisation of this principle is crucial. To understand the Czech Rechtsstaat principle it is necessary to add three preliminary caveats. First, the Constitution defines neither the principle nor its essential components. This de facto left significant room for the Constitutional Court to pad this vague principle out with more precise content. Secondly, the Czech Constitution explicitly refers to the ‘Rechtsstaat’ (právní stát) and not to the ‘rule of law’ (vláda práva).16 While these concepts are often used interchangeably, there are significant differences between them. Most importantly, ‘Rechtsstaat rests on some sort of connection of between the legal system and the state, [whereas] the rule of law is a quality of, or theory about, a legal order’.17 The choice of the wording in the Czech Constitution thus implies a strong connection between the state and the legal system and makes clear that the state (not just the legal norms) must be of a certain quality to qualify as a Rechtsstaat. It also explains a peculiar understanding of the Czech Rechtsstaat principle, which is very broad and includes several procedural and organisational principles of constitutionalism. Finally, the Czech Rechtsstaat principle is a reactive and value-laden concept, because it reflects the Czech totalitarian past and also the Czech constitutional identity.18 By reason of the Czech past, it is not surprising that the Constitutional Court early on rejected the purely formal reading of the 16 On the differences between the principle of the rule of law and the Rechtsstaat principle see Rainer Grote, ‘Rule of law, Rechtsstaat and “État de droit”’, in Christian Starck (ed), Constitutionalism, Universalism, and Democracy: A Comparative Analysis (Baden-Baden: Nomos, 1999), 269–306. 17 Nicholas Barber, ‘The Rechtsstaat and the Rule of Law’, The University of Toronto Law Journal 53, no 4 (2003): 443–54, at 444. 18 On the Czech constitutional identity see David Kosař and Ladislav Vyhnánek, ‘Ústavní identita České republiky’, Právník 157 no 10 (2018): 854–72.

The Rechtsstaat Principle  65 Rechtsstaat principle and made clear that the Constitution presupposes material Rechtsstaat. In its understanding of material Rechtsstaat the Constitutional Court built on the reasoning of its federal predecessor, which spelt out its perception of material Rechtsstaat in the Lustration I judgment:19 In contrast to the totalitarian system, which was founded on the basis of the goals of the moment and was never bound by legal principles, much less principles of constitutional law, a democratic state proceeds from quite different values and criteria. … Each state, or rather those which were compelled over a period of forty years to endure the violation of fundamental rights and basic freedoms by a totalitarian regime, has the right to [en]throne democratic leadership and to apply such legal measures as are apt to avert the risk of subversion or of a possible relapse into totalitarianism, or at least to limit those risks. … As one of the basic concepts and requirements of a law-based state [Rechtsstaat], legal certainty must, therefore, consist [of] certainty with regard to its substantive values. Thus, the contemporary construction of a law-based state [Rechtsstaat], which has for its starting point a discontinuity with the totalitarian regime as concerns values, may not adopt … criteria of formal-legal and material-legal continuity which is based on a differing value system, not even under the circumstances that the formal normative continuity of the legal order makes it possible. Respect for continuity with the old value system would not be a guarantee of legal certainty but, on the contrary, by calling into question the values of the new system, legal certainty would be threatened in society and eventually the citizens’ faith in the credibility of the democratic system would be shaken.20

The Constitutional Court accepted this conceptualisation of material Rechtsstaat in its first judgment concerning the Act on the Lawlessness of the Communist Regime: However, the [pre-World War II] positivist tradition … in its later development many times exposed its weakness. … in Germany the National Socialist domination was accepted as legal, even though it gnawed out the substance

19 Pl ÚS 1/92 Lustration I. This judgment has been widely cited in comparative constitutional law casebooks. For further details see also David Kosař, ‘Lustration and Lapse of Time: “Dealing with the Past” in the Czech Republic’, European Constitutional Law Review 4, no 3 (2008): 460–87. 20 Unofficial translation of the Federal Court, available at: https://www.usoud.cz/en/ decisions/1992-11-26-pl-us-1-92-czechoslovak-const-court-lustration.

66  Constitutional Principles and in the end destroyed the basic foundations of the Weimar democracy. After the war, this legalistic conception of political legitimacy made it possible for Klement Gottwald [the first Communist Czechoslovak president] to ‘fill old casks with new wine’. Then in 1948 he was able, by the formal observance of constitutional procedures, to ‘legitimate’ the February Putsch. In the face of injustice, the principle that ‘law is law’ revealed itself to be powerless.21

Since then the Constitutional Court has repeatedly invoked the material reading of Rechtsstaat and this reading is supported by virtually all scholars. There is much less agreement regarding the individual components of the Rechtsstaat principle. As mentioned above, the concept of Rechtsstaat is understood broadly and its components can be divided into five categories: (1) formal Rechtsstaat safeguards; (2) procedural Rechtsstaat safeguards; (3) organisational Rechtsstaat safeguards; (4) rights-oriented Rechtsstaat safeguards; and (5) other substantive Rechtsstaat safeguards.22 In what follows we will discuss only the most important ones. The formal dimension of the Rechtsstaat principle stems from explicit provisions of the Constitution as well as from the general Rechtsstaat clauses in Articles 1 and 2 of the Constitution and Articles 1–4 of the Charter. The formal Rechtsstaat includes basically all eight of Fuller’s formal-rule-of-law principles,23 but it goes well beyond that. More specifically, the Constitutional Court held that legal rules must be general, publicly promulgated, prospective, sufficiently clear and intelligible, free of inconsistencies, relatively stable, non-arbitrary and thus obeyable, and administered in a way that does not diverge wildly from their obvious or apparent meaning. Of these eight principles the Constitutional Court is particularly vigilant in guarding legal certainty and the prohibition of retroactivity. In addition to these well-established formal-rule-of-law principles, the Constitutional Court’s conception of Rechtsstaat also encompasses a general principle of legality which contains several safeguards: state authority may be asserted only in the cases and within the limits provided for by law and in the manner prescribed by law; everyone 21 Judgment of the Constitutional Court of 21 December 1993, Pl ÚS 19/93, Lawlessness of the Communist Regime. 22 We build here on the categorisation provided by Tomoszek (Maxim Tomoszek, Podstatné náležitosti demokratického právního státu (Prague: Leges, 2015), 72–80), but we categorise the Rechtsstaat principles slightly differently for an international audience. 23 Lon L Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1969), 33–94.

The Rechtsstaat Principle  67 may act in a way that is not prohibited by law, nobody may be compelled to do what is not imposed on them by statutory law, and only statutory law may define what constitutes a crime and the penalties that may be imposed for committing it; and the prohibition of the excessive or superfluous application of otherwise rationally and non-arbitrarily selected instruments of regulation. In addition, the Constitutional Court spelt out several procedural Rechtsstaat safeguards that roughly correspond to what Jeremy Waldron refers to as the procedural characteristics of the rule of law.24 These safeguards develop the guarantees in the Constitution and Charter and include in particular the right to the effective judicial protection of fundamental rights and freedoms, the right to access a court, the right to a lawful judge, the right to a fair trial before an independent court, the presumption of innocence, and to reasonable length of the judicial proceedings. This means that the Constitutional Court considers these rights to be procedural guarantees that have considerable repercussions for the rule of law. As mentioned above, the Czech concept of Rechtsstaat requires a certain quality from the state, and thus it also encompasses several safeguards that belong to the framework-of-government part of the Constitution. These organisational Rechtsstaat safeguards include the separation of powers, territorial self-government, the democratic nature of the legislative process, an independent judiciary, the democratic accountability of political decision-making and free competition of political parties, the enforceability of rights, and maintaining an effective system for the investigation and prosecution of crime.25 Some authors argue that the organisational dimension of the Rechtsstaat includes even the existence of a specialised ‘Kelsenian’ Constitutional Court, respect for the international obligations of the Czech Republic, and the incorporation of all international treaties ratified by the Parliament into domestic law with priority application over domestic laws.26 The remaining two dimensions of the Rechtsstaat principle concern, with a certain degree of simplification, what is in common law often referred to as ‘substantive rule of law’. We decided to divide these

24 Jeremy Waldron, ‘The rule of law and the importance of procedure’ in James E Fleming (ed), Nomos L: Getting to the Rule of Law (New York: New York University Press, 2011), 3–31. 25 Judgment of the Constitutional Court of 28 June 2011, Pl ÚS 17/10, § 62. 26 See Vojtěch Šimíček, ‘Komentář k čl. 1’, in Lenka Bahýľová, Jan Filip, Pavel Molek et al (eds), Ústava České republiky: Komentář (Prague: Linde, 2010), 28.

68  Constitutional Principles substantive Rechtsstaat safeguards into two categories: substantive Rechtsstaat safeguards aimed at protecting fundamental rights (rightsoriented substantive Rechtsstaat safeguards) and other substantive Rechtsstaat safeguards that reflect moral and specific Czech constitutional values. Rights-oriented Rechtsstaat safeguards include the state’s respect for fundamental rights and freedoms, the protection of individual autonomy, equality and the prohibition of discrimination, the prohibition of arbitrariness, and the principle of proportionality. Other substantive Rechtsstaat safeguards include value discontinuity with the communist regime, human dignity, liberty and fairness. These very broad substantive values serve as a potential safety net that the Constitutional Court can rely on in addressing apparent injustice that cannot be remedied by a more specific Rechtsstaat component. In sum, the Rechtsstaat principle is a crucial principle of Czech constitutionalism. It not only encompasses a broad set of formal, procedural and organisational principles, but also envisages a state based on substantive values such as fundamental rights and fairness. Therefore, it has an undeniable moral dimension.27 Its breadth has both advantages and drawbacks. On the one hand, it is a flexible concept that can serve as a trump card that the Constitutional Court can use if a clear violation of a more specific provision is not apparent. On the other hand, it may be so broad that it loses analytical clarity and separate meaning. If the rule of law encompasses almost everything in the Constitution, then it may well be nothing. Therefore, it would be better if the Constitutional Court uses it more sparingly in future and prevents the inflation of the uses of this concept in its case law. III.  PRINCIPLE OF THE SEPARATION OF POWERS

Another cornerstone of the Czech Constitution is the principle of the separation of powers, which is closely related to the Rechtsstaat principle. Some scholars even claim that separation of powers is the ‘jolly joker’ of Czech constitutionalism.28 The principle of horizontal separation of powers stems from Article 2(1) of the Czech Constitution, which stipulates that state authority emanates from the people and that they 27 See Judgment of the Constitutional Court of 19 January 2017, I ÚS 3308/16. 28 Jan Grinc, ‘Rozhodování sporů o rozsah kompetencí jako žolík čl. 87 Ústavy’, Jurisprudence 23, no 1 (2014): 5–15.

Principle of the Separation of Powers  69 exercise it through legislative, executive and judicial bodies. The principle of vertical separation of powers is enshrined in Article  8 of the Czech Constitution which guarantees the right of self-governing territorial units to self-government. The key organ that decides on most separation of powers issues is the Constitutional Court.29 It decides on both intra-branch and interbranch competence conflicts. It conceives its power to decide on the competence disputes broadly so as to cover not only (1) disputes about the competence to issue decisions (classical competence disputes), but also (2) disputes about taking other measures and (3) the so-called ‘joint competence’ disputes.30 The classical competence conflicts include both positive and negative conflicts about the competence to hand down a decision. The Constitutional Court also held, building on the German doctrine, that conflicts of competence proceedings can be initiated not only by an organ in proper sense (such as the Supreme Court) also by a part of the constitutional organ (Teilorgan, such as the President of the Supreme Court) which significantly broadened the standing in this type of proceedings before the Constitutional Court. The disputes about taking other measures vary from territorial disputes between municipalities31 to negative competence conflicts regarding the provision of first aid.32 The Constitutional Court also decides on vertical separation of powers disputes between the central organs and the territorial self-governing units.33 According to the Constitutional Court, the principle of separation of powers is part of the concept of the rule of law. This applies to both horizontal and vertical separation of powers. As the basic tenets of the rule of law are protected by the Czech Eternity Clause, the key components of the horizontal separation of powers as well as the basic features of territorial self-government are also entrenched in the Eternity Clause. 29 For the sake of brevity we do not deal with the potential delegation of competence to the Supreme Administrative Court to decide some separation of powers issues (as envisaged by Article 87(3) of the Czech Constitution) and peculiar jurisdictional disputes between the Supreme Court and the Supreme Administrative Court under Law no 131/2002 Coll on Deciding Selected Competence Disputes. 30 For further details see Jan Filip, Pavel Holländer and Vojtěch Šimíček (eds), Zákon o Ústavním soudu: Komentář, 2nd edn (Prague: CH Beck, 2007), 765 et seq; and Grinc, ‘Rozhodování sporů o rozsah kompetencí’. 31 See Judgment of the Constitutional Court of 3 June 2008, Pl ÚS 18/08. 32 See the Judgment of the Constitutional Court of 27 September 2007, Pl ÚS 5/04 Emergency Health Care. 33 On territorial self-governance see below Chapter 6.

70  Constitutional Principles IV.  PRINCIPLE OF SOVEREIGNTY

Czechia came into being as a sovereign state on 1 January 1993. The emphasis on sovereignty and self-rule in the first years of independent Czechia reflected the negative perception of decades when Czechs’ sovereignty was limited, especially during Habsburg rule, during Hitler’s Protectorate of Bohemia and Moravia, and as a result of the crushing of the 1968 Prague Spring movement which was followed by the occupation of Czechoslovakia led by Soviet Union troops. However, this ethos of self-rule still prevails today and sovereignty is a regular topic of political and legal discourse, especially regarding the transfer of powers to the EU. Czech doctrine traditionally distinguishes two aspects of the principle of sovereignty – internal and external sovereignty. Internal sovereignty means that Czechia has complete and exclusive control of all the people and property within her territory and that the Czech people are the only ultimate source of state power on Czech territory. External sovereignty then guarantees the independence of Czechia with regard to other states and allows it to enter freely into relations with other states and other subjects of international law. Both internal and external sovereignty are subject to several limits though. On the internal level, even the people cannot, at least under the framework of the 1993 Constitution, change the essential requirements of a democratic state governed by the rule of law that are protected by the Eternity Clause.34 At the same time, Czech citizens enjoy the right of resistance to anyone who tries to abolish the democratic order based on the protection of fundamental rights, if other effective means of protecting the current order are unavailable.35 The external sovereignty of Czechia is also not unlimited. Czechia pledged to fulfil its international law obligations36 and gave application priority to international treaties ratified with the consent of the Parliament over statutory law.37 However, by far the most significant change to external sovereignty has been Czechia’s accession to the EU in 2004 and the resulting transfer of a part of state power to this supranational organisation. The conditions and limits of this transfer of state power have been hotly debated on the Czech political and legal scene. Soon after

34 See

Article 9 of the Constitution. Article 23 of the Constitution. 36 Article 1(2) of the Constitution. 37 Article 10 of the Constitution. 35 See

Principle of the Unitary State  71 accession to the EU, the Constitutional Court had to decide on these vexing issues, especially during the ratification of the Lisbon Treaty. The Constitutional Court generally accepts the primacy of EU law stipulated by the European Court of Justice since Van Gend en Loos,38 but it does not do so unconditionally.39 The petitioners in the Lisbon I and Lisbon II wanted to expand these conditions and used the concept of sovereignty as a shield against the EU law. However, Constitutional Court in the Lisbon I and Lisbon II judgments held that the concept of sovereignty can no longer be understood in a traditional sense as a rigid legal concept but must be seen also as a concept with a practical, moral and existential dimension. Therefore, the Constitutional Court does not view European integration and the strengthening of democratic processes at the EU level as a prima facie challenge to democracy at the national level. Instead, the existence of elements of representative democracy at the Union level does not rule out implementation of those same elements presupposed by the constitutional order of the Czech Republic, nor does it mean exceeding the limits of the transfer of powers established by the Czech Constitution. At the same time, the Constitutional Court reiterated that in the event of a clear conflict between the Czech Constitution and EU law that could not be overcome by any reasonable interpretation, the constitutional order of the Czech Republic, in particular its substantive core, must take precedence. This means that at least the Eternity Clause is absolutely protected from any changes stemming from EU obligations. Thus, for the Constitutional Court, at least rhetorically, the obligation to respect the primacy of EU law has never been considered an unconditional one. V.  PRINCIPLE OF THE UNITARY STATE

Inter-war Czechoslovakia was a unitary state, despite covering the territories of Bohemia, Moravia, Slovakia and Carpathian Ruthenia and being a multi-ethnic state including Czechs, Germans, Slovaks, Hungarians, Ruthenians, Jews and Poles. This solution had a pragmatic pedigree, as in 1918 Germans outnumbered Slovaks and were the second largest ethnic group within Czechoslovakia. Czech political leaders, due to the geopolitical situation, were unwilling to grant the German 38 Court of Justice of the European Communities, Case C-26/62, van Gend en Loos (1963), ECLI:EU:C:1963:1. 39 See Chapter 2, Section IV.

72  Constitutional Principles minority, concentrated close to the strategically important Czechoslovak border with Germany, greater autonomy. As a result, they came up with the project of the Czechoslovak nation, counted Czechs and Slovaks as members of the same ethnic group, and maintained a unitary state. This solution failed to find support among both Germans and Slovaks and culminated in the annexation of the Sudetenland by Hitler’s army in 1938 and the creation of the independent Slovak state under the tutelage of Nazi Germany in 1939. Only in 1945 did Czechoslovakia return to its traditional borders, this time without Carpathian Ruthenia. Czechoslovakia was forced by the Soviet Union to cede Carpathian Ruthenia and became the only European country that was a part of the winning coalition of Allied Powers and yet lost territory after World War II. Many Jews died in the concentration camps and Czechoslovak leaders expelled over 2 million Germans from Czechoslovakia in 1945–1946. The numbers of citizens belonging to other ethnic groups within Czechoslovakia thus shrank significantly. The only group that still strove for federalisation were the Slovaks. Under the ‘theory of continuity’ advocated by President Edvard Beneš, the institutional framework of the First Czechoslovak Republic was restored and the existence of the Slovak state was retroactively nullified. This meant a return to the inter-war unitary arrangement and the fiction of the Czechoslovak nation. Slovaks’ longing for greater autonomy did not, however, go away. The Slovaks eventually achieved the federalisation of Czechoslovakia in 1969 and, after a bitter ‘hyphen-war’40 in the early 1990s, chose to leave Czechoslovakia. As most of the Hungarian minority lived in Slovakia, after the dissolution of Czechoslovakia the newly created Czechia became a rather small and ethnically homogenous country. Since 1993 there have been very few efforts and limited motivation to change the unitary state arrangement. In the early 1990s a small party emerged in Moravia that advocated the federalisation of Czechia and attempted to revive the Medieval division of the Czech lands into Bohemia, Moravia and Silesia. However, this programme did not find support among the people and no one has since evoked a similar idea. The firm embeddedness of the unitary state principle also reflects the specific position of Prague in Czechia. It contains 12 per cent of Czech citizens and is bigger than the next eight largest cities added together. Naturally, Czechia was run from Prague and it took a long time to 40 See Hugh Agnew, The Czechs and the Lands of the Bohemian Crown (Hoover Institution Press, 2004), 300–1.

Protection of Fundamental Rights  73 decentralise the exercise of power and create meaningful territorial selfgovernance. We discuss this development in more detail in Chapter 6. VI.  PROTECTION OF FUNDAMENTAL RIGHTS

Fundamental rights and their protection hold a special place in the Czech constitutional system. Even Charter 77, the most important dissident project of the communist era,41 was a project concerning human rights, challenging the communist regime’s failure to deliver on its promises after the ratification of the International Covenant on Civil and Political Rights (ICCPR). Hence, despite the aforementioned s­cepticism of some important political figures, such as Václav Klaus, the new Czech post-1989 and post-1993 constitutional project placed significant emphasis on the effective protection of human rights. There are several important questions in this regard. First, the Charter is a very ambitious document that contains virtually all human rights protected by the European Convention on Human Rights (ECHR) as well as an extensive list of social, economic and cultural rights. Secondly, the Constitution has created a robust system of fundamental rights protection. Its Article 4 stipulates that ‘[f]undamental rights and basic freedoms shall enjoy the protection of judicial bodies’. Apart from that, a very strong Constitutional Court has been established with an extensive set of powers, including the power to review individual decisions in the constitutional complaints procedure.42 The Constitutional Court soon after its creation adopted important fundamental rights doctrines that have created a doctrinal framework of fundamental rights protection. Three of the most influential Justices of the Constitutional Court in the 1990s and 2000s, Vladimír Klokočka, Pavel Holländer and Eliška Wagnerová, were particularly keen on searching for inspiration in Germany. As a result, there are more than 60  references to the jurisprudence of the Bundesverfassungsgericht (BVerfG) in the Constitutional Court’s case law.43 Moreover, the significance of the BVerfG’s case law is greater than the mere number 41 See Jonathan Bolton, Worlds of Dissent: Charter 77, The Plastic People of the Universe, and Czech Culture under Communism (Cambridge, MA: Harvard University Press, 2012). 42 See also Chapter 7, Section III for further details. 43 See Jana Ondřejková, Kristina Blažková and Jan Chmel, ‘The Use of Foreign Legal Materials by the Constitutional Court of the Czech Republic’, in Giuseppe Franco Ferrari (ed), Judicial Cosmopolitanism: The Use of Foreign Law in Contemporary Constitutional Systems (Leiden and Boston, MA: Brill, 2019), 599ff.

74  Constitutional Principles of references suggests, as it shaped key constitutional doctrines in the early phases of the Constitutional Court’s existence. The Constitutional Court has transplanted, among other things, the German proportionality test,44 the doctrine of ‘fundamental rights as objective values’, and the concept of Drittwirkung.45 Another layer of Czech human rights constitutionalism concerns the importance of international human rights law. The Constitutional Court has been considered a champion in the application of the ECHR in Czechia and relied heavily on the case law of the European Court of Human Rights (ECtHR) when interpreting the Constitution and the Charter.46 It quotes the Strasbourg jurisprudence on a regular basis and in an extensive manner.47 This trend is not surprising since the catalogue of human rights adopted in Czechia was to a significant degree influenced by the ECHR. In fact, several definitions of human rights in the Czech Charter mirror almost word for word their equivalents in the ECHR.48 In general, the case law of the Constitutional Court has been very ‘ECHR-friendly’. It has been heavily influenced by the ECtHR’s jurisprudence in areas such as freedom of speech, the right to privacy49 and positive obligations under Articles 2, 3 and 4 ECHR.50 It can be argued that the Constitutional Court acts as the ECtHR’s ally by helping to enforce the ECtHR jurisprudence domestically, especially vis-à-vis the ordinary courts and the Parliament.51 We discuss these issues in more detail in Chapter 8. Due to its ‘ECHR-friendly’ approach, the Constitutional Court has also carefully avoided or brushed aside any potential conflict between

44 See Judgment of the Constitutional Court of 12 October 1994, Pl ÚS 4/94. 45 Judgment of the Constitutional Court of 14 July 2004, I ÚS 185/04. 46 See eg Michal Bobek and David Kosař, ‘The Application of European Union Law and the Law of the European Convention of Human Rights in the Czech Republic and Slovakia: An Overview’, in Giuseppe Martinico and Oreste Pollicino (eds), National Judges and Supranational laws. A Comparative Overview on the National Treatment of EU Law and the ECHR (Groningen: Europa Law Publishing, 2010), 157–89. 47 David Kosař et al, Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance (Abingdon: Routledge, 2020). 48 See David Kosař, ‘Conflicts between Fundamental Rights in the Jurisprudence of the Czech Constitutional Court’, in Eva Brems (ed), Conflicts Between Fundamental Rights (Oxford: Intersentia, 2008), 349. 49 Judgment of the Constitutional Court of 15 March 2005, I ÚS 367/03. 50 See eg Judgment of the Constitutional Court of 2 March 2015, I ÚS 1565/14. 51 See David Kosař and Jan Petrov, ‘The Architecture of the Strasbourg System of Human Rights: The Crucial Role of the Domestic Level and the Constitutional Courts in Particular’, Heidelberg Journal of International Law: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 77, no 3 (2017): 585–621.

Protection of Fundamental Rights  75 the Czech constitutional laws and the ECHR. Instead, it has tried to read the ECHR into the Czech constitutional order and, if necessary, it has stretched the human rights provisions in the Czech Charter of Fundamental Rights to their limits. As a result, the Constitutional Court has sometimes quashed the decisions of the ordinary courts by using highly contestable conclusions based on a very expansive reading of the ECHR and the ECtHR’s case law. For instance, the Constitutional Court52 literally ‘created’ the right to monetary relief for non-pecuniary injuries.53 This is not an uncommon move for a European constitutional court.54 However, the Czech Constitutional Court did not rely on the Czech Charter of Fundamental Rights at all. Instead, it arrived at this conclusion solely on the basis of an interpretation of Article 5(5) ECHR55 and argued that the notion of ‘an enforceable right to compensation’ (droit à réparation) in Article 5(5) ECHR has an autonomous meaning which entails the right to compensation for both pecuniary and nonpecuniary injury. Unfortunately, the ECtHR has, to our knowledge, never held that this is so. The Constitutional Court has also addressed the relationship between the ECHR and other, non-human rights, international treaties. For instance, when it faced a conflict between the obligations stemming from the ECHR on the one hand and the European Convention on Extradition on the other, it relied on its earlier Euro Amendment judgment56 and held that the ECHR must prevail as it is a human rights treaty.57 In sum, the Constitutional Court again confirmed its generous ‘pro-ECHR stance’. However, the Court has not yet had to deal with more difficult cases such as conflicts between the ECHR and UN Security Council Resolutions. Under the logic of the Court’s reasoning, the ECHR should prevail over any ‘non-human rights treaty’, which is not only a problematic position 52 Available in English at: https://www.usoud.cz/en/decisions/2006-07-13-i-us-85-04non-pecuniary-damage-compensation. 53 Judgment of the Constitutional Court of 13 July 2006, I ÚS 85/04. For a detailed discussion of this judgment see Michal Bobek, ‘Ústavní soud: Má srovnávací argumentace přednost před českým zákonodárcem, judikaturou i doktrínou anebo je císař nahý?’, Soudní rozhledy 12, no 11 (2006): 415–22. 54 See eg the famous Princess Soraya case of the German Federal Constitutional Court (34 BverfGE 269, 1973). Cf Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, NC: Duke University Press, 1997), 124–8. 55 And with the use of comparative argument ‘read into’ Article 5(5) ECHR. 56 Judgment of the Constitutional Court of 25 June 2002, Pl ÚS 36/01, Euro Amendment. 57 Judgment of the Constitutional Court of 15 April 2003, I ÚS 752/02. For further details see Eliška Wagnerová, ‘The Direct Applicability of Human Rights Treaties’ in The Status of International Treaties on Human Rights, Venice Commission (Strasbourg: Council of Europe Publishing, 2006), 117.

76  Constitutional Principles vis-à-vis Article 103 of the UN Charter, but also a more generous reading of the ECHR than the one provided by the ECtHR itself.58 VII.  THE IMPLICIT WELFARE STATE PRINCIPLE

The Czech Constitution does not contain an explicit reference to the welfare state principle or to any social right. This is partly due to the quick dissolution of Czechoslovakia and a deep disagreement among the then political elites on fundamental rights.59 However, the welfare state principle is an important implicit principle of Czech constitutionalism that has roots in the Czech Charter of Fundamental Rights and Freedoms and the principle of human dignity as well as in Czechia’s modern history. The Czech Charter of Fundamental Rights and Freedoms, which has federal pedigree, contains a powerful set of social rights. It guarantees the right to free health care; the right to social security and social assistance for those in need; the right to work, as well as to appropriate material security for those citizens who are unable through no fault of theirs to exercise that right; the right to free primary and secondary education and also, depending on a citizen’s situation, education at the university level. These rights are subject to limitations set by law, but the Constitutional Court has made clear that any interference with the core of social rights must pass the standard proportionality test, while other limitations are subject to the less stringent rational basis test.60 Based on these tests, the Constitutional Court quashed several austerity measures adopted by the Czech Government in the wake of the 2008 financial crisis, such as the introduction of medical fees and the reduction of sickness benefits. The welfare state principle has its underpinning also in human dignity, which served as a key value for the drafters of the Czech Constitution61 and became a guiding principle in interpreting the Czech Charter of Fundamental Rights and Freedoms. Human dignity, together with liberty and equality, is one of the three foundational values listed in Article 1 of the Charter. Given the explicitly guaranteed broad set of social rights, 58 See Behrami v France (App no 71412/01), and Saramati v France, Germany and Norway (App no 78166/01), admissibility decisions of the ECtHR (GC) of 2 May 2007. 59 See also Chapter 1, Section I. 60 See Chapter 8, Sections IV and V. 61 See the Preamble to the Czech Constitution. For a detailed discussion of the position of human dignity, see Chapter 8, Section III.

Conclusion  77 the Constitutional Court, unlike its German counterpart, did not have to derive specific social rights from the general principle of human dignity, but it has relied heavily on human dignity when interpreting social rights. Finally, Czechs have always striven for equality since Czechoslovakia’s independence. Inter-war Czechoslovakia immediately prohibited the use of noble titles, and the financial crisis in the 1920s and 1930s further deepened the sense of egalitarianism. This resulted in broad support for communism well before World War II. The inter-war Czechoslovak Communist Party actually became one of the strongest in the world and regularly held dozens of seats in the inter-war Parliament. The Communist Party even increased its popular support after World War II. Unlike in Slovakia, communists won the first (and for a long time last) free elections in 1946. Egalitarianism and economic equality, coupled with the strong dependence of citizens on the state, then flourished during the next four decades. This historical trajectory paved the way for the deep embeddedness of the welfare state principle in the Czech constitutionalism62 and to a particular understanding of principle of equality and anti-discrimination law, to which we return in Chapter 8. VIII. CONCLUSION

Czechia’s constitutional Gestalt is not based on any grand ideology. The Czechs are one of the most atheist nations worldwide and other grand ideologies were largely discarded by the four decades of Communist rule. The unifying ethos of the Czech state can thus be found in the secular, humanistic and egalitarian tradition, which is coupled with a strong sense of freedom and equality. On the institutional level, the core of this ethos is embedded in the Eternity Clause, which makes the essential elements of the democracy and the Rechtsstaat unamendable. The Eternity Clause is further supported by adjacent principles, namely the principle of sovereignty, the unitary state principle, the principle of protection of fundamental rights, separation of powers, and the welfare state principle. On the popular level, the ethos lives in a longing for self-rule, distrust in the state and authority more generally, and a right-to-be-left-alone mentality. In the next four chapters we will focus on the institutional level and explain the working of the three branches of Czech government

62 Jan Wintr, Principy českého ústavního práva, 4th edn (Prague: Aleš Čeněk, 2018), 180–90. See also Chapter 8, Section V.

78  Constitutional Principles and territorial self-governance. We will revisit the popular level of Czech constitutionalism in the last chapter. FURTHER READING Grinc, Jan. ‘Rozhodování sporů o rozsah kompetencí jako žolík čl. 87 Ústavy’. Jurisprudence 23, no 1 (2014): 5–15. Kosař, David, Jiří Baroš, and Pavel Dufek. ‘The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism’. European Constitutional Law Review 15, no 3 (2019): 427–61. Kosař, David, Jan Petrov, Katarína Šipulová, Hubert Smekal, Ladislav Vyhnánek, and Jozef Janovský. Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance. Abingdon: Routledge, 2020. Kysela, Jan. Dělba moci v kontextu věčného hledání dobré vlády. Prague: Leges, 2020. Mareš, Miroslav. ‘Czech Militant Democracy in Action Dissolution of the Workers’ Party and the Wider Context of This Act’. East European Politics and Societies: and Cultures 26, no 1 (2012): 33–55. Preuss, Ondřej. ‘Demokratický právní stát tesaný do pískovce’. Časopis pro právní vědu a praxi 24, no. 3 (2016): 365–76. Tomoszek, Maxim. Podstatné náležitosti demokratického právního státu. Prague: Leges, 2015. Wintr, Jan. Principy českého ústavního práva, 4th edn. Prague: Aleš Čeněk, 2018.

4 The Czech Parliament Bicameralism – Chamber of Deputies – Senate – Primary Legislation – Constitutional Amendments – International Treaties – Super-statutes – Legislative Process – Governmental Responsibility – Legislative Riders – Constitutional Amendments – Elections – Political Parties – Political Instability – Corruption and Lobbyism – Parliamentary Immunity

A

s was the case with many other features of the 1993 Czech Constitution, the structure of the Czech Parliament was heavily inspired by the model used in the 1920 Czechoslovak Constitution. In retrospect, it would even seem that the structure of the Parliament was uncontroversial. After all, the 1920 role model was a bicameral parliament consisting of the Chamber of Deputies (the lower chamber) and the Senate (the upper chamber). Even the names of the chambers were copied and pasted – word for word, letter for letter – from the 1920 Czechoslovak Constitution into the 1993 Constitution. The 1993 Constitution thus established a bicameral Parliament, the lower chamber being the Chamber of Deputies (hereinafter also ‘the Chamber’) consisting of 200 members (elected for a four-year term) and the upper chamber being the Senate consisting of 81 members (elected for a six-year term); both chambers are further internally structured in committees. But the truth is that the relationship between the two chambers and even the very existence of the Senate were extremely contentious issues both during the drafting of the Constitution and after it was adopted.1 Václav Klaus, the chairman of the strongest political party, then Prime Minister and future President, was among the most vociferous opponents of the very existence of an upper chamber.2 The prospective 1 See also Chapter 2, Section I. 2 Veronika Svoboda, ‘Vznik Ústavy České republiky’ (Doctoral dissertation, Charles University, Prague, 2018), 70.

80  The Czech Parliament role of the Senate was arguably even endangered by the fact that some of the traditional justifications for having an upper chamber (such as the federal structure of the state or traditional class division in society) were absent in the Czech case. Still, the opponents of the Senate were eventually marginalised during the drafting process and the Senate found its way into the constitutional text. However, the Senate’s position remained rather fragile, as would soon become evident. I.  BASIC STRUCTURE: THE CHAMBER OF DEPUTIES AND THE SENATE

With the existence of the Senate settled (or so it was thought), another issue was the concrete form of bicameralism to be chosen. The final form was a blend of political compromises, historical lessons and comparative inspirations. The most important historical lesson was arguably the importance of the electoral system with regard to the two chambers. Under the 1920 Czechoslovak Constitution, the electoral system for both chambers was based on proportional representation with only minimal disproportionate effects. These symmetrical electoral systems were considered problematic in retrospect,3 as their existence significantly weakened the practical ability of the upper chamber to function as a vetoing chamber. As a result, the new Constitution allowed the Senate to provide a real counterbalance to the Chamber by choosing two very different electoral systems for the two chambers. While the Chamber of Deputies’ electoral system was still based on ‘proportional representation’, a majority system was chosen for the Senate (Article  18 of the Constitution).4 This system usually succeeds in creating politically asymmetrical compositions for the two chambers and thus introducing an element of political competition between them. The most visible comparative influence concerns the Senate. The Senators’ terms of office are – following the US and the French ­examples5 – staggered so that one-third of the seats (27) come up for election every two years. In retrospect, this has proven to be an important stabilising factor, especially taking into account the turmoil in 3 Ibid, 65. 4 For further details see Section IV. 5 Jan Filip, ‘Zapomenuté inspirace Ústavy ČR: k 10. výročí přijetí Ústavy ČR’, Časopis pro právní vědu a praxi 10, no 4 (2002): 295–302, 300–1.

Basic Structure: The Chamber of Deputies and the Senate  81 the political party system and its impact on the composition of the Chamber.6 Even though the Constitution entered into force on 1 January 1993, the first session of the Senate did not take place until 18 December 1996. This almost four-year gap was caused by a combination of political and legal factors. The roots of this situation are closely embedded in the dissolution of the Czechoslovak federation and the fate of the members of the federal parliament(s). The members of the first Chamber of Deputies (in the 1992–1996 term) were not in fact elected pursuant to the ordinary constitutional rules; the Czech National Council (ie the Czech national part of the former federal parliamentary structure), which was elected under federal rules in 1992, was simply transformed into the Chamber of Deputies (Article 106(1) of the Constitution). Such a simple solution could not be provided for the Senate, as there was no corresponding institution which could be transformed into it. It was briefly considered (in 1992) that some members of the Federal Assembly (ie the federal branch of the Czechoslovak parliamentary system) could become members of the Senate, but this solution was rejected for a number of political reasons.7 As a compromise, Article 106(2) of the Constitution provided that the Provisional Senate would be established via a special constitutional act and that that body would assume the competences of the Senate until regular elections to the Senate were held. However, the Provisional Senate remained a permanently unfulfilled promise of the Constitution. The Chamber of Deputies never adopted the proposed constitutional act and it exercised all the powers of the Senate (including the 1993 confirmation of Justices of the first Constitutional Court) itself until the end of 1996. Thus, practically speaking, it was only in early 1997 that the constitutional promise of the bicameral Parliament was finally fulfilled. Yet another issue was how (a)symmetrical the emerging bicameral Parliament really was. It has already been noted that the two chambers were designed asymmetrically as regards their electoral systems and composition. At the same time, there is a significant difference between the undissolvable Senate and the Chamber of Deputies, which may be dissolved by the President under certain conditions (Article 35 of the Constitution). 6 See also Section V. 7 Jan Kysela, Senát Parlamentu České republiky v historickém a mezinárodním kontextu (Prague: Parlament České republiky, Kancelář Senátu, 2000), 105–7.

82  The Czech Parliament However, the most important difference between the two  chambers of the Czech Parliament concerns their competences. It is here that the asymmetrical nature of Czech bicameralism shows the most. II.  COMPETENCES OF THE PARLIAMENT AND ITS CHAMBERS

The two most important competences of the Parliament are without doubt (1) its legislative competence and (2) the oversight of the Government, even though the second competence is entrusted specifically to the Chamber of Deputies. Hence, in the following text we first deal with the structure of the legislative process. Subsequently, we turn our attention to the relationship between the Chamber of Deputies and the Government. Finally, we provide a concise overview of other competences of the Parliament. The Parliament is an exclusive legislative and constitution-making body in Czechia. This is reflected in Article  15(1) of the Constitution which reads: ‘The legislative power of the Czech Republic is vested in the Parliament.’ While other institutions, such as the Government, the President and Higher Self-Governing Units may all take part in the legislative process, the Parliament is a key actor and it cannot be circumvented in any way. Most importantly, neither the Government nor the President can issue acts that would be functionally equivalent to statutory law, such as executive orders or decrees.8 The legislative power is shared by both chambers of the Parliament, but their relative strength depends on the type of legislative act in question. The legislative initiative is the first stage of the process. Pursuant to Article  41(2) of the Constitution, Bills may be introduced by (1) a single Deputy, (2) a group of Deputies, (3) the Senate as a whole (upon a simple majority resolution), (4) the Government, and (5) an assembly of a Higher Self-Governing Unit. There is thus no popular legislative initiative. Practically speaking, the most important bills are proposed by the Government. The rate differs in different terms but it generally ranges between 55 and 65 per cent. Groups of Deputies rank second (around 25–35 per cent). Proposals by single Deputies or by the Senate are quite rare (around 5 per cent in both cases), while proposals of Higher Self-Governing Units are rather exceptional.9 8 For further details see Chapter 5. 9 See Eva Kostelecká, ‘Parlamentní opozice v České republice a zákonodárná iniciativa’, (Master thesis, Masaryk Univerity, Faculty of Social Science, Brno, 2016).

Competences of the Parliament and its Chambers  83 Upon a legislative initiative, a bill is introduced in the Chamber of Deputies. The President of the Chamber of Deputies forwards the bill to the Organizational Committee in order for it to be scheduled for a particular session. Before the scheduling, however, the bill must be circulated amongst the Deputies and the Government must be given an opportunity to express its views on the bill, unless it proposed the bill itself. The legislative process within the Chamber of Deputies has three basic stages which are called ‘readings’. In the first reading, the bill is introduced by its author and a rapporteur appointed by the President of the Chamber or by the Organizational Committee. Afterwards, a so-called ‘general debate’ follows. Occasionally, a bill may be passed in the first reading in an accelerated legislative procedure. However, such instances are rare and may be stopped by a motion of 50 Deputies or by two Deputies’ Clubs (Deputies’ Clubs being organised groups of Deputies, usually elected on the ticket of the same political party). Under normal circumstances, the bill is either rejected or forwarded to the second reading. Between the first and second readings, the bill is advanced to relevant committees, with one of these committees being designated as a ‘guarantor committee’. There is no set number of committees in the Chamber of Deputies. The Rules of Procedure (Law no 90/1995 Coll) list seven mandatory committees: (1) Mandates and Immunities Committee, (2) Petition Committee, (3) Budget Committee, (4) Control Committee, (5) Organizational Committee, (6) Electoral Committee and (7) European Affairs Committee. However, in practice there are usually many more. Typically, at least a Constitutional Committee, International Committee, Agricultural Committee, Health Committee, Security Committee, and Defence Committee are established. As a rule, committees have 60 days to consider the bill. Afterwards, with recommendations from the relevant committees, the bill enters the second reading. The debate in the second reading is divided in two stages: the general debate and the full debate (which takes place only if the bill is returned to the guarantor committee after the general debate). In the full debate, Deputies or groups of Deputies can propose amendments. At times, these amendments have been abused to introduce a new and unrelated issue in the bill.10 The bill and the amendments are then advanced to the guarantor committee, which issues final recommendations for the third reading. In the third reading, the Deputies vote on the final form of the bill. The bill can be rejected, adopted with amendment(s) or adopted in its

10 See

below Section III and the discussion of legislative riders.

84  The Czech Parliament original form. No substantive amendments may be proposed in the third reading. Only amendments concerning grammatical, legislative-technical or print errors are permissible. In general, it is quite rare for bills to be passed in their original form, without any amendments.11 If the bill is passed by the Chamber of Deputies, it is then forwarded to the Senate. On paper as well as in practice, the Senate is designed as the weaker chamber. It can adopt bills passed from the Chamber of Deputies, reject them, return them to the Chamber of Deputies with proposed amendments, or declare its intention not to deal with them. If the Senate rejects a bill or returns it with proposed amendments, the original bill can still be adopted by the Chamber by an absolute majority (101 votes), which makes the Senate not much of an obstacle for a politically strong majority in the Chamber of Deputies (which will usually be politically aligned with a ruling Government). However, given the notorious political weakness of governments in Czech constitutional history,12 the Senate has often served as a functioning counterbalance to the Chamber of Deputies and the Governments. If the Senate passes the bill or if it is overruled by the Chamber of Deputies, the bill is forwarded to the President who can either sign or veto the bill. If the President vetoes the bill, the chamber of Deputies can, again, overrule it by an absolute majority of 101 votes. The President, however, cannot veto constitutional bills. While the Senate can be overruled by the Chamber’s majority vote in the case of normal legislative acts, there are special (quasi-)legislative acts the adoption of which requires the consent of the Senate. First, the Senate enjoys an equal position with regard to the Chamber when it comes to constitutional acts. Given the usually asymmetrical political composition of the Senate and the Chamber of Deputies, the requirement for the Senate’s consent for the adoption of constitutional acts significantly adds to the Czech Constitution’s rigidity. Secondly, Article 40 of the Constitution also requires the consent of the Senate with regard to super-statutes.13 Arguably the most important category of super-statutes is electoral laws. For a long time, it was not completely certain which legislative acts qualified as ‘electoral laws’ and thus had to be also adopted by the Senate. A narrow interpretation

11 Lukáš Linek and Zdenka Mansfeldová, ‘Legislativní proces a činnost parlamentu’, in Český parlament ve druhé dekádě demokratického vývoje, ed. Lukáš Linek and Zdenka Mansfeldová (Prague: Sociologický ústav AV ČR, 2009). 12 For further details see Chapter 5. 13 See Chapter 2, Section IV for further details.

Competences of the Parliament and its Chambers  85 would suggest that Article 40 concerns only parliamentary elections, and this interpretation was in fact offered by the Chamber of Deputies in Constitutional Court proceedings concerning Conflict of Interest I.14 The Court opted for a broader interpretation of the concept and held that it included elections to assemblies of self-governing units as well as to the European Parliament. Based on the Court’s interpretation, rules regulating presidential elections would also qualify as electoral law under Article 40 of the Constitution, even though direct presidential elections were not introduced until 2012. Article 40 of the Constitution requires the consent of the Senate with regard to Rules of Procedure of the Senate15 and the Law on Co-operation between Chambers of the Parliament.16 In both cases, it evidently aims to protect the otherwise weaker chamber when it comes to the choice of its procedural rules. Thirdly, a similar construction is used with regard to international treaties. The ratification of international treaties pursuant to Article 49 of the Constitution that lists virtually all the more important international treaties also requires the consent of both chambers of the Parliament. Specifically, such treaties include treaties affecting the rights or duties of persons; alliance treaties, peace treaties and other political treaties; treaties by which the Czech Republic becomes a member of an international organisation; treaties of a general economic nature; and treaties concerning additional matters the regulation of which is reserved to statute. A fourth, and perhaps the last significant remaining,17 shared power concerns military decisions pursuant to Article 43 of the Constitution, such as sending the Czech armed forces abroad for a long period of time (short-term decisions being reserved for the Government). In some instances the chambers act alone in the legislative process. The Senate, as the undissolvable chamber, can issue so-called ‘statutory measures’ when the Chamber of Deputies is dissolved and there is a situation of necessity. These legal acts have the same normative power as normal legislative acts enacted by the Parliament, but their use and importance are limited by several factors. First, statutory measures can be proposed only by the Government and not by the Senate itself. Secondly, there must be positive confirmation of such statutory measures by the new Chamber of Deputies at its first session in order for the provisions to remain in force.

14 Judgment

of the Constitutional Court of 22 June 2005, Pl ÚS 13/05. no 107/1999 Coll. 16 Law no 300/2017 Coll. 17 Before 2012 both chambers also elected the President at a joint session. 15 Law

86  The Czech Parliament On the other hand, the Chamber of Deputies has an independent (quasi-)legislative power with regard to the law on the state budget and the final state accounts. The state budget is adopted in a form of a bill and, generally speaking, the normal legislative procedure (that we have described above) applies. The state budget can, however, only be proposed by the Government and not by any other subject with a general legislative initiative. Also, as we have hinted, the Senate is not involved in the budgetary procedure under any circumstances. The ‘budgetary weapon’ of the Chamber of Deputies, coupled with the fact that the Government is responsible only to the Chamber, thus further strengthens the position of the Chamber of Deputies and signifies that it was designed as the stronger chamber. From the practical standpoint, unregulated lobbying and (semi) missing regulatory impact assessment have long been two of the most important issues influencing the quality of the Czech legislation. Significant steps have been made with regard to the problem of the legislation’s impact assessment (even though the practice leaves much to be desired), but the problem of unregulated lobbying remains the core problem of the legislative process. The necessity to conduct a regulatory impact assessment (RIA) prior to proposing a new bill in the Parliament was introduced by a Governmental decision in 2011. It now forms a part of the Legislative Rules of the Government, which is a document that lays down the process of preparation of Governmental bills. Even though the formal RIA requirement does not automatically translate into substantively better regulation, commentators have noted that it at the very least makes the process more transparent and structured.18 The attempts to regulate lobbying in the Parliament have been much less successful and the network of relationships between MPs or other state officials and lobbyists is anything but transparent. As of January 2021, there is no regulation of legislative lobbying in Czechia. So far, there have been four legislative proposals aimed at changing this state. However, three of these bills have failed (the 2009, 2010 and 2012 bills) and the fourth one is pending in the Parliament with only a low chance of being passed soon. This state of affairs has been consistently criticised by experts and NGOs such as Transparency International.19 18 Markéta Klusoňová, ‘Posuzování nutnosti právní regulace’, Časopis pro právní vědu a praxi 22, no 1 (2014): 62–8. 19 See Vojtěch Prokeš, Regulace lobbingu v České republice. Od myšlenky ke konceptu a implementaci (Prague: Sociologický ústav AV ČR, 2013).

Competences of the Parliament and its Chambers  87 The Chamber of Deputies plays a key and irreplaceable role in the process of formation of the Government. The relationship of confidence reflects the fact that the Government is responsible to the Chamber of Deputies.20 The formation of the Government is a complex procedure, in which mainly the President and the Chamber of Deputies take part. First, the President designates a Prime Minister. Theoretically, Presidents can designate whomever they wish, but a constitutional convention has emerged that the President must respect the structure of the Chamber of Deputies, although the President does not necessarily need to designate the chairman of the strongest political party. Thus, in 2006, when the Social Democratic Party won the elections but was considered unlikely to form a Government, Mirek Topolánek, the chairman of the second strongest party (the Civic Democrats), was designated Prime Minister. After the President appoints the remaining members of the Government, the Government must – pursuant to Article 68 of the Constitution – go to the Chamber of Deputies and ask for a vote of confidence within 30 days of its appointment. Czechia is thus an example of ‘positive parliamentarism’,21 since the Government has to be positively supported, not just tolerated, by the Chamber of Deputies. In the event that such a vote is not carried, the process is repeated. At the third attempt the Chairperson of the Chamber of Deputies, rather than the President, proposes the Prime Minister. Should even this third attempt be unsuccessful, the President may dissolve the Chamber of Deputies. On the other hand, by an absolute majority of its members the Chamber of Deputies may adopt a resolution of no confidence at any time during the Government’s existence, thus forcing the Government to resign. The resolution of no confidence can be adopted for whatever reasons the Chamber of Deputies sees fit as there are no substantive constitutional limits. The resolution of no confidence is thus the ultimate tool of parliamentary oversight of the Government. Still, under certain conditions, even the resolution of no confidence might not be effective. As we discuss below,22 President Miloš Zeman has not hesitated to tolerate the prolonged existence of Governments that did not gain confidence of the Chamber of Deputies. In such a situation, where a resolution of no confidence is not an option, a denial to pass the budget (and thus forcing the Government to use a provisional budget) might be the only practical tool to hold the Government accountable.

20 Article 68(1)

of the Constitution. also Chapter 5, Section I. 22 See Chapter 5, Section II. 21 See

88  The Czech Parliament Besides playing a vital role in the Government’s creation or termination, the Chamber of Deputies can control the Government through interpellations. Any member of the Chamber of Deputies may submit questions to any member of the Government. However, a failure to address such a question satisfactorily cannot result in individual recall of the member of the Government. A resolution of no confidence would be the only legal redress. Finally, the Chamber of Deputies may establish special investigative commissions that may be used to investigate even the actions of the Government. Besides the aforementioned two most important powers (legislative competence and oversight of the Government), the Parliament has been entrusted with numerous other competences. As already noted, the Parliament has lost the competence to elect the President, but it still plays a role with regard to the end of the President’s term of office. Besides being able to charge the President with gross violation of the constitutional order,23 the Chamber of Deputies and the Senate may adopt a joint resolution that the President is, for serious reasons, incapable of performing his duties. In such a case, the presidential duties will devolve upon the Prime Minister, the Chairperson of the Chamber of Deputies or – if the Presidency becomes vacant during a period in which the Chamber of Deputies is dissolved – upon the Chairperson of the Senate. It is quite obvious that this resolution could potentially be abused for political purposes, but it has never been adopted. Arguably the most important role of the Senate in staffing constitutional bodies is the appointment of Justices of the Constitutional Court. While the candidates are chosen by the President, the Senate has complete discretion in confirming or vetoing the proposed candidates. The Senate has proved to be far from passive in this regard and has in fact vetoed many candidates.24 Beyond these crucial competences, Parliament also elects members of several central public bodies. The Public Defender of Rights – which is one of the most important offices that control the executive and public administration – is elected by the Chamber of Deputies for a term of six years, and is chosen from a group of candidates of whom two are proposed by the President and two by the Senate. The Parliament can

23 See Chapter 5, Section II for further discussion. 24 See David Kosař and Ladislav Vyhnánek, ‘The Constitutional Court of Czechia’, in Armin von Bogdandy, Peter Huber and Christoph Grabenwarter (eds), The Max Planck Handbooks in European Public Law, Vol III: Constitutional Adjudication: Institutions (Oxford: Oxford University Press, 2020), 119–82.

The Procedural Limits of Parliamentary Power  89 thus indirectly influence the control mechanism of the public administration. The Chamber of Deputies and the Senate also elect members of other control bodies, state funds and public institutions such as the Council of Czech Television, the Council of Czech Radio, the Council of the Czech Press Office, the Presidium of the Land Fund, and the members of the Board of Trustees of the General Health Insurance Company of the Czech Republic. III.  THE PROCEDURAL LIMITS OF PARLIAMENTARY POWER

Due to gradual development of the Constitutional Court’s case law, the Parliament has been placed under considerable restraint not only as regards the substantive compliance of legislation with the constitutional order, but also concerning the procedural rules of the legislative process. First of all, there is the rather self-evident fact that – since Czechia is a country with strong judicial review and a constitutionally entrenched bill of rights – legislative acts of the Parliament can be reviewed from the point of view of their conformity with the constitutional order, and especially with the constitutional guarantees of fundamental rights. But, more interestingly, the case law of the Constitutional Court analysed below has introduced further limits on the legislative competences of the Parliament and on the way they are exercised. First, the Constitutional Court has gradually developed a doctrine that makes it clear that it is not just theoretically that the constitution-making power of the Parliament is limited by Article  9(2) of the Constitution,25 but that this provision indeed sets practical limits on how the Parliament can change or amend the constitutional order. Ironically enough, the emergence of this doctrine was initiated by Parliament’s reaction to its own internal problems. After the Klaus government fell in 1997, the new Tošovský caretaker government was able to secure a vote of confidence only on the condition that new elections would be scheduled as soon as possible. However, the Constitution did not contain a provision that would make such early elections possible. Simply put, the Chamber of Deputies would need to be dissolved by the President and Article 35 of the Constitution did not (at that time) offer a solution that would lead to dissolution and that 25 Article 9(2) of the Constitution states that ‘Any changes in the essential requirements for a democratic state governed by the rule of law are impermissible.’ For further details see Chapter 2, Section III.

90  The Czech Parliament would be readily available under the given conditions. For this reason, the strongest political parties succeeded in adopting a special constitutional act which provided an exception to Article 17 of the Constitution (the four-year electoral term of the Chamber of Deputies) and stipulated that the electoral term of the then sitting Chamber of Deputies would end prematurely. This solution was heavily criticised in doctrinal literature,26 but the constitutional act was not challenged before the Constitutional Court, so the question of the ‘constitutionality’ of such a constitutional act remained unresolved. The possibility of shortening the term of the Chamber of Deputies by a special constitutional act was considered anew in 2006 when the elections to the Chamber of Deputies ended in a tied vote (two 100-strong blocks) and resulted in complications with obtaining a vote of confidence in a new government. However, a political solution was found and the idea was not revisited until late in the 2006–2010 term. In 2009 yet another political crisis occurred. Again, the political parties sought the quickest way to get to snap elections and none of the possibilities provided for by Article 35 of the Constitution was found acceptable. Therefore, copying the solution adopted almost 12 years earlier, the Parliament adopted an ad hoc constitutional law that allowed this unique curtailing of the electoral term. The difference was that this time the constitutional act and the President’s consequent decision to call snap elections were challenged by a member of the Chamber of Deputies via a constitutional complaint. The Constitutional Court accepted the petition, and in the Melčák judgment it annulled the constitutional act in question because it was a unique solution that – in the opinion of the Court – contravened the principle of generality of law and the prohibition of retroactivity.27 This judgment has had far-reaching consequences, because it was the first time that the Constitutional Court explicitly held that it had the power to review even constitutional acts adopted by the Parliament. However, the roots of this doctrine are even older. In 2002 the Constitutional Court effectively refused to acknowledge the effects of the Euro Amendment and interpreted the Czech Constitution as if it was still allowed to review domestic legislation from the point of view of its conformity with international human rights treaties. It claimed that such a change would reduce the procedural level of human rights protection and that it would, 26 Including the criticism by the then Vice-President of the Constitutional Court, Pavel Holländer. See Pavel Holländer, ‘Materiální ohnisko ústavy a diskrece ústavodárce’, Právník 144, no 4 (2005): 313–36. 27 Judgment of the Constitutional Court of 10 September 2009, Pl ÚS 27/09, Melčák.

The Procedural Limits of Parliamentary Power  91 as such, contradict the very basic constitutional principles protected by the Eternity Clause. This heavily criticised judgment demonstrated the Constitutional Court’s resolve to draw very concrete practical implications from the Eternity Clause, even though an explicit statement that it had the power to annul constitutional acts was lacking.28 Thus, the Melčák judgment was a clear challenge to the Parliament’s authority and its competence to decide what is (and is not) part of the constitutional order. Some senior members of the Parliament even considered and publicly suggested that the judgment should be disregarded as an ultra vires exercise of power on the part of the Constitutional Court,29 but the brewing constitutional crisis eventually petered out and the judgment was accepted by other constitutional actors. In addition to the substantive constitutional limits and the assumption of ‘the last word in all matters constitutional’, the Constitutional Court has formulated a third important doctrine that significantly limits the Parliament’s legislative power, namely review of the constitutionality of the legislative process itself. According to this now established doctrine, the Constitutional Court can review the internal procedure in the Parliament and annul statutory law for failing to follow the ‘correct’ procedure. The doctrine applies to much more than simple technical mistakes, such as failing to reach a prescribed quorum, and the Constitutional Court has made procedural review an essential part of the algorithm it uses to review legislation. Some of the instances of the use of procedural review touch upon finer points of legislative procedure that are not even mentioned in the Constitution, since the Constitution regulates the legislative procedure in a very concise manner and virtually all legislative procedural rules are laid down in sub-constitutional legislative acts. One of the most important rulings in this regard was the Legislative Riders judgment.30 The Constitutional Court held that the eponymous practice of legislative riders was an unconstitutional one. In Czech practice the label ‘legislative rider’ (přílepek) is used to denote an amendment to a bill that has little or no connection with the subject matter of the act in question. Under Czech legislative rules, such an amendment addition is generally permissible in the second reading of a legislative bill31 28 As regards the Euro Amendment judgment see also Chapter 2, Section IV. 29 Idnes.cz, ‘Respekt, či překročení pravomocí? Politiky verdikt soudu rozdělil’, Idnes.cz, 10 September 2009, https://www.idnes.cz/zpravy/domaci/respekt-ci-prekroceni-pravomocipolitiky-verdikt-soudu-rozdelil.A090910_165242_domaci_bar. 30 See Judgment of the Constitutional Court of 15 February 2007, Pl ÚS 77/06. 31 See Section II.

92  The Czech Parliament and, until the Legislative Riders judgment, there was no explicit singlesubject rule in the legislative procedure. Because of this, a rider skips many important parts of the legislative procedure, such as deliberation in committees or the opportunity for the Government to issue a statement. The Constitutional Court specified that the practice of legislative riders was unconstitutional for two main reasons. First, it added to the complexity of laws and made them unclear and confusing, thus violating the rule-of-law principle of the Constitution. Secondly, it was held that the use of riders limited the ability of a parliamentary minority to have a meaningful say in the legislative process. While the details of the legislative procedure (including its structure, the importance of committees, etc) are not mentioned in the Constitution, the Constitutional Court subsumed some of the core practices under ordinary constitutional principles of parliamentarism. In short, the Court stressed that despite the vagueness of the Constitution on this point, the legislative procedure must allow for a meaningful discussion and the democratic rights of the minority must be protected. Any attempts to circumvent these minimal procedural rights would be considered unconstitutional. It is doubtful, however, to what extent the Legislative Riders judgment remains good law, because of the subsequent treatment of some of its main findings. Most importantly, the emphasis on clarity and substantive consistency of the laws and the leaning towards a soft version of the single-subject rule were effectively overruled just a year later. In the Omnibus Bill judgment the Constitutional Court accepted as constitutional a typical omnibus bill that was prepared by a reform-minded Topolánek Government (2006–2009) in order to amend dozens of specific bills in various areas (mainly tax law, social security law and medical law) and the only unifying element of which was an attempt to reform public budgets. Here, the Constitutional Court refused to follow one of the two main holdings of the Legislative Riders judgment namely that legislative solutions that add unnecessarily to complexity of laws and make them unclear and confusing violate the rule-of-law principle of the Constitution. Interestingly, the judge rapporteur of the Legislative Riders judgment, Eliška Wagnerová, herself opined that the Omnibus Bill judgment effectively overruled some of the main principles stemming from the Legislative Riders precedent.32

32 Judgment of the Constitutional Court of 31 January 2008, Pl ÚS 24/07. See Wagnerová’s dissenting opinion to this judgment, available in English at: http://www.usoud.cz/en/ decisions/20080131-pl-us-2407-stabilization-of-public-budget-tax-amendments-1/.

The Procedural Limits of Parliamentary Power  93 The findings regarding protection of a parliamentary minority and parliamentary debate, on the other hand, have withstood the test of time and have been developed even further in the subsequent case law of the Constitutional Court. A particular recurring issue has been the constitutional conformity of the ‘legislative emergency’ procedure. Under the Chamber of Deputies’ Rules of Procedure,33 the Chairperson of the Chamber can. in exceptional circumstances specified within the Rules, declare a state of legislative emergency for a certain period. Under the state of legislative emergency, many rules and time-limits of the legislative procedure are abandoned for the sake of speed and efficiency. As a side effect, the room for parliamentary debate – and especially the ability of the minority to ‘obstruct’ the proceedings – is significantly reduced. While the Constitutional Court has generally accepted the proportionality of this trade-off, it has held that the state of legislative emergency can be initiated only under pressing and objective external circumstances, and that it is not simply a matter of the discretion of the Chairperson of the Chamber. In the Building Savings judgment34 the Constitutional Court held that the state of legislative emergency had been abused by the ruling coalition government in order to hasten the adoption of a legislative act that the Government considered economically and politically crucial, without a pressing and objective external need being present. It stressed that such behaviour by the parliamentary majority threatens basic constitutional principles such as the free competition of political forces and the principle of parliamentary discussion. The Constitutional Court also explicitly ruled out the possibility of using the state of legislative emergency as an obstruction-breaking tool. In other words, while the majority will eventually have its way, the minority must have its say. This line of case law has been repeatedly confirmed by the Constitutional Court, even though it has accepted some other obstructionbreaking tools. In the EET judgment35 it accepted a premature ending of the discussions in the Chamber of Deputies. The Court held that after a debate on a single issue that had lasted several months (and that was moreover well publicised and that also included points made by extraparliamentary actors) the constitutional requirements had been satisfied. The emerging ‘sufficient discussion’ standard will probably be applied in future Constitutional Court case law.

33 Law

no 90/1995 Coll. of the Constitutional Court of 19 April 2011, Pl ÚS 53/10. 35 Judgment of the Constitutional Court of 12 December 2017, Pl ÚS 26/16. 34 Judgment

94  The Czech Parliament IV.  PARLIAMENTARY ELECTIONS AND THE CZECH POLITICAL PARTY SYSTEM IN TURMOIL

As we have already noted, the systems of elections to the two chambers of the Parliament were intentionally designed to contrast with each other. Article 18 of the Constitution prescribes that the Senate’s electoral system must be a majority one, whereas the Chamber of Deputies’ is based on the principles of proportional representation. The details of the respective electoral systems are regulated by a special law.36 The Senate’s electoral system is relatively straightforward and has not changed since its inception. There are 81 single-member districts; an absolute majority must be reached in order to win a seat in the Senate and a third of the seats are re-elected every two years. The first round of the election is a run-off between multiple candidates, and if none of the candidates receives more than 50 per cent of the vote, a second round is held as a run-off between the top two candidates from the first round. The party system is shaped predominantly by the system of proportional election to the Chamber of Deputies. Therefore, there are multiple parliamentary parties and no political party comes even close to securing a majority on its own. The candidates of the strongest political parties win much less often than one would expect. The majority system and the distinctly regional character of the Senate elections regularly lead to success for independent local notables and ad hoc coalitions of smaller political parties. This in turn often causes significant differences in the composition of the two chambers, just as the drafters of the Constitution intended. The system of elections to the Chamber of Deputies has been more dynamic. Until the 2021 Grand Election judgement II,37 Czech territory was divided into 14 districts that varied significantly in size and that corresponded to the Higher Self-Governing Units.38 The legal electoral threshold of 5 per cent of the votes is applied and the seats within individual districts are allocated using the D’Hondt formula. Furthermore, higher thresholds (of 10 per cent, 15 per cent and 20 per cent respectively) were set for pre-election coalitions consisting of two, three, or more than three political parties. The uneven size of the districts has been criticised as, especially in the smaller districts, the results tend to be less proportional with a natural threshold of almost 15 per cent of the votes in the

36 Law

no 247/1995 Coll. of the Constitutional Court of 2 February 2021, sp zn Pl ÚS 44/17. 38 See Chapter 7 for further discussion. 37 Judgment

Parliamentary Elections and the Czech Political Party System  95 smallest district (Karlovy Vary).39 In fact, the four biggest districts tend to get about half the seats in the Chamber of Deputies and the results are truly proportional only with regard to those four districts. The Constitutional Court upheld this electoral system in 2009, holding that it does not unreasonably limit the proportionality of the system and the principle of equality of the right to vote. However, in the Grand Election judgment II, the Constitutional Court has held that certain elements of the system (or a particular combination of these elements) violate the constitutional principle of proportional representation as well as the principle of equality of the right to vote. It has annulled inter alia the legal threshold for the coalitions. But much more importantly, it has held that the combination of 14 districts and the system of allocation of seats (D’Hondt formula used at the level of districts) causes unequal and disproportionate seat allocation. However, the Constitutional Court has formally annulled only the system of seat allocation and not the existence of districts. It thus left to the Parliament the task of coming up with a constitutionally valid solution (and both single-district and 14-district solutions are on the table). As of April 2021, the Parliament is still trying to come up with a new electoral law (and a new system) that will regulate the October 2021 parliamentary election. In the 1990s, on the other hand, the whole of Czech territory was considered a single district with the Hagenbach-Bischoff quota being employed. The changes in the system of election to the Chamber of Deputies were closely tied to two significant phenomena of Czech constitutional history: the political weakness of governments40 and the turmoil in the Czech political party system. The 1990s, and to a certain extent the 2000s, could be considered an era of relative stability. Even before 1993, the roots of the Czech political party system were firmly planted. Two political parties emerged that would control Czech politics for many years to come. On the one hand, there was the Civic Democratic Party (ODS), which was chaired by Václav Klaus. A right-wing party, ideologically based on economic liberalism with some conservative emphases, it was the dominant party of the governments between 1992 and 1997 (and later under different chairmen in 2006–2009 and 2010–2013). Its most significant political opponent was the Czech Social Democratic Party (ČSSD). Chaired by Miloš Zeman, it was a left-wing party with a slightly social-conservative outlook. It was the leading governmental party between 1998 and 2006.

39 See 40 See

Decision of the Constitutional Court of 17 April 2009, Pl ÚS 57/06. Chapter 5, Section II for further discussion.

96  The Czech Parliament Besides the two dominant parties, there were several smaller political parties, which usually served as potential coalition partners. In the 1992 and 1996 elections, four such parties were able to secure seats in the Chamber of Deputies. The Communist Party (KSCM) was of course an heir to the former Czechoslovak communist party. The Christian Democrats (KDU-CSL) was a centre or centre-right political party with a firm basis in the Czech Christian population, even though the number of religious people in Czechia is amongst the lowest in the world.41 The Civic Democratic Alliance (ODA) was in many respects a smaller clone of the Civic Democratic Party. And, finally, the Republican Party was an extremist, xenophobic political project virtually personified by its chairman, Miroslav Sládek. The Civic Democratic Party, the Civic Democratic Alliance and the Christian Democrats formed coalition governments after both the 1992 and the 1996 elections. However, the political scandal that led to the fall of the second Klaus Government in 1997 created shock waves leading both to a minor earthquake in the Czech party system and to significant changes in the Chamber’s electoral system. In 1997, the Civic Democratic Party faced a scandal concerning its financing. It was revealed that some of its sponsors were in fact fictional persons and that the finances were coming from unknown sources. This led to an internal split in the party and subsequently to the fall of the Government. The 1998 election resulted in political deadlock. Neither the Civic Democratic Party nor the Czech Social Democratic Party could form a government on its own and neither could or wanted to form a coalition with the smaller political parties. In particular the relationship between the later Coalition of Four member (the Freedom Union) and the Civic Democrats was soured by the previous internal split. The head of the Civic Democrats (future President Václav Klaus) saw the Freedom Union’s actions as a personal betrayal and the Freedom Union had great reservations concerning Václav Klaus. Thus, the idea of the Opposition Agreement was born. The Civic Democrats and the Social Democrats, natural ideological opponents, came to an agreement (called the Opposition Agreement) with major consequences. The Social Democrats would be allowed to form a minority government and they would be tolerated by the opposition Civic Democrats, while other political parties would be pushed aside. This in turn, after the elections, led the smaller centre-right political parties to form a new and potentially powerful political bloc known as ‘The Coalition of Four’.

41 See

Chapter 1, Section I.

Parliamentary Elections and the Czech Political Party System  97 The Opposition Agreement parties reacted in 2000 by enacting a new electoral system that would effectively produce majoritarian-like results. Specifically, the electoral law amendment increased the number of voting districts to 35 (with some districts offering as few as four seats) and thus drastically raised the natural threshold. Furthermore, it introduced a modified D’Hondt method and raised the legal threshold for electoral coalitions to 10, 15 or even 20 per cent for coalitions of two, three and four (or more) political parties respectively.42 However, the Constitutional Court declared most of the new elements introduced by the amendment unconstitutional. It did so because, according to the Court’s Justices, the amendment introduced too many majoritarian elements into the constitutionally required ‘system of proportional representation’.43 During the rule of the Topolánek (2006–2009) and Nečas (2010–2013) Governments, various changes to the electoral system were proposed, such as various forms of bonus (ie extra seats) for the winner of the elections. Again, these proposals were based on the notion that it had been extremely hard to negotiate a firm majority and consequently a stable government after virtually all previous elections to the Chamber. However, none of these proposals ever got past a rhetorical stage. In 2009 (around the fall of the Topolánek Government44) yet another series of earthquakes in the political party system started, which is arguably not yet over.45 The Christian Democrats in practice split into two political parties, as some of their senior members left the party to found a new one: the conservative-liberal TOP 09. Interestingly, the Christian Democrats’ split was indirectly connected to the chaotic negotiations after the 2006 elections to the Chamber and the consequent fall from grace of Miroslav Kalousek (who was deposed as the chairman of the Christian Democrats and then left the party for TOP 09). At the same time, Public Affairs, an ideologically vague political party that was described by many as a business project or a populist movement, started gaining traction. In the 2010 elections only five political parties secured seats in the Chamber of Deputies. Three of these were the traditional parties: the Civic Democratic Party, the Czech Social Democratic Party 42 Judgment of the Constitutional Court of 24 January 2001, Pl ÚS 42/2000, Grand Election. 43 Ibid. The thresholds for coalitions were not found unconstitutional in 2001, but the above mentioned 2021 Grand Elections judgment II changed this. 44 Which directly led to the Melčák judgment discussed above. 45 See Seán Hanley, ‘Dynamics of new party formation in the Czech Republic 1996–2010: looking for the origins of a “political earthquake”’, East European Politics 28, no 2 (2012): 199–243; and Section V of the Conclusion of this book.

98  The Czech Parliament and the Communists. However, both Public Affairs and TOP 09 had considerable success and even became members of the ruling coalition headed by the Civic Democratic Party. The Christian Democrats did not even make it to the Chamber, for the first time in the modern Czech history. However even this government ended prematurely in 2013 after periods of internal instability46 and a scandal that involved a police raid on government buildings and criminal charges against the Prime Minister and his mistress. This scandalous affair obviously shook the already de-stabilised party system even more. The ‘Public Affairs’ party disappeared from the political scene, the Civic Democratic Party’s support dramatically declined, and the widely shared perception of corruption in political circles led to the emergence of two important political parties. Tomio Okamura headed a political party called The Dawn, an extremist anti-system party. After some internal power struggles, the party effectively transformed into the Party of Direct Democracy, still a significant opposition party in the early 2020s. But, even more importantly, ANO 2011, with Andrej Babiš as Chairman, relatively quickly evolved into the dominant power on the Czech political scene. Its ideological basis is hard to ascertain and it has been described by many commentators as a populist project driven by anti-corruption rhetoric.47 Andrej Babiš won the 2017 elections and became the Prime Minister. In the early 2020s, his ANO 2011 has so far enjoyed the support of roughly a third of the voters despite a poor handling of the Covid-19 pandemic. Interestingly, the second strongest political party in the early 2020s is also a new political entity: in 2017, the Pirate Party secured seats in the Chamber for the first time and it has continued to increase its support ever since. While the previous paragraphs have shown that the system has undergone significant developments, it has been noted that many of the problems of the Czech party system are much deeper and are not simply a reaction to passing external influences. Brunclík and Kubát, for example, have observed institutional weakness of the political parties, which have – in addition to the vulnerability (e.g., succumbing to corruption) – an extremely small membership base, a poor organization and a lack of discipline … The second problem is a high ideological polarization of the party system, mainly due 46 See Chapter 5, Section II for further discussion. 47 Stijn van Kessel, Populist Parties in Europe: Agents of Discontent? (Basingstoke: Palgrave Macmillan, 2015), 41.

Table 1  The composition of the Chamber of Deputies between 1992 and 2017

1996

68

61

18

13

22

18

X

1998

63

74

20

X

24

X

2002

58

70

X

X

41

X

2006

81

74

13

X

26

2010

53

56

X

X

2013

16

50

14

X

2017

25

15

10

X

USV. SPD ANO Pirates STAN

X

X

X

X

X

X

X

X

X

19

X

X

X

X

X

X

X

X

X

X

31

X

X

X

X

X

X

X

X

X

X

X

6

X

X

X

X

X

X

X

26

X

X

X

X

24

41

X

X

X

X

X

33

X

X

X

X

X

26

14

X

47

X

X

15

X

X

X

X

X

7

X

22

78

22

6

Parliamentary Elections and the Czech Political Party System  99

Christ. Civic Soc. Dem. Dem. Dem. (KDUSPRTOP (ODS) (ČSSD) ČSL) ODA Comm. RSČ US 4-Coal. Green VV 09

100  The Czech Parliament to the still Marxist-Leninist Communist Party (Komunistická strana Čech a Moravy – KSČM) having so far zero coalition potential at the national level. The consequence of this is that about 15 per cent of parliamentary seats are blocked by the communists.48

Table 1 illustrates the changes in the party system by showing the shifts in the composition of the Chamber of Deputies between 1992 and 2021. This table addresses the changes seen on the Czech political scene from the 1992 until the 2017 elections. V.  SCANDALS, CORRUPTION AND IMMUNITIES

In the previous section, we painted a picture of continuous political turmoil that was fuelled, among other things, by political scandals. Some of these scandals were not only of a political nature and also had distinct criminal undertones. The perceived corruption and untouchability of the political elites was thus one of the key factors contributing to the rise of new, populist or even anti-system elements in the Czech political system. We have already mentioned the party-financing scandal of 1997 and the scandal surrounding the fall of the Nečas Government in 2013, but in fact many members of the Parliament have been charged with criminal offences unrelated to these events. Amongst the most important scandals were the 2005 conviction of the Social Democratic Minister and MP Ivo Svoboda (five years in prison due to his involvement in tunnelling (ie syphoning off assets) of the Liberta company) or the charging in 2012 of David Rath, an MP and a former Minister of Health, with bribery (for which he was later sentenced to eight and a half years in prison). In such an atmosphere the question of parliamentary immunity inevitably had a prominent place in political discussion. As a matter of fact, the extent of parliamentary immunity in the Czech constitutional system has long been widely criticised and it was a contentious issue even during the drafting of the Constitution. Before constitutional amendment no 98/2013 Coll., the immunity of Members of Parliament was quite far-reaching. Indemnity, ie substantive immunity covering utterances and voting in the Parliament was interpreted very extensively by the Supreme Court. The Supreme Court held, for example, that even an offer of a bribe during a private meeting of a

48 Miloš Brunclík and Michal Kubát, ‘The Czech Parliamentary Regime After 1989: Origins, Developments and Challenges’, Acta Politologica 8, no 2 (2016): 18.

Scandals, Corruption and Immunities  101 deputies’ club (of the Public Affairs party) qualifies as an ‘expression’ within the meaning of the Constitution, even though it was completely unrelated to the functioning of the Parliament.49 Such excesses were limited only by the subsequent case law of the Constitutional Court which moved towards a narrower understanding of indemnity. Specifically, a functional rather than territorial understanding of the concept of ‘expression in the Parliament’ is preferred by the Court.50 Besides indemnity, Members of Parliament enjoyed procedural immunity ‘for life’. They could be criminally prosecuted only with the consent of the respective chamber of the Parliament. If consent was not given the criminal prosecution was foreclosed forever. Such extensive immunity was exceptional from both the European and world-wide perspectives. Some states provide for indemnity only and those that guarantee procedural immunity usually foreclose criminal prosecution (where relevant consent was not given) restricted to the duration of the parliamentary mandate (Denmark, Italy, Spain, Poland, Greece and Germany) or even just for the durations of parliamentary sessions (Belgium, France and Switzerland). Under the rules brought about by the aforementioned 2013 amendment, if a chamber of Parliament does not consent to the criminal prosecution of a Member of Parliament, such prosecution is foreclosed only for the duration of their term of office. In the 1990s and the 2000s, the procedural immunity was used to shield at least 16 MPs from a potential prosecution and thus immunising them from prosecution for those accuations for the rest of their lives. The charges included assault, causing a road accident while driving under the influence, and various forms of corruption.51 While not all instances of applying the procedural immunity can be labelled as abuse, many cases have remained controversial and have shaped public opinion with regard to parliamentary immunities. The new regulation is more in line with the logic and function of parliamentary immunity, as its objective is not primarily to protect a particular individual, but rather to protect the Parliament itself from incursions by the executive power. Besides limiting the procedural immunity, there have been attempts to make possible conflicts of interest more transparent and thus limit the potential for political corruption. The most important piece of legislation 49 Decision of the Supreme Court of 10 March 2012, 11 Tcu 135/2012. 50 Judgment of the Constitutional Court of 16 June 2015, I ÚS 3018/14. 51 Petra Konečná and Jaroslav Soukup, ‘Poslanecká imunita’, Novinky.cz, 1 February 2010, https://www.novinky.cz/tema/clanek/poslanecka-imunita-40095588.

102  The Czech Parliament in this regard is the 2006 Conflicts of Interests Act (no 159/2006 Coll). Under this Act, MPs are primarily obliged to refrain from conflicts of interests, but even more importantly, they have to declare their interests, extra-parliamentary functions and their financial circumstances in an official register. VI. CONCLUSION

As we have seen, the position of the Parliament, as the holder of the legislative power, is defined by an interesting mix of dynamic factors. The relationship between the Constitutional Court and the Parliament seems to have settled down, at least for now. The Constitutional Court has built itself a fairly strong position vis-á-vis the legislature and has imposed significant limits on the legislative powers, ranging from review of internal parliamentary procedures to limiting the Parliament’s constitution-making powers. In other areas the situation is even more volatile. Perhaps most importantly, the last decade has seen an acceleration in the changes in the political party system and, consequently, also in the composition of the Parliament. The problem of the instability of party majorities in the lower chamber – and the consequent instability of the executive power – obviously does not get any better as a result. Last but not least, the Parliament found itself on the receiving end of important constitutional changes, such as when it lost the competence to elect the President and when its members’ immunity was limited. Amongst this volatility, the Senate, however relatively weak by design, seems to be an island of stability and a political counter-weight to the lower chamber. On the one hand, this can prevent some hasty or otherwise problematic changes in the constitutional order (of the Hungarian variety), but, on the other, it is of little help when it comes to the more day-to-day problems. The parliament’s instability, as we will see in the next chapter, is closely tied to the fragile position of the Government, and is thus responsible for some of the less praiseworthy features of Czech constitutionalism. FURTHER READING Balík, Stanislav and Vít Hloušek. ‘The development and transformation of the Czech party system after 1989’. Acta Politologica 8, no 2 (2016): 103–17.

Further Reading  103 Brunclík, Miloš and Michal Kubát. ‘The Czech Parliamentary Regime After 1989: Origins, Developments and Challenges’. Acta Politologica 8, no 2 (2016): 5–29. Kopeček, Lubomír and Jan Petrov. ‘From Parliament to Courtroom: Judicial Review of Legislation as a Political Tool in the Czech Republic’. East European Politics and Societies 30, no 1 (2016): 120–46. Kysela, Jan. Dvacet let Senátu Parlamentu České republiky: v souvislostech. Prague: Leges, 2016. Williams, Kieran, ‘When a Constitutional Amendment Violates the “Substantive Core”: The Czech Constitutional Court’s September 2009 Early Elections Decision’. Review of Central and East European Law 36, no 1 (2011): 33–51. Wintr, Jan. Česká parlamentní kultura. Prague: Auditorium, 2010.

5 The Growing Tension within the Double-Headed Executive President – Government – Dual Executive – Presidential Powers – Direct Presidential Elections – Formation of Government – Vote of Confidence – Ministries – Parliamentary Democracy – Constitutional Conventions – Public Service – Emergency Powers

A

s we emphasised in Chapter 1, Czechia was from the start of the drafting process envisaged as a parliamentary republic. In fact, there was hardly any foreseeable alternative. The first Czechoslovak Republic, whose constitutional institutional design had a significant influence on the drafters of the Czech constitution, was also a parliamentary republic. The rough outline of the executive power’s structure was in turn influenced by the 1875 constitution of the Third French Republic. The basic outline of the executive branch thus followed the established model. On the other hand, a constitutional system’s functioning can hardly be predicted and programmed in an algorithm-like way. Therefore, even in the case of Czechia, complex interactions between other constitutional provisions, external political factors and even the influence of particular individual strong political figures all contributed to the emergence of a specific arrangement for the executive. I.  THE CHALLENGE OF A DOUBLE-HEADED EXECUTIVE

To attain a better understanding of this arrangement one must dig much deeper than the basic structures and competences as they are laid down by the Constitution. Knowledge of those structural provisions is nevertheless vital. The executive power is regulated by Chapter III of the Constitution. Chapter III is in turn divided into two subchapters

The Challenge of a Double-Headed Executive  105 dealing with the President (Articles  54–66 of the Constitution) and the Government (Articles 67–80 of the Constitution). Article 80 of the Constitution deals specifically with the Prosecutor’s Office, which will not be analysed in detail in this chapter. The President is the nominal Head of State. Anyone who is eligible to be elected a Senator (ie anyone who holds Czech citizenship and is at least 40 years old) can also become President. The President was originally elected by the Parliament, but direct elections were introduced in 2012. The term of office is five years and no one can be elected for more than two consecutive terms. The President’s competences include few ­typical executive powers, despite the President’s placement in the executive chapter of the Constitution. By typical executive power, we refer p ­ rimarily to the power to execute laws, either by issuing normative acts or through executive actions. The Czech President cannot issue any normative acts (such as executive orders, decrees or even sub-statutory acts) and does not have control over executive bodies. The function of the President is thus constructed primarily as a representative one. The President represents the state internationally (even though the bulk of foreign politics of course rests on the shoulder of the Government) and exercises numerous ceremonial powers including granting and awarding state honours and appointing professors. Furthermore, the President can be considered a ‘moderator of political processes’. This aspect of the President’s position is represented mainly by competences concerning the creation of Governments, and by convening and dissolving the Chamber of Deputies. Finally, the President can be considered a guarantor of constitutionality and integrity of the state. Presidential powers such as the legislative veto power or the power to appoint members of independent constitutional bodies, such as the Czech National Bank, the Supreme Auditing Office and courts fall within this category. As regards the position of the President, the Constitution diverged from the 1920 Czechoslovak Constitution in several significant respects, however. Perhaps most significantly, under the 1993 Constitution the President was given the competence to issue a number of acts without a counter-signature. These competences are listed in Article  62 of the Constitution. Article  62 of the Constitution, which should reflect the strengthened position of the President, lists 11 specific competences of the President that are not subject to a counter-signature. Appointments of Justices of the Constitutional Court, members of the Banking Council of the Czech National Bank, the President and Vice-Presidents of the Supreme Auditing Office, and signing (or vetoing) legislation

106  The Growing Tension within the Double-Headed Executive are amongst the most significant ones. However, even with regard to Article 62 competences the President’s power may be limited. This is the case with appointments to the Constitutional Court, which are subject to approval by the Senate. Article  63 of the Constitution then lists those competences of the President that require a counter-signature, including appointments of judges, calling parliamentary elections, issuing amnesties, or ratification of international treaties. Altogether, there are 11 specific competences listed in Article 63(1) of the Constitution. Additionally, Article 63(2) of the Constitution allows for statutory law to create other competences of the President that would be subject to a counter-signature. This arrangement reflects, up to a certain point, the wishes of the President-elect Václav Havel, who had made clear that he would be willing to serve as President of the independent Czech Republic only if the office came with some real competences. Despite this, a neutral reader of the 1993 Constitution would probably come to the conclusion that the Government was indisputably the only real executive power, while the President was still more or less a nominal Head of State, acting mainly as a moderator. Some authors, very much along the lines of the Third French Republic doctrine, even went as far as to claim that the President was a pouvoir neutre, a fourth neutral power. This opinion, advocated for example by Václav Pavlíček,1 was based on the analysis of the President’s powers, but it was obviously also formed by comparative influences. While this position had a certain logic, it was difficult to defend the assertion that the President is not an executive body, because the Constitution explicitly places the President in the part entitled ‘The Executive Power’. On the other hand, some authors have put forward arguments which could move the position of the President closer to the semi-presidential model.2 The main normative argument for this position relies on the existence of presidential acts which do not require countersignature. Still, if nothing else, the indirect election of the President at a joint session of both chambers of the Parliament originally prevented the Czech model being labelled as semi-presidential. Despite the President’s position as a Head of State, the top executive body is the Government. It is composed of Ministers and Deputy Prime Ministers and headed by a Prime Minister. The Prime Minister 1 See Marek Antoš, ‘Pravomoci prezidenta republiky po zavedení přímé volby’, Acta Universitatis Carolinae 57, no 4 (2011): 27–41, 30. 2 Jan Kysela and Zdeněk Kühn, ‘Presidential Elements in Government. The Czech Republic’, European Constitutional Law Review 3, no 1 (2007): 91–113.

The Challenge of a Double-Headed Executive  107 is appointed by the President and the remaining members of the Government are appointed by the President upon a proposal by the Prime Minister. The Government is collectively accountable to the Chamber of Deputies. This collective accountability is channelled mainly through the vote of confidence and the vote of no confidence in the Government. The Czech system of parliamentary oversight falls into the category of positive parliamentarism,3 meaning that the Government must not only be tolerated by the Chamber of Deputies, but also needs an explicit vote of confidence in order to function. A simple majority of the MPs present is necessary for the Government to obtain confidence. This makes possible the formation of minority Governments, because an opposition party can lower the necessary quorum by simply leaving the session before the vote of confidence without having to vote in favour of the Government. This happened in 1996 and 1998. An absolute majority (101 votes) is needed in order for a resolution of no confidence to be adopted (Articles 68 and 72 of the Constitution). Importantly, there is no possibility of individual vote of no confidence that would result in a recall of a member of the Government. Individual members of the Government can either resign or be recalled by the President. The recall is however only possible upon a proposal of the Prime Minister. At least some individual accountability of members of the Government to the Chamber of Deputies is secured through interpellations. Any member of the Chamber of Deputies may submit questions to any member of the Government. However, as we have already noted, a failure to address such a question satisfactorily cannot result in individual recall of the member of the Government. A resolution of no confidence against the Government as a whole would be the only (and ultimate) redress. The number of Ministries and their respective departments are set out in a special legislative act.4 The Government (at the time of writing in 2020) has four Deputy Prime Ministers and there are 14 Ministries, while the position of a Deputy Prime Minister and a Minister can be held by the same person. It is also deemed acceptable, at least for a short period of time, for one person to head two Ministries.5 Historically, the number of Deputy Prime Ministers and Ministries has changed constantly, due

3 Torbjörn Bergman, ‘Formation rules and minority governments’, European Journal of Political Research 23, no 1 (1993): 55–66. 4 Law on the Establishment of Ministries, no 2/1969 Coll. 5 In 2020, eg, Karel Havlíček was a Deputy Prime Minister for Economy, Minister of Industry and Trade and Minister of Transport.

108  The Growing Tension within the Double-Headed Executive to political negotiations within coalition Governments and also external factors. It could be argued, for example, that the rather short-lived (2003–2007) Ministry of Information was established because of the need to increase the number of seats in the Government in order to give an additional seat in the Špidla Government to one of the smaller coalition parties. The existence of key Ministries (Finance, Internal Affairs, Foreign Affairs, Justice, Defence, Industry and Trade, Health or Labour and Social Affairs) has of course never been in doubt. However, some more marginal Ministries have come and gone since 1993. In 1992–1996, for example, there was a Ministry of Competition, which was later replaced by a Competition Office whose President is not a member of the Government. The Ministry of Regional Development, on the other hand, was only established in 1996. Besides the Ministries, the Law on the Establishment of Ministries established a number of special Central Administrative Bodies. They usually have a very specific task and include the Czech Statistical Office, the Energy Regulatory Office, the Office for Personal Data Protection, the Office for Economic Supervision of Political Parties and Political Movements, and the State Office for Nuclear Safety. In 2020 there were 16 such Central Administrative Bodies. These bodies enjoy a legal position that is almost equivalent to that of a Ministry, but the head of a Central Administrative Body is not a member of the Government. Below the ministerial level there is a system of public administration. In the beginning, it was very similar to the system that was in place in 1993 and that was gradually reformed. Most importantly, a system based on the ‘old’ 1960 regions and districts was gradually replaced by a system that conformed to the structure of municipalities and ‘new’ regions.6 An important feature of Czech constitutionalism is that no executive body, whether the Government or Ministries or the President, can issue decrees or similar legal acts which would have legislative or quasilegislative effect. Even in this regard the Czech Constitution follows the example of the 1920 Czechoslovak Constitution. The decrees with the force of legislative acts that were issued by President Beneš in exile during World War II were in fact extraordinary acts with no normative basis in the 1920 Czechoslovak Constitution and had to be confirmed by a special constitutional law after the war. The Government or individual Ministries and other public administrative bodies can issue only sub-statutory acts



6 For

further details see Chapter 7, Section II.

The Challenge of a Double-Headed Executive  109 (as laid down in Articles 78 and 79 of the Constitution), which cannot create new obligations for an individual,7 but only specify existing obligations stemming from statutory legislation. The only possible exception in this regard is the powers of the Government that are activated in a State of Emergency.8 However, the political-constitutional reality has gradually diverged from the classical parliamentary republic model of weak, nominal heads of state and dominant governments to an even greater extent than the constitutional text would suggest. Even a helicopter view of the political landscape of the Czech executive between 1993 and 2020 provides a reasonably clear and consistent image: the Presidents have been far stronger and the governments noticeably weaker than the constitutional text would suggest. There have been three Presidents so far, and all of them have been members of the unofficial 1990s triumvirate: Václav Havel, Václav Klaus and Miloš Zeman. In fact, even in 2020 there was arguably still no one who would come even close to these three leading figures and the extent of their political and social influence. The governments, on the other hand, have been repeatedly plagued by instability and their inability to implement their policies and often even unable to complete a standard four-year cycle. Between 1993 and 2020 there were 15 distinct governments. The average life-span of a government is thus less than two years. Moreover, three of those 15 governments were temporary caretaker governments which had to be appointed in order to bridge a period of political crisis or deadlock. On two of those three occasions the caretaker governments’ rule was connected with the adoption of a special constitutional law which shortened the term of office of the Chamber of Deputies, because the political representatives could not reach a compromise that would lead them out of deadlock.9 Moreover, there were several minority governments and most of the remaining ones have governed with just a very small majority, so that just one or two rebellious coalition members of the Chamber of Deputies could put the government under pressure or even cause its fall. Attempts to negotiate with these rebels have at times caused 7 This reflects the rule laid down in Article 2 of the Constitution and Article 2 of the Charter of Fundamental Rights and Freedoms that only a legislative act (zákon) may impose obligations on individuals. See also the discussion of the Rechtsstaat principle in Chapter 3, Section II. 8 See below Chapter 5, Section III. 9 See Chapter 4, Section III and the analysis of the 1998 and 2009 constitutional-political crises.

110  The Growing Tension within the Double-Headed Executive further political and legal problems, such as the 2012–2013 attempted criminal prosecution of coalition MPs who had been promised well-paid positions in exchange for their resignation from their MP posts in the Chamber of Deputies. This imbalance in powers between the President, the government and the Chamber of Deputies10 has led to many constitutional-political clashes that had the potential effectively to rewrite the Constitution. In the following sections the most important examples will be discussed. This also raises the question of what factors are responsible for this development. Was there some omission on the part of the drafters? Or were there some unforeseeable forces beyond their control? In our opinion, a realistic answer to this question combines both explanations. While the dominant factors have arguably been of a political nature, the imprecision of the constitutional text has allowed the politically dominant Presidents to put governments under pressure and sometimes even force them into submission. II.  OVER-ACHIEVING PRESIDENT AND UNDER-ACHIEVING GOVERNMENTS

What, then, are the political determinants of the situation we have sketched? First, the concept of an ‘over-achieving’ President is nothing new in Czech constitutional history. The special position of the President dates all the way back to the First Czechoslovak Republic. Although the 1920 Czechoslovak Constitution contained a nuanced system of separation of powers,11 this principle was side-lined in national political life. Most importantly, the first president of the country and a towering figure of the entire inter-war period, Tomáš Garrigue Masaryk, was deeply distrustful of political parties, parliamentary leaders and the Parliament itself. He created an informal political organisation known as Hrad (the ‘Castle’), a powerful coalition of intellectuals, journalists, businessmen, religious leaders and World War I veterans.12 By reason of his charisma, 10 See Chapter 4 for details. 11 Some commentators of that time even claimed that it was too nuanced and contained so many checks and balances that it could hardly function in practice. See the discussion in Jana Osterkamp, ‘Ústavní soudnictví v meziválečném Československu’, Právník 146, no 6 (2007): 585–618, 616. 12 Andrea Orzoff, Battle for the Castle: The Myth of Czechoslovakia in Europe, 1914–1948 (New York: Oxford University Press, 2009). For further details see Chapter 1, Section IV.

Over-achieving President and Under-achieving Governments  111 the fractured political scene and support for the ‘Castle’, Masaryk de facto set the country’s political agenda until his death in 1937. Similarly, the pre-eminent position of Václav Havel, Václav Klaus and Miloš Zeman within the Czech political space cannot be explained merely by referring to the offices they held. They also had a great deal of informal influence that allowed them effectively to control Czech politics for a significant part of post-1993 Czech history. Václav Havel, the first President (1993–2003), was the internationally recognised leader of the political dissent in the late 1970s and 1980s and a moral symbol of the transformation process. Were we to divide the transformation to liberal democracy into specific thematic subcategories, Václav Havel would be the face of the ‘liberal’ facet: a staunch supporter and almost a prophet of human rights, a moral philosopher of a President, and a personal friend of the Dalai Lama. Václav Klaus and Miloš Zeman, on the other hand, represented the traditional clash between left and right that exists within any free-market democracy – a divide that Václav Havel sought to overcome by his concept of ‘non-political politics’. Václav Klaus, who was the President between 2003 and 2013,13 was one of the key architects of the Czech economic transformation: a strong proponent of a free-market economy, and a vocal admirer of Friedrich Hayek and Margaret Thatcher. At the same time, he harboured a strong dislike of the ‘constitutional weed’, such as human rights and many ruleof-law aspects of constitutionalism.14 Put differently, he considered these concepts superfluous, undesirable or even harmful. Miloš Zeman, who was elected in 2013 and re-elected in 2018, was a 1990s political opposite of Václav Klaus. A social democrat, and a loud critic of Klaus’s allegedly socially insensitive politics, he was also Klaus’s antithesis in terms of character. Charismatic, abrasive, but witty, he was quite different from the serious and almost sullen Klaus. Each of the three Presidents was elected for 10 years15 (in a stark contrast to the rather short-lived governments) and left a distinct political, moral and constitutional imprint. While Miloš Zeman and Václav Klaus have been rivals in terms of economic policy and (to a certain extent) EU-Czech relations, they also formed an antithesis to Václav Havel in the remaining value-oriented questions. 13 In addition to that, he was the Prime Minister between 1992 and 1998 and the Chairman of the Chamber of Deputies between 1998 and 2002. 14 See Chapter 2, Section I for further details. 15 Note that Miloš Zeman is supposed to finish his second five-year term only in 2023.

112  The Growing Tension within the Double-Headed Executive Václav Havel was the figurehead of an informal movement that had its roots in certain parts of the dissent. This movement was eventually labelled by its opponents and detractors as the ‘truth and love movement’. This label is a clear reference to Havel’s famous quotation, ‘Truth and love shall prevail over lies and hate’.16 An emphasis on universal values, such as human rights and universal morality, was typical for this stream of Czech politics. Zeman’s and Klaus’s contrasting approach was more pragmatic, national state and state-interest oriented. In other words, these three men significantly contributed to the emergence of two distinct streams of emerging Czech politics, streams that are clearly present even today and that shape some of the most important cleavages in Czech constitutional politics. Their conflicting legacies are still shaping the search for Czech constitutional identity.17 Thus, the three Czech Presidents came to personify the new democratic politics in the minds of the Czech people, which explains the informal influence they exerted. The factors that we mentioned in the previous paragraphs were mostly of a political nature. The political reality simply evolved beyond expectations raised by the constitutional text, which did not suggest a particularly strong position for the President.18 But the positions of the two heads of the executive power – the government and the President – and the relationship between them have also become a problem of constitutional interpretation and a problem of constitutional conventions. Eventually, these tensions had a significant practical impact. In the following paragraphs we will discuss the most important cases that illustrate the incremental strengthening of the presidential position within the Czech constitutional system. The first such cases appeared as early as the 1990s when Václav Havel served as the President, while Václav Klaus (until 1998) and Miloš Zeman (from 1998) served as Prime Ministers. The case concerning the appointment of the Governor of the Czech National Bank deserves special mention. A dispute emerged between Václav Havel (the President) and Miloš Zeman (the Prime Minister) on whether the appointment of the Governor required a counter-signature, and the case was submitted to the Constitutional Court. The Constitution and the Act on the Czech National Bank were slightly unclear in this regard. Article  62 of the Constitution stipulated that the President (without counter-signature) 16 This quotation itself is a wordplay on ‘The truth prevails’ from the Czech Presidential Flag. 17 See also the Conclusion. 18 See Chapter 4, Section I.

Over-achieving President and Under-achieving Governments  113 ‘shall appoint members of the Banking Council of the Czech National Bank’ without explicitly specifying that this included the appointment of the Governor and the Vice-Governor. This might be relevant, as the same Article 62 stipulates with regard to the Constitutional Court that the President ‘shall appoint Justices of the Constitutional Court, its President and Vice-Presidents’. The specific mention of the appointment of the (Vice-) Governor of the Czech National Bank is only included in the Act on the Czech National Bank. Given the fact that all competences stemming from ordinary acts fall under Article 63 of the Constitution, this would consequently require a counter-signature. The majority of the Constitutional Court’s Justices held that both interpretative solutions (ie that a counter-signature is required or that it is not) of the text are plausible and therefore that the case cannot be decided on textual grounds and other arguments have to be considered. The majority eventually preferred the interpretation that left the matter entirely in the President’s hands. Its key argument was that a neutral and non-partisan President better serves the purpose of protecting the Czech National Bank’s independence. At the same time, it argued that on previous occasions the Governor had been appointed without a countersignature and without an explicit Prime-Ministerial protest which fact led to an emergence of a constitutional convention. The dissenting minority, in retrospect quite fittingly, countered that the majority placed too much emphasis on the position of the then President, Václav Havel, and that the neutrality and non-partisan nature of the office of President is wishful thinking rather than an objective reading of the Constitution. The notion of a non-partisan and neutral President was dealt a blow just a few years later in the midst of President Václav Klaus’s clash with Iva Brožová, the President of the Supreme Court. This case19 is especially interesting because it seemingly contradicts our narrative of the gradual increase in the strength of the President, as it actually limited the President’s powers vis-a-vis the judiciary. While this assessment is correct to a certain extent, it also provides us with the opportunity to distinguish between two areas20 of the President’s competences that have developed in different directions.

19 Judgment of the Constitutional Court of 11 July 2007, Pl ÚS 18/06. See Chapter 6, Section X for details. 20 These two areas are not the only ones, but they are – in our opinion – the most significant.

114  The Growing Tension within the Double-Headed Executive The first area concerns various instances of appointment (or an attempted recall, as in the Brožová case) that are under the supervision of the administrative courts or the Constitutional Court. With regard to such presidential competences, courts have gradually tightened the screw and manifested their willingness to review the exercise of presidential acts from the point of view of individual rights and the independence of the affected institution – such as the independence of the judiciary in the Brožová case. A significant step in this direction, not long after the Constitutional Court’s Brožová judgment, was taken by the Supreme Administrative Court in Langer.21 The Langer case, initiated by the eponymous judicial trainee, involved a refusal by President Václav Klaus to appoint a group of 34 judicial trainees because of their youth. Petr Langer, who was a top trainee and ranked first of the 301 candidates who had participated in the admission process for judicial trainees, was a member of this group. All of these trainees had gone through a selection process, had been recommended by the Government for appointment, and were between 25 and 30 years old. When Langer and the other trainees concerned started their traineeship, the age of 25 was the legal threshold for the appointment of a judge. Between the start of their traineeship and the date of the would-be appointment, this threshold changed to 30, with the explicit inter-temporal exception for the group of trainees of which Petr Langer was a member. Notwithstanding this, the President had not appointed Langer and his colleagues but at the same time he had failed to issue a negative decision or any other act beyond an informal declaration that the appointment would not take place. The Supreme Administrative Court held that the President’s inactivity was illegal and arbitrary. According to the Supreme Administrative Court, a constitutional convention had evolved that the President must issue an individual administrative decision when faced with a governmental recommendation of a certain candidate to be appointed as a judge. According to the Langer judgment, the President thus had to appoint Petr Langer or to issue a negative decision and provide reasonable, nondiscriminatory reasons for such conduct. Interestingly, when faced with a similar dispute, the Polish Constitutional Tribunal reached the opposite conclusion and sided with the Polish President.22

21 Judgment of the Supreme Administrative Court of 21 May 2008, 4 Ans 9/2007. 22 See Judgment of the Polish Constitutional Tribunal of 5 June 2012, ref no K 18/09, OTK ZU No 6/A/2012.

Over-achieving President and Under-achieving Governments  115 The Langer ruling has remained controversial ever since. Václav Klaus in particular has seen the ruling, especially when coupled with Brožová, as a sign of the ascent of ‘judgeocracy’.23 Moreover, Václav Klaus has never complied with the ruling, ignoring it completely. There has been no formal attempt to enforce the judgment,24 as there were at the time virtually no legal means to force the President to respect a binding ruling, with the exception of the impeachment proceedings for high treason. However, a refusal to comply with a single ruling could hardly be interpreted as high treason. It is important to note that the scope of impeachable offences changed in 2012, as we discuss below with regard to conduct of Miloš Zeman, but the practical importance of impeachment is still very limited. On the other hand, judicial control of presidential acts that have the potential to directly infringe individual rights has become an established part of the case law of the administrative courts and the Constitutional Court. In 2021, for example, the Supreme Administrative Court held in the Ošťádal case that the President (this time Miloš Zeman) is obliged to decide25 on the proposal to appoint Ivan Ošťádal as a professor at the Charles University in Prague. It is extremely important to note, however, that the attempted judicial taming of the President concerns only a rather narrow subset of the President’s competences. In other areas, just as our main narrative suggests, the Presidents have used their political strength to stretch their constitutional powers to or even beyond their limits. In 2013, at the end of his second term, Václav Klaus arguably used his political position and the weak position of the Government to declare an extremely unpopular amnesty, the most controversial part of which was a complete halt to some long-running criminal proceedings, including some massive frauds that affected thousands of victims. Pursuant to Article  63 of the Constitution, an amnesty decision is subject to a counter-signature by the Prime Minister or an authorised member of the Government. Quite surprisingly, after a massive political fallout, the Prime Minister told the press that he had no option but to counter-sign the amnesty decision and that he did not have the right to refuse to do so. 23 Which even led him and an allied think-tank to publish a book called Judgeocracy in the Czech Republic: Fiction or Reality?. The authors criticised the alleged usurpation of power by the judiciary from the elected representatives. See Václav Klaus et al, Soudcokracie v ČR: fikce, nebo realita? (Prague: Institut Václava Klause, 2006). 24 See also Chapter 2, Section VI. 25 In the Langer sense, ie to appoint him or to issue a negative decision based on reasonable and non-discriminatory arguments.

116  The Growing Tension within the Double-Headed Executive Such a claim was completely out of line with the mainstream doctrine and previous constitutional practice, and there was wide speculation that the President had simply forced the politically weak Government (which fell six months later anyway) into submission by threatening to veto some vital legislation.26 While this speculation was never publicly confirmed by the President or the Prime Minister, it demonstrates a widely usable modus operandi – a politically strong President may get rid of the controlling mechanism of the counter-signature by using political levers on a weak Government. Given the virtual lack of legal checks on the President, this has created the potential for the emergence of a much stronger and unchecked President. This potential has been further exacerbated by the introduction of the direct election of the President and the connected constitutional amendments in 2012.27 The very reasons for introducing direct elections are quite obscure. Their proponents have usually relied on rather general arguments, such as ‘giving more power to the people’. Probably the most fitting assessment is the one made by a Czech constitutional scholar, Jan Kysela, who stated that the calls for direct election of the President are a symptom of a wider crisis of legitimacy of the Czech constitutional system.28 Direct presidential elections were introduced after several political crises29 and after some rather distasteful incidents in the indirect presidential elections30 that strengthened the voices demanding change. While the introduction of direct presidential elections could not be considered a systemic or thought-through remedy, it provided sectors of the public with the feeling that at least something was changing. During the actual process of adoption in the Parliament, the debates concentrated more on the ‘why not’ aspect. The 2012 constitutional amendment not only introduced direct presidential elections, but also changed several other aspects of the position of President. Most importantly, there was a perceived need to counterbalance the soon-to-be increased legitimacy of a directly elected President 26 Radek Nohl and Sabine Kejlová, ‘Amnestie jako obchod? Nečas i Klaus to popírají’, Atuálně.cz, 12 December 2013, https://zpravy.aktualne.cz/domaci/politika/amnestie-jakoobchod-petr-necas-i-vaclav-klaus-to-popiraji/r~2df86ed0634311e380120025900fea04/. 27 Constitutional Law no 71/2012 Coll. 28 Jan Kysela, ‘Přímá volba prezidenta jako symptom krize legitimity ústavního systému’, in Vojtěch Šimíček (ed), Postavení prezidenta v ústavním systému České republiky (Brno: Mezinárodní politologický ústav, 2008), 42–59. 29 The crisis of 1998 and the first shake-up (see also Chapter 4, Section III), the crisis of 2009 and the subsequent emergence of a new party system. 30 During the 2008 presidential elections there were allegations of corruption and even intimidation (such as a bullet sent to a particular member of the Parliament).

Over-achieving President and Under-achieving Governments  117 by broadening the President’s responsibility. Therefore, a new rule was proposed and subsequently adopted which replaced the old, extremely limited conception of the President’s responsibility.31 According to the new rule the President could be held liable not only in the (rather unlikely) case of high treason, but also in the case of gross violation of the constitutional order. Ironically, the potential results of this new conception were effectively negated by the accompanying change in procedural rules. While, before 2012, the charge of high treason could have been submitted to the Constitutional Court by a simple majority vote in the Senate, the new rules require qualified three-fifths majorities in both Chambers of the Parliament. In other words, a two-fifths blocking minority of the President’s allies in any chamber of the Parliament can preclude the submission of the matter to the Constitutional Court. Even without bolstering the competences of the President, the introduction of direct elections, coupled with the near practical impossibility of imposing liability for unconstitutional acts, strengthened the President’s position. With a source of political legitimacy separate from that of the Parliament and the Government, the President can rely on popular support and engage in clashes with both of them. The first directly elected President, Miloš Zeman, has shown this on several occasions. Even the previous Presidents have occasionally attempted to influence the composition of the Government. Václav Havel, for example, hesitated before he appointed Miroslav Grégr a Deputy Prime Minister in 2001. Václav Klaus was even more active than Havel in this regard, the most famous case being the delay in David Rath’s appointment (as Minister of Health) in 2005.32 Still, the extent of Miloš Zeman’s active intervention in the composition of Bohuslav Sobotka’s government (2014–2017) was unprecedented. The President publicly expressed his political reservations concerning several proposed ministers, made appointment of several others subject to a political barter33 and agreed to appoint them only after individual meetings with

31 See above Chapter 4, Section I. 32 See Irozhlas.cz, ‘Se jmenováním některých ministrů měli problém Havel i Klaus. Nakonec ale ustoupili’, Irozhlas.cz, 17 June 2018, https://www.irozhlas.cz/zpravy-domov/ miroslav-poche-prezident-klaus-zeman-havel_1806171955_pj. 33 President Zeman declared that he would appoint Andrej Babiš the Minister of Finance only if the Civil Service Act passed its first reading in the Chamber of Deputies (Lidovky.cz, ‘Zeman: Babiš bude ministrem, pokud služební zákon projde prvním čtením’, Lidovky.cz, 5 December 2013, https://www.lidovky.cz/domov/zeman-babis-bude-ministrem-pokudsluzebni-zakon-projde-prvnim-ctenim.A131205_155633_ln_domov_vsv).

118  The Growing Tension within the Double-Headed Executive the candidates, in which he declared his policy preferences and his views on the running of the ministries in question. Only after the meetings, 83 days after the elections (the longest time in the Czech history), did the President appoint the Government. Such conduct by the President is controversial from the constitutional point of view. A majority of relevant doctrinal opinions agrees that the President has very limited discretion when it comes to appointing ministers. The President can express legal or constitutional reservations with regard to a certain candidate, but it is widely accepted that the President cannot arbitrarily decide simply to reject a candidate who has been proposed by the Prime Minister.34 Further evidence of the unchecked power of the President came shortly thereafter. After the 2017 parliamentary elections, President Zeman appointed Andrej Babiš’s Government on 13 December 2017. Even though the Government did not receive the vote of confidence in January 2018, it governed with the President’s consent until the end of June, when Andrej Babiš’s second government received the vote of confidence. This was in fact the second time that President Zeman had underpinned, through conscious inactivity, a Government that did not have a vote of confidence. The first instance concerned the 2013–2014 caretaker Government of Jiří Rusnok which was in office a week longer. Such conduct by the President effectively circumvents the processes envisaged by the Constitution to ensure the responsibility of the Government to the Chamber of Deputies, as the Chamber has virtually no tools at its disposal to oversee and hold responsible a Government that governs without its confidence.35 While the President’s attempts to influence the government’s composition could be labelled controversial, conscious inactivity with regard to Governments without confidence is considered by doctrine to be a clear violation of the Constitution. It is understood that the President has the duty to appoint a new government ‘without undue delay’ if the previous Government fails to obtain a vote of confidence. While the term ‘without undue delay’ may, depending on circumstances, even mean several weeks, a period of five months is generally considered unconstitutional. Theoretically speaking, such matters can be challenged before the Constitutional Court. First of all, the President could be charged with 34 See eg Pavel Rychetský, ‘Komentář k čl. 68’, in Pavel Rychetský, Tomáš Langášek, Tomáš Herc and Petr Mlsna (ed), Ústava České republiky. Ústavní zákon o bezpečnosti ČR (Prague: CH Beck, 2015), 688. 35 See Chapter 4, Section II.

Over-achieving President and Under-achieving Governments  119 a gross violation of the constitutional order, which could eventually even lead to his impeachment. However, as we have pointed out above, qualified three-fifths majorities in both Chambers of the Parliament are necessary in order to bring the charges. Thus, a two-fifths blocking minority of the President’s allies in any chamber of the Parliament can preclude the submission of the matter to the Constitutional Court. Secondly, the Chamber of Deputies could try to argue that the President’s conscious inactivity gives rise to a competence conflict,36 because it hinders the effective oversight by the Chamber over the Government. However, the ultimate success of such a petition would require the Constitutional Court to interpret the notion of ‘competence conflict’ in a very broad manner and it is far from certain that such an interpretation would be adopted by a majority of Justices. Thus, given the shaky or practically dysfunctional system of holding the President liable, practice has shown that a politically strong and savvy President, such as Miloš Zeman in 2013 and 2018, can perform such feats unchecked. Yet more evidence of the President’s rising influence over governmental matters was provided by the May 2019 controversy surrounding the Minister of Culture. After political disagreement within the Government and within the Social Democratic Party, a minority member of the coalition, the then Minister of Culture resigned. The President refused to accept his resignation, which was necessary for the resignation to be effective (Article  73 of the Constitution). Consequently, the Prime Minister asked the President to recall the Minister and proposed a candidate to replace him. The President stalled and, in clear violation of the Constitution, recalled the Minister only after two months. The appointment of the replacement took another month after the President forced the Prime Minister to propose a new candidate, based on his personal reservations regarding the original candidate. The shifting balance within the executive power cannot be explained purely by analysing the evolution of the position of the President, however. An over-achieving President is possible only where the Government is relatively weak. As we have mentioned above, premature collapses of governments, minority governments and caretaker governments are a common occurrence in Czechia. Many politicians and academics have attributed governmental weakness to the fact that parliamentary elections do not consistently produce stable majorities in the Chamber of Deputies, to which the Government



36 See

Chapter 3, Section VI.

120  The Growing Tension within the Double-Headed Executive is responsible. Governments whose existence depends on one or two backbenchers or even on a fragile compromise with an opposition party are of course easily held to ransom by them or, as we have seen above, by the President. There are at least two significant factors that contribute to this phenomenon. First, like many Czech political actors, we may seek the root of the problems in the electoral system.37 However, all attempts to change the electoral system significantly have failed, partly due to the Constitutional Court which put a halt to introducing majoritarian elements into the method for the election of the Chamber of Deputies. Most importantly, in the 2001 Grand Election judgment, the Constitutional Court declared unconstitutional the election law amendment that increased the number of voting districts, introduced a modified D’Hondt method and abolished the second scrutiny.38 The electoral system, sponsored by the two strongest political parties at that time (the Civic Democratic Party and the Czech Social Democratic Party), would have drastically weakened smaller political parties and would have allowed the Civic Democrats and Social Democrats to control the Chamber of Deputies. The Constitutional Court declared the reform unconstitutional because, according to the Justices, the amendment in question introduced too many majoritarian elements into the Czech ‘system of proportional representation’ which is prescribed for elections to the Chamber of Deputies by Article 18(1) of the Constitution. Further half-hearted attempts to strengthen governments by changing the electoral system were made later. In the period between 2006 and 2009 the Government considered introducing some elements which would favour the winners of elections, such as a certain form of winner’s bonus. These ideas have never been enshrined in law, however. Besides the electoral system, some specific political conditions might be blamed for the notorious weakness of Czech governments, namely the relatively unstable system of political parties and the strength of the Communist Party.39 Between 1993 and 2017, the Communist Party had been consistently winning between 20 and 40 seats in the Chamber of Parliament,40 but it was practically out of question that any other political party would enter into a coalition with it. This effectively meant

37 For a more detailed discussion of the electoral system see Chapter 4, Section IV. 38 Judgment of the Constitutional Court of 24 January 2001, Pl ÚS 42/2000, Grand Election. For more details see Chapter 4, Section IV. 39 For a more detailed discussion of the political party system see Chapter 4, Section V. 40 In 2017 the number of seats held by Communists dropped to a historical low of 15.

Over-achieving President and Under-achieving Governments  121 that a majority of 101 in the Chamber of Deputies had to be conjured from 160 to 180 seats, which in turn necessitated some extremely uneasy partnerships and compromises that threatened the stability of governments. However, the second Babiš Government weakened this taboo in 2018 by striking an agreement with the Communist Party, which would tolerate the coalition of ANO and Social Democrats from the opposition. The coalition would not go as far as accepting the Communists as a third coalition party, but the Communists (formally an opposition party) would allow the Government to function and generally support many of the Government’s bills. Moreover, due to the instability of the political party system, some young and unstable political parties were propelled into government very soon after their establishment. For example, the 2010 Nečas Government enjoyed a historical majority of 118 seats in the Chamber of Deputies, but it had to rely on the new political project called Public Affairs. After less than two years of the Government’s existence, Public Affairs went through an internal crisis that weakened the Government considerably and led to protracted negotiations about a new coalition agreement. There have also been attempts to introduce changes with regard to the process concerning votes of (no) confidence in the government. As we have already mentioned, under the existing system the Government is not only tolerated by the Chamber of Deputies, but needs an explicit simple majority vote of confidence in order to function. An absolute majority (101 votes) is then needed in order for a resolution of no confidence to be adopted (Articles 68 and 72 of the Constitution). At first glance this system may be seen as a complication for governments: several governments have failed to obtain a positive vote of confidence and one was forced to resign by a vote of no confidence without there being an existing constructive alternative. This led some politicians to propose the introduction of some German-style elements of rationalised parliamentarism, such as the constructive vote of no confidence. These proposals never got past the rhetorical stage, however.41 In our opinion the effectiveness of such measures would be doubtful at best. While it is true that the removal of the positive vote of confidence or the introduction of the constructive vote of no confidence would have the potential to prolong the existence of some governments, it would not address the systemic problems. Thus, it would only prolong the existence 41 No proposal to amend the Constitution in this regard has ever materialised and attempts to install ‘the chancellor system’ ceased after a couple of round tables with experts in the Chamber of Deputies.

122  The Growing Tension within the Double-Headed Executive of weak and unviable governments which could not implement their policies. III.  THE STATE OF EMERGENCY AND THE HIDDEN POWERS OF THE EXECUTIVE

As we have stated above, executive power in Czechia has only very limited (quasi)legislative competences. But the 2020–2021 Covid-19 pandemic and the Government’s reaction to it have shown that even executive acts have the potential to regulate individual rights and obligations, something that was previously only surmised. The basis for the Government’s regulatory power can be found in the Constitutional Act on the Security of the Czech Republic (hereinafter also ‘CAS’),42 which recognises three extraordinary states: the state of war, the state of threat and the state of emergency. In response to the threat of the pandemic, on 12 March 2020 the Government declared a state of emergency for Czech territory for a period of 30 days. The state of emergency was later repeatedly prolonged before ending on 17 May 2020. Article  6 of the CAS stipulates that the Government is obliged, when declaring a state of emergency, to set out which rights are limited and to what extent. It also has to specify what obligations are being imposed. Further details are regulated by the Crisis Management Act (hereinafter also ‘CMA’),43 especially by its Article 6 which specifies the rights that can be curtailed by executive acts in a state of emergency. These rights include the freedom of movement, the right to free assembly, the right to property and the right to conduct business. The limitation must be temporary and proportionate. Additionally, the Government can prohibit certain specific operations (for example, in the area of financial and banking services) or impose on individuals an obligation to work, amongst others. The last obligation is especially interesting, because Article 6 CMA does not explicitly allow curtailment of the prohibition of forced labour. Article  6 CAS coupled with the CMA (especially Article  6 CMA) thus creates a very broad ability to limit fundamental rights and to prohibit or order specific conduct. This is consistent with Article  2 of the Constitution, pursuant to which ‘state authority may be asserted



42 Constitutional 43 Law

Act no 110/1998 Coll. no 240/2000 Coll.

The State of Emergency and the Hidden Powers of the Executive  123 only in cases and within the bounds provided for by law and only in the manner prescribed by law’, but it still creates a qualitatively different situation from the normal state of affairs, when the executive power cannot impose obligations independently at all. During the state of emergency, the Government issued dozens of ‘resolutions on the adoption of a crisis measure’ which significantly limited freedom of movement (including a prohibition on leaving Czech territory) and freedom of assembly. It also closed down most businesses. Additional obligations, such as the obligation to wear face masks, were imposed by individual Ministries in resolutions based on special legislation, such as the Act on the Protection of Public Health.44 These resolutions were adopted, revoked and amended at blistering speed and it was almost impossible to follow which resolutions were currently in force. Many of those resolutions were challenged before administrative courts or even before the Constitutional Court. The Municipal Court in Prague ruled that the imposition of obligations by the ministerial resolution (instead of governmental resolution pursuant to the CMA) during the state of emergency was illegal.45 It held that the fact that the challenged measures were adopted by the Ministry of Health, and not by the Government, amounted to a breach of the principle of separation of powers. It emphasised that the Government, even during a state of emergency, is under the continuous supervision of the Chamber of Deputies and the use of ministerial resolutions avoided this supervision mechanism. On the other hand, the review of executive acts by the Constitutional Court was very deferential and all petitions submitted to the Court were dismissed without consideration on merits, primarily because the cases had been brought by unauthorised petitioners. Most of the governmental resolutions that were reviewed were considered ‘normative acts sui  generis’46 that cannot be directly challenged by individuals. In a case where the petition was submitted by an authorised petitioner, such as a group of members of the Senate, the Court refused to review the

44 For further details see Zuzana Vikarská, ‘Czechs and Balances – If the Epidemiological Situation Allows …’, Verfassungsblog, 20 May 2020, https://verfassungsblog.de/czechs-andbalances-if-the-epidemiological-situation-allows/; and Jan Petrov, ‘COVID-19 Emergencies in the age of executive aggrandisement: what role for legislative and judicial checks?’ Theory and Practice of Legislation 8, no 1–2: 71–92. 45 Judgment of 20 April, 14 A 41/2020-111. 46 See eg the Decision of the Constitutional Court of 5 May 2020, Pl ÚS 10/20.

124  The Growing Tension within the Double-Headed Executive resolution because that resolution had been replaced in the meantime.47 Given the previously mentioned instability of governmental resolutions in response to the pandemic, they have remained unreviewable in practice and the question of their proportionality has been left completely to the Government’s discretion. IV.  THE QUEST TO DEPOLITICISE THE STATE ADMINISTRATION

While the system of public administration is not laid down in the Constitution, its structure and basic guiding principles are still of immense importance to the executive power’s practical functioning. The adoption of legislation concerning the civil service which would depoliticise and stabilise it was one of the requirements for the Czech Republic’s accession to the European Union. Thus, the Service Act48 was adopted in 2002 as a part of a bundle of measures designed to meet the Copenhagen criteria. It was scheduled to enter into force in 2004, but it soon became evident that the Act was not really wanted by the Czech political parties and the date of entry into force was postponed several times: first to 2005, then 2007, 2009, 2012 and finally 2015. In the meantime, the Czech administration, especially at the higher levels, suffered from instability and politicisation. It was not uncommon for a Minister, after a new Government was appointed, to replace not only the Deputy Ministers, but also lower-ranking secretaries and chiefs of departments, often on the basis of their political loyalty rather than their expertise. The positions of Deputy Ministers at key departments were also often part of political deals within coalition Governments. The administrative state thus could hardly become a fourth branch of government in such an environment. As of 2014 Czechia was the last EU Member State to lack acceptable regulation of the civil service. Only in 2014, after threats from the EU and after considerable pressure from President Zeman, was the new Civil Service Act adopted.49 Initially, it was supposed to be just an amendment of the original 2002 Act, but it gradually evolved into a completely new piece of legislation. While it formally fulfils all of the criteria for a modern, independent and stable civil service laid down by the EU, the resulting product was still subject to considerable criticism.

47 See

the Decision of the Constitutional Court of 16 June 2020, Pl ÚS 20/20. no 218/2002 Coll. 49 Law no 234/2014 Coll. 48 Law

Conclusion  125 That criticism was based mainly on arguments that the Act and the surrounding practice still did not provide sufficiently effective safeguards against the politicisation of the civil service and that the rules governing dismissal of civil servants were not robust enough.50 While there had probably not been enough time to appraise the effects of the Civil Service Act, a 2018 EU report still described the situation of the Czech civil service as ‘relatively bad’ with regard to values such as impartiality and professionalism.51 On the home front, President Zeman criticised the final shape of the Civil Service Act and even went so far as to submit the Act for review by the Constitutional Court. The President considered to be unconstitutional, amongst others, the existence of so-called ‘political Deputy Ministers’, the conditions for entry into public service or the public service’s structure. The Constitutional Court was however largely unconvinced by the President’s arguments and struck down only one minor provision of the Act. V. CONCLUSION

As we have shown, Czech executive power has come a long way since the provisions of the Constitution were drafted in late 1992. While the President’s position has gradually become significantly stronger, governments have suffered from a combination of legal and political obstacles that have had a negative impact on their stability. Since the 2012 constitutional amendments, the danger of an activist President who could not be held liable for his actions has seemed imminent. Unfortunately, it is quite challenging to find a remedy for this. Reform of the electoral system, which could, according to some, make governments more stable, does not seem to be in the offing, and even if a constitutionally acceptable reform were implemented, its effectiveness would be far from guaranteed. The instability of the political party system seems to have deeper roots, and without remedying it governments will probably still find themselves under pressure. Taming the President would require either a constitutional amendment or, at the very

50 See eg the policy paper by Frank Bold, ‘Briefing on Implementation of Civil Service Act, Czech Republic’, available at: https://en.frankbold.org/sites/default/files/tema/briefingcivil_service_act-2015-10-09_0.pdf. 51 See the chapter on Czechia in Nick Thijs and Gerhard Hammerschmid (eds), Public administration characteristics and performance in EU28 (Brussels: European Commission, 2018).

126  The Growing Tension within the Double-Headed Executive least, a concentrated effort from the other constitutional actors, including their willingness to bring the President before the Constitutional Court and risk the President’s wrath. Another important issue is the development of the civil service. While the Civil Service Act was finally adopted in 2014, the success of its implementation still cannot be fully assessed. FURTHER READING Balík, Stanislav and Vít Hloušek. ‘The development and transformation of the Czech party system after 1989’. Acta Politologica 8, no 2 (2016): 103–17. Hanley, Seán, ‘Dynamics of new party formation in the Czech Republic 1996–2010: looking for the origins of a “political earthquake”’. East European Politics 28, no 2 (2012): 119–43. Koudelka, Zdeněk. Prezident republiky, Prague: Leges, 2011. Kysela, Jan, and Zdeněk Kühn. ‘Presidential Elements in Government. The Czech Republic’. European Constitutional Law Review 3, no 1 (2007): 91–113. Wintr, Jan, Marek Antoš and Jan Kysela. ‘Direct Election of the President and its Constitutional and Political Consequences’. Acta Politologica 8, no 2 (2016): 145–63.

6 Local Governance Prague and pragocentrism – Self-administration – Generally Binding Ordinances – Local Exercise of the Assigned Public Administration – Directives – Municipalities – Regions – Local Elections – Local Taxes – EU Subsidies – Local Referendum – Decentralization

S

o far, we have discussed the functioning of the two political branches, the legislature and the executive. The President, both chambers of the Parliament, the Government as well as most ­central state bodies are seated in Prague. This is not surprising as Prague has always been the centre of political life in Czechia. In the 14th century it became the seat of a Holy Roman Emperor and de facto capital of Europe. It lost its European political importance, but since then it has retained a special status within Czechia. Virtually all state organs of inter-war Czechoslovakia, to the dismay of Slovaks, had their seats in Prague and were run by Czechs. The ‘centralisation agenda’ of the communist regime in the 1940s and 1950s further entrenched Prague’s position as a centre of political and economic power. Czechs and Slovaks even invented a new word, pragocentrism (pragocentrismus),1 to describe this trend. This dominance of Czechs and Prague in Czechoslovakia has backfired, however. Czechoslovakia came into being in 1918 as a unitary state called the Czechoslovak Republic (ČSR). After World War II, Czechoslovakia retained its official name, until the communist regime changed it to the Czechoslovak Socialist Republic (ČSSR) in 1960. Czechoslovakia remained a unitary state until 1969, when it became a federation of two states – the Czech Socialist Republic and the Slovak Socialist Republic. Federalisation of Czechoslovakia resulted from the growing dissatisfaction of Slovaks with the unitary state and their



1 This

word has always had a pejorative connotation, especially among Slovaks.

128  Local Governance yearning for greater autonomy, which led first to the clero-fascist Slovak state during World War II under the tutelage of Hitler’s Germany and, subsequently, to the successful federalisation of Czechoslovakia in 1969. Despite the federalisation, Czechoslovakia retained its name. This was not the end of the emancipation of Slovaks though. Shortly after the 1989 Velvet Revolution, the adjective ‘socialist’ was deleted and the country was renamed as the Czechoslovak Federal Republic in Czech and the Czecho-Slovak Federal Republic in Slovak. The hyphen in the Slovak version led to a bitter ‘hyphen-war’,2 in which the Czech and Slovak political leaders argued about the new official title. In the end, they agreed on the neutral title Czech and Slovak Federal Republic (ČSFR). However, the Czech and the Slovak Prime Ministers Václav Klaus and Vladimír Mečiar soon after decided that they would be better off as two independent states and agreed the dissolution of Czechoslovakia.3 Czechia thus returned to a unitary state arrangement in 1993. Despite this choice, this time Czech leaders envisaged the existence of so-called ‘higher self-governing units’ (regions) and granted them significant autonomy. The entrenchment of territorial self-government in the Czech Constitution was in fact an antidote to the communist doctrine of centralisation of state power and marked a clear discontinuity with the communist regime.4 The 1993 Czech Constitution thus clearly opted for the decentralisation of state power and treated territorial self-government as one of the cornerstones of the new democratic regime. In doing so it emphasised the subsidiarity of state power in matters of local interest.5 Territorial self-governing units are sometimes referred to as the ‘sixth power’ (the self-governing power) of the Czech state.6 Several scholars have even argued that the principle of territorial self-government is protected by the Czech Eternity Clause.7 However, it took some time before territorial self-governing units became important players in Czech politics.

2 See Chapter 3, Section V. 3 See Chapter 1, Section VI. 4 See Judgment of the Constitutional Court of 11 December 2007, Pl ÚS 45/06, Jirkov, § 24; Pavel Zářecký, ‘K některým otázkám ústavního zakotvení územní samosprávy’ Správní právo 51, nos 1–2 (2008): 13–23, in particular at 14–16. 5 See also Judgment of the Constitutional Court of 7 May 2013, Pl ÚS 20/16, § 15. 6 Karel Klíma, ‘Územní samospráva jako “šestá” moc podle Ústavy ČR?’, in Stanislav Kadečka (ed), Pocta Petru Průchovi (Prague: Vysoká škola aplikovaného práva, 2009), 103. 7 Vojtěch Šimíček, ‘Komentář k čl. 9’, in Lenka Bahýľová, Jan Filip, Pavel Molek et al (ed), Ústava České republiky: Komentář (Prague: Linde, 2010), 153–63; Pavel Molek, Materiální ohnisko jako věčný limit evropské integrace? (Brno: MUNI Press, 2014); and Pavel Rychetský et al, Ústava České republiky: Zákon o bezpečnosti České republiky: Komentář (Prague: Wolters Kluwer, 2015), 87.

The Centre and the Periphery  129 Regions – higher territorial self-governing units – were created only in 2000. The modern Municipality Act was also adopted in the same year. After these two important milestones, municipalities and regions still had to learn how to exercise their powers in full and then justify the expansive reading of territorial self-governance before the Constitutional Court. Boosted by EU funding, local governance eventually managed to defend its autonomy and entrench moderate decentralisation. I.  THE CENTRE AND THE PERIPHERY

Despite the strong gravitational effect of Prague and the resulting ‘pragocentrism’, coupled with relatively easy accessibility of the entire Czech territory from the capital,8 there has among Czechs traditionally been a strong sense of belonging to a local community. This has often been reflected in specific local dialects of the Czech language that allow for easy recognition of the speaker’s origins. Local communities became crucial in the late 19th and early 20th centuries as they served as bastions of Czech politics and the movement of emancipation from Habsburg rule. In fact, the self-governing municipality was the central topic of one of the first Czech political texts entitled ‘What is a municipality?’9 Local governance remained a central feature of inter-war Czechoslovakia, but it was significantly eroded by the centralisation efforts of the communist regime. It was revived only after the Velvet Revolution and it took yet another decade to build the necessary institutional framework for territorial self-government.10 Hence, even though Czechia is a unitary state, it has created selfgoverning units and granted them significant autonomy. Territorial self-governance is explicitly mentioned among the ‘fundamental principles’ in Chapter One of the Czech Constitution (Article 8) and the Constitution then devotes the whole of its Chapter Seven (Articles 99–105) to territorial self-government. The key provisions of the Czech Constitution concerning territorial self-government are the following. Article 8 stipulates that the right of self-governing territorial units to self-government is guaranteed and Article 100(1) provides that territorial self-governing units are 8 Unlike in Slovakia or Austria, there are no high mountain ranges that would make certain districts difficult to reach within a reasonable time. 9 Karel Havlíček Borovský, ‘Co jest obec’, Pražské nowiny (1846). 10 See Section III.

130  Local Governance territorial communities of citizens with the right to self-government. Finally, Article 104(3) stipulates that representative bodies of territorial self-governing units may, within the limits of their jurisdiction, issue generally binding ordinances. This gives them original legislative power in local matters. This means that the 1993 Constitution delegates two types of powers to territorial units: (1) the power of self-administration in certain areas, where the territorial unit remains free to adopt legislation (generally binding ordinances) if it wishes to do so (area of independent powers of self-administration); and (2) the exercise of public authority, where the territorial unit is obliged to act following detailed instruction issued by the central government. In this latter function, a territorial unit acts as a kind of decentralised body of the government (areas of exercise of the assigned public administration) and issues directives (nařízení obce or nařízení kraje).11 That was the Constitution on paper. The turning point came only in 2000, when the new Municipal Act was adopted and, more importantly, the regions as envisaged by the 1993 Constitution were eventually created. Higher self-governing units (regions) were established by the Constitutional Law Establishing Higher Territorial Self-governing Units in 1997,12 which came into force on 1 January 2000. This constitutional moment allowed for the recalibration of the division of power between the centre and the periphery. The new Municipal Act gave municipalities original legislative power, primarily in local matters concerning public order, organisation of cultural and sports events, cleanliness of the public space and other issues delegated by statute. Original legislative power of regions concerns primarily socio-economic development of their citizens, including schooling, tourism, culture and sports. Both municipalities and regions have their separate budgets that can be used to pursue big infrastructural projects such as roads and waste management systems and establish social service and health care facilities. They also support business and research in their area and engage in environmental protection. Municipalities can also establish municipal police. Apart from their independent competences, municipalities and regions also exercise delegated competences, where they act as an administrative organ subordinated to the relevant Ministry. These delegated competences include, in particular, building permits, decisions pursuant to zoning laws and environmental law permissions.

11 See

also Chapter 2, Section II. no 347/1997 Coll.

12 Law

The Structure of Territorial Self-Governance  131 This recalibration resulted in strategic litigation before the Constitutional Court. Here it suffices to say that after a shift in the Constitutional Court’s case law in the 2000s it is clear that the municipal independent (self-governing) competence flows directly from the Constitution and thus municipalities do not require express authorisation by the statute to issue a generally binding ordinance. This also means the municipalities may issue a generally binding ordinance even in an area already regulated by a statute, if the object and purpose of the given generally binding ordinance is different from the object and purpose of the statute. We discuss this shift in more detail in Section IV. In sum, from the standpoint of governance, Czechia is still a relatively centralised state. Initially, municipalities and regions could only regulate within their independent competence issues that were not covered by statutory law. If a statute regulated a certain issue, this de facto preempted local regulation. This has changed. Although self-governing units still have to operate within the boundaries set by law and cannot run against explicit statutory law, their generally binding ordinances may regulate the same issue if they pursue a different object and purpose. II.  THE STRUCTURE OF TERRITORIAL SELF-GOVERNANCE

Czech territorial self-government (územní samospráva) is achieved on two levels: municipalities (obce), which are the basic territorial self-governing units, and regions (kraje), which are the so-called higher territorial self-governing units (vyšší územně-samosprávné celky). In total, there are 14 higher territorial self-governing units. One of them is Prague, which is a higher territorial self-governing unit as well as being a municipality and the capital of the Republic.13 According to the Czech Statistical Office, there were 6253 municipalities in 2016. From the territorial point of view, regions established by the 1997 Constitutional Law closely follow the regions that existed in 1949–1960, and thus generally respect all the regional centres at the middle level. However, the new division into 14 small regions also generated some problems. First, while such division of Czechia reflects its historical development and traditional boundaries, in the end it was a political decision rather than a rational solution. The size of the regions and the

13 Article 13 of the Constitution and a special Law on the Capital City of Prague no 131/2000 Coll.

132  Local Governance number of their inhabitants vary significantly. For instance, the Carlsbad Region (Karlovarský kraj) has over 300,000 inhabitants, while Southern Moravia, Moravia-Silesia, Central Bohemia and Prague each have well over one million inhabitants. Such huge disparity creates problems in self-governance as well as in counting the votes in regional and parliamentary elections, where votes are counted and distributed per region and not nationwide. Secondly, the newly established 14 small self-governing regions differ territorially and organisationally from the eight larger administrative units (unfortunately also called ‘regions’) inherited from the communist era.14 These ‘larger regions’ served as the territorial districts for the judicial system and a number of specialised authorities of the state administration. This problem of parallel regions was solved only in 2021 when the ‘larger regions’ were abolished. III.  ELECTION OF MUNICIPAL AND REGIONAL BODIES

In general, local government is elected every four years. The first municipal elections after the Velvet Revolution took place in 1990, immediately after the communist-era national committees that replicated Soviet councils had been abolished. Regions were established later and thus the first regional elections took place in 2000. This means that there are local elections roughly every two years, once to municipalities and then to regions. Any EU citizen with permanent status in a given municipality or region may exercise the right to vote in local elections. In municipal elections, a municipal council is elected on the basis of a proportional electoral system. The municipal council (zastupitelstvo obce) then elects a municipal committee (rada obce), which is an executive organ, and the mayor (starosta), who represents the municipality. In regional elections, the same model is used. Citizens elect the regional council (zastupitelstvo kraje), which in turn elects from itself a regional committee (rada obce) and a governor (hejtman). Local elections follow the proportional electoral system, but this system differs significantly from the proportional electoral system used for elections to the Chamber of Deputies and employs far more majoritarian elements. This is possible due to the silence of the Constitution



14 Law

no 36/1960 Coll on Territorial Division of the State.

Direct Democracy at the Local Level  133 regarding the electoral system in local elections. Therefore, both the first-past-the-post system used in the Senate elections as well as the rigid proportional system applied in the elections of the Chamber of Deputies are in theory possible. Each voter has one voting ticket and has the same number of votes as the number of seats at the municipal (or regional) council. The voter can choose one party or individual candidates across political parties or use a combination of both. The votes are then counted and the seats allocated with the use of the D’Hondt formula. The legal electoral threshold of five per cent of the votes applies, similar to the elections in the Chamber of Deputies. This peculiar set of electoral rules creates the most convoluted electoral system used in Czechia. Some commentators even argue that it might be difficult for some voters to understand the consequences of their voting. IV.  DIRECT DEMOCRACY AT THE LOCAL LEVEL

Beyond the elections, one of the crucial tools enabling society to exercise its rights on local level is the referendum. Referenda can take place at both municipal and regional levels and can be either obligatory or optional. Local referenda are unique in the Czech constitutional system, which is sceptical of direct democracy and has not so far allowed for referenda at the national level, apart from the specific ad hoc constitutional referendum on accession to the EU. Hence, the local level is the only level of state governance at which the people can directly affect public affairs. However, the scope of matters that can be subject to a local referendum is still relatively small in Czechia. For instance, local referenda cannot concern local fees, the creation or recall of any municipal organ, or adoption of municipal generally binding ordinances. In contrast to some neighbouring countries such as Poland, it is also not possible to recall a mayor in a local referendum. Local referenda can be initiated by a municipal council or at the request of a proportion of eligible residents. This proportion varies according to the size of the municipality: 30 per cent in municipalities of up to 3,000 inhabitants; 20 per cent in those of up to 20,000 inhabitants; 10 per cent in those of up to 200,000 inhabitants; and 6 per cent in those of over 200,000 inhabitants. In general, a local referendum is valid if at least 35 per cent of eligible voters have participated in it. The result of a local referendum is binding only if one of the proposed solutions

134  Local Governance has obtained more than half of the valid votes and at the same time the number of valid votes were cast by more than 25 per cent of eligible voters. This complex formula for a local referendum to become binding creates a paradox – those voters who believe they are in the minority (and oppose the measure) may be better off if they do not vote at all, as the quorum for the validity of the referendum (35 per cent) is relatively high and in the larger cities it is almost impossible to get that many residents to the polling stations. In general, local referenda play their indisputable role in villages and smaller towns. In the larger cities it is very rare for a valid referendum to take place as the 35 per cent validity threshold in particular is very high. Local referenda failed to reach the validity threshold in, among other places, Brno, Olomouc and Ústí nad Labem. Two major local referenda that became binding in larger cities, one concerning the construction of a business mall in Pilsen and one concerning the siting of a town hall in Prague 7, succeeded in part because they took place concurrently with the first direct presidential elections in 2013. This ‘pairing’ of local referenda with national elections with a high turnout (presidential or parliamentary elections) is probably the only chance of reaching the quorum in the larger cities, but even then it is often a close call. V.  THE RISE OF THE MUNICIPAL POWER

The scope of the self-governing power has gradually been increased, mainly by the expansive reading of their powers by municipal authorities and, subsequently, through strategic litigation before the Constitutional Court. Until the creation of the regions and the adoption of the new Municipalities Act in 2000,15 the principle of territorial self-government was unfulfilled and often ignored by the central organs. Given the fact that the first term of the regional councils (2000–2004) was the era of learning by trial and error and of ‘regional and municipal institutionbuilding’, the territorial self-governing units (both the municipalities and the regions) started to be truly assertive and challenge the encroachment of the central authorities upon the constitutional principle of territorial self-government only in 2004–2008. This in turn led to the significant development in the Constitutional Court’s case law of vertical separation of powers and the scope of municipal authority.



15 Law

no 128/2000 Coll.

The Rise of the Municipal Power  135 The Constitutional Court’s early case law was relatively restrictive regarding the autonomy of territorial self-governing units and the scope of municipal authority. However, the Constitutional Court gradually expanded the scope of municipal authority in a series of judgments in 2005–200716 in which it developed the four-step test for review of generally binding ordinances that it has applied ever since.17 This four-step test consists of the following prongs: (1) whether the municipality had the competence to issue a given generally binding ordinance; (2) whether the municipality, by issuing a given generally binding ordinance, exceeded its material competence stipulated by law (that is whether it acted ultra vires); (3) whether the municipality, by issuing a given generally binding ordinance, abused the competence entrusted to it by the statute; and (4) whether a given generally binding ordinance is manifestly unreasonable.18 The Constitutional Court confirmed and explicitly explained this decisive shift19 in its case law in its Jirkov judgment,20 where it held, among other things, that (1) the municipal independent (self-governing) competence flows directly from the Constitution and thus municipalities do not require express authorisation by statute to issue generally binding ordinances;21 and that (2) municipalities may issue generally binding ordinances even in an area already regulated by a statute, if the object and purpose of the given ordinance are different from the object and purpose of the statute.22 Since then this has become settled case law. The Constitutional Court later held that territorial self-government units are key elements of the separation of powers, which guarantees greater liberty to individuals,23 and that ‘[s]elf-governing municipalities guarantee the principle of subsidiarity [of state power], according to which decision-making and responsibility in public matters should be executed at the lowest level of public authority, which is the nearest one

16 See Judgment of the Constitutional Court of 22 May 2007, Pl ÚS 30/06, Ostrov. 17 See Rychetský et al, Ústava České republiky, 1073 et seq (and especially § 8 of the commentary on Article 104). 18 See Judgment of the Constitutional Court of 22 March 2005, Pl ÚS 63/04, Prostějov. 19 Several commentators have discussed and approved this shift in the Constitutional Court’s case law. See Ivo Pospíšil, ‘Nejnovější judikatura Ústavního soudu k obecně závazným vyhláškám’, Časopis pro právní vědu a praxi 18, no 1 (2010): 51–9; and Jan Brož, ‘Obecně závazné vyhlášky (veřejný pořádek deset let od jirkovského nálezu)’, Právní rozhledy 26, no 9 (2018): 310–16. 20 Judgment of the Constitutional Court of 11 December 2007, Pl ÚS 45/06, Jirkov. 21 Ibid, §§ 26–7 (referring to the Constitutional Court’s earlier case law). 22 Ibid, § 34 (referring to the Constitutional Court’s earlier case law). 23 Judgment of the Constitutional Court of 9 August 2016, Pl ÚS 20/16, § 15.

136  Local Governance to the citizens’.24 In defining the scope of the constitutional right to territorial self-government it is thus ‘impossible to proceed solely from the wording of the statute, since the right to self-government also has a material aspect (or its own constitutional content) [and …] the implementing statute cannot empty or in effect eliminate the content of the constitutionally guaranteed right to territorial self-government’.25 This has two repercussions. First, the scope of territorial self-government ‘cannot be dependent just on the legislation, because it could lead to arbitrariness of the legislature and the violation of the principle of territorial selfgovernment itself, which is one of the basic values of a democratic state based on the rule of law’.26 Secondly, any limitation to the constitutional principle of territorial self-government must be applied restrictively.27 The Constitutional Court actually upheld several generally binding ordinances adopted under Article 10(a) of the Municipalities Act, which regulated matters of public order that were regulated by statute. More specifically, the Constitutional Court upheld generally binding ordinances concerning the regulation of lottery terminals and linked slot machines,28 the regulation of the use of pyrotechnics,29 the regulation of prostitution,30 the regulation of consumption of alcohol in public spaces,31 and accepted the generally binding ordinance regulating the opening hours of restaurants and bars.32 VI.  IT IS ALL ABOUT TAXES AND EU SUBSIDIES

The significant rise of local governance power in the 2000s would not have been possible without the securing of sufficient financing independent of the central governance. To put it bluntly, without money there is no local autonomy. While municipalities and regions generate their income from various sources such as local fees, dividends and gifts, they rely primarily on taxes and subsidies. Both of these main sources have witnessed an increase since the 2000s. 24 Ibid. 25 Judgment of the Constitutional Court of 20 February 2018, Pl ÚS 6/17, § 82. 26 Judgment of the Constitutional Court of 7 May 2013, III ÚS 1669/11. 27 Judgment of the Constitutional Court of 22 November 2016, III ÚS 2200/15, § 16. 28 See Judgment of the Constitutional Court of 14 June 2011, Pl ÚS 29/10 Chrastava. 29 Judgment of the Constitutional Court of 13 September 2006, Pl ÚS 57/05, Nový Bor. 30 See Judgment of the Constitutional Court of 13 March 2007, Pl ÚS 10/06, Plzeň. 31 See Judgment of the Constitutional Court of 7 September 2010, Pl ÚS 11/09, Jeseník. 32 See Judgment of the Constitutional Court of 2 November 2010, Pl ÚS 28/09, Břeclav, §§ 33–41.

It is All About Taxes and EU Subsidies  137 Allocation of taxes among the central State and the local units has been the subject of heated political debate and several changes. In general, local units have had their share of the income taxes paid by physical persons, entrepreneurs and corporations, and value added tax. In addition, property tax has always belonged exclusively to municipalities. In the 1990s, taxes were distributed on the local level via already abolished districts. This system contained strong motivational elements for municipalities, which had incentives to lure businesses to be established in their territory, and soon resulted in widening of the income inequality gap between the rich and poor districts. Large cities also benefited significantly from this system, which created further tensions and led to calls for greater solidarity between districts. The Parliament responded to these calls by improving solidarity in the 2001 reform and setting the municipalities’ share of income tax and value added tax at 20.59 per cent of the entire revenue from these taxes. The major criterion for distributing these taxes among municipalities was the number of a municipality’s inhabitants. The municipal share increased again in 2008, when it reached 21.4 per cent of overall income and valued added tax revenue.33 At the same time two new factors were introduced. First, apart from the number of inhabitants, the geographical size of the municipality also played a role. Secondly, a new mathematical formula made sure that the largest cities did not disproportionally benefit from the existing criteria. This move dramatically increased the income of smaller municipalities. For instance, the tax incomes of municipalities of under 100 inhabitants increased by 150 per cent.34 The municipal share of overall income and valued added tax revenue eventually reached 23.58 per cent in 2018. This steady rise in tax income at the municipal level has significantly increased municipal autonomy35 and allowed municipalities to pursue big infrastructural projects such as building roads, improving waste management and increasing environmental protection. Besides receiving a growing share of taxes, EU subsidies provided an additional boost to the financial autonomy of regions and municipalities. Already in the 1990s, as a candidate state, Czechia benefited heavily from the PHARE programme. Originally created in 1989 as 33 Ministry of the Interior of the Czech Republic, ‘V novém roce nové rozdělení daní pro obce’ January 2008, https://www.mvcr.cz/clanek/v-novem-roce-nove-rozdeleni-dani-proobce.aspx. 34 Ibid. 35 The regions’ share of overall income and value added tax revenue rose and eventually reached 8.92 per cent in 2018. See Ministry of the Interior of the Czech Republic, ‘V novém roce nové rozdělení daní pro obce’.

138  Local Governance ‘Poland and Hungary: Assistance for Restructuring their Economies’, PHARE expanded from Poland and Hungary to cover 10 countries, including Czechia, and became the EU’s key financial instrument helping Central and Eastern European states to strengthen public administration and invest in their economic development. In Czechia much of this money was channelled to municipalities and the newly created regions. Local self-governing bodies could also apply for financial support from the SAPARD (Special Accession Programme for Agriculture and Rural Development) and ISPA (Instrument for Structural Policies for Pre-Accession) programmes that aimed at improving infrastructure, agriculture and environmental protection in new EU Member States. Czech local authorities benefited tremendously from these three EU financial instruments in the accession period. After accession to the EU in 2004, Czech national and regional programmes received financial support from the European Structural and Investment Funds. Czechia is one of the largest net benefactors from this programme as it was allocated €24.2 billion from European Structural and Investment Funds over the 2014–2020 period.36 This budget was divided among the range of national and regional programmes. Local authorities again benefited enormously from these subsidies since around 50 per cent of the whole budget comes from the European Regional Development Programme. These funds are then made available to businesses, schools and universities, and NGOs as well as to local authorities via separate programmes run by each region in Czechia. Both of these factors – the increased share of local authorities in tax revenue as well as the steady flow of EU subsidies to the regional programmes – played in favour of regions and municipalities and gave them significant financial autonomy. The EU regional funds were a success and led to big improvements, especially in transport, waste management and education. However, the use of European structural funds by Czech local authorities has also had its dark side. As regions have not been under such strict media scrutiny as the national government and given the many loopholes in the rules of regional programmes, some entities have tried to play the system to receive subsidies which they would normally not have been eligible for. This led to mismanagement of some resources, corruption and subsidy fraud. The most famous

36 European Commission, ‘European Structural and Investment Funds: Czech Republic’, April 2016, https://ec.europa.eu/regional_policy/sources/policy/what/investment-policy/esifcountry-factsheet/esi_funds_country_factsheet_cz_en.pdf.

Local Self-Governance in the EU  139 scandal, called ‘Stork’s Nest’,37 implicated even Prime Minister Andrej Babiš and his family. This alleged subsidy fraud, despite several audits by the European Commission and the European Anti-Fraud Office (OLAF) investigation, is still pending before the Czech courts, but it exemplifies the massive problems in distributing EU subsidies in Czechia. VII.  LOCAL SELF-GOVERNANCE IN THE EU

Apart from financial support, Czechia’s accession to the EU contributed to the strengthening of local self-governance in two ways. First, the prospect of joining the EU played a part in the institutional reform of territorial self-governance in Czechia and in particular facilitated the creation of regions as mid-level units between municipalities and central state organs.38 After the accession, the need to manage and implement the EU structural funds led to further improvement of institutional structures. The second dimension of the EU’s impact on local government concerns subsidiarity, which requires the exercise of competences shared between the EU and the Member States as close as possible to the citizen. Since the Lisbon Treaty (2009), the subsidiarity principle has explicitly distinguished between the three levels of Member State action – central, regional and local – rather than treating the Member State as a whole. In doing so, the Lisbon Treaty acknowledged the competence of smaller territorial self-governance units to take part in governance and provided them with a direct voice within the EU’s institutional framework via the European Committee of the Regions. The Committee of the Regions is an assembly of local and regional representatives that gives sub-national authorities, such as Czech municipalities and regions, the opportunity to influence the EU’s legislative process. As about three quarters of EU legislation affects local or regional levels, local and regional representatives needed to have a say in the development of new EU laws. The Committee of the Regions has its say via opinions on draft EU laws (mainly directives and regulations) and resolutions addressed to the European Commission, Council of Ministers and European Parliament. Czechia has 12 representatives in

37 See eg James Shotter, ‘Czech prosecutor reopens Andrej Babis fraud probe’, Financial Times, 4 December 2019, https://www.ft.com/content/ffe1cfd0-16a3-11ea-9ee 4-11f260415385. 38 See Michael Baun, ‘EU Regional Policy and the Candidate States: Poland and the Czech Republic’, Journal of European Integration 24, no 3 (2002): 261–80.

140  Local Governance the Committee of the Regions who play a dual role – they inform the EU’s decision-making process about issues important to Czech regional and municipal authorities and at the same time promote the Committee of the Regions in Czechia. Beyond participation in the Committee of the Regions, all Czech regions maintain a representative office in Brussels. These offices serve as promotional points of reference for tourism and cultural events as well as focal points for communication between the regions and the EU administration. Their key aim is similar to that of the Committee of the Regions – to feed regional interests into EU policies and to keep residents informed about EU laws and policies. VIII.  CONCLUSION: TOWARDS MODERATE DECENTRALISATION

Municipalities have been central arenas of Czech public life since the mid-19th century. During the Austrian Empire Czechs did not enjoy autonomy at the state level and thus put their effort into the donkey work at the local level. This went hand in hand with a vibrant civil society that flourished in professional associations, learned societies, trade unions, the Scout Movement and various clubs. Local bodies and civil society eventually became an offspring of the Czech National Revival. This spirit prevailed also in inter-war Czechoslovakia. It suffered a big blow under the Protectorate during World War II and during communist rule. It took a while to revive local governance after the Velvet Revolution, but municipalities as well as the newly created regions gradually gained power and experience and by the late 2000s had become an important pillar of Czech constitutionalism. Importantly, territorial self-governance helped to overcome social apathy from the normalisation era after the crushing of the 1968 Prague Spring movement and enabled citizens to engage in the public life of their communities. Certainly, local bodies benefited from their increasing share of taxes and subsidies, from EU accession as well as from the gradually more and more ‘self-government friendly’ case-law of the Constitutional Court. But that is not the whole story. Local politicians exploited their proximity to the people and proved to be more responsive to local needs. Many citizens view local politics more favourably and as less partisan than national politics, especially in villages and smaller towns. As a result, local politicians enjoy greater trust of the Czech people than their colleagues in the Parliament. This attests to the successful decentralisation of state power after the fall of communism.

Further Reading   141 FURTHER READING Brož, Jan. ‘Obecně závazné vyhlášky (veřejný pořádek deset let od jirkovského nálezu)’. Právní rozhledy, 1/2018. Cogan, Rudolf. Zákon o krajích: komentář, 2nd edn. Prague: Wolters Kluwer, 2018. Kadeřábková, Jaroslava and Jitka Peková. Územní samospráva – udržitelný rozvoj a finance. Prague: Wolters Kluwer, 2012. Potěšil, Lukáš. Zákon o obcích: komentář. Prague: CH Beck, 2019. Průcha, Petr. Místní správa, 2nd edn. Brno: Masaryk University, 2018. Sládeček, Vladimír. Obecné správní právo, 4th edn. Prague: Wolters Kluwer, 2019. Zářecký, Pavel. ‘K některým otázkám ústavního zakotvení územní samosprávy’. Správní právo 51, nos 1–2 (2008): 13–23.

7 The Judicial Branch Constitutional Court – Supreme Court – Supreme Administrative Court – Civil and Criminal Courts – Administrative Courts – Prohibition of Special Courts and Tribunals – No Military Courts – Lustration of Judges – War of Courts – European Court of Justice – European Court of Human Rights – Judicial Politics – Ministry of Justice – Court Presidents – Judicial Associations – Judicialisation of Politics – Politicisation of the Judiciary

I

n order to understand judicial power in the Czech Republic it is necessary to know where it comes from, where it is now and where it is heading. Most importantly, there has been significant pathdependence within the Czech judicial system. The following formative events have shaped the Czech judiciary. First, before Czechoslovakia’s independence in 1918 the Czech lands had been part of the Habsburg Empire for almost three centuries. After World War I, the Austro-Hungarian monarchy collapsed and Czechs and Slovaks together formed an independent state: Czechoslovakia. That means that Czechs inherited the Austrian court system (and Slovaks the Hungarian one). The Czechs decided to retain the Austrian system of court administration, with the central role played by the Ministry of Justice, and created just two new apex courts, the Supreme Court and the Supreme Administrative Court. This model has prevailed, with few changes, until today. Secondly, Czechs consider inter-war Czechoslovakia to have been a ‘golden era’, and thus after the division of Czechoslovakia they have tended to resort to the inter-war judicial structures.1 This explains why Czechia revived the Supreme Administrative Court (while Slovakia did not until 2021), re-established the third tier of courts – the so-called



1 See

Chapter 1, Section IV.

The Judicial Branch  143 ‘high courts’ (while Slovakia did not), and vested significant appointment powers regarding ordinary judges, court presidents as well as justices of the Constitutional Court in the Czech President. The shadow of the inter-war era may also explain why Czechia opted for a stronger Constitutional Court than Slovakia and vested in it almost as many powers as the German Bundesverfassungsgerichtshof. Thirdly, the Communist Party of Czechoslovakia abused virtually all judicial accountability mechanisms during its reign (1948–1989). It abolished the inter-war Constitutional Court, the Supreme Administrative Court and the third tier of high courts; created the Special Court to settle the score with its political opponents and put ‘show trials’ under firm control; stripped ordinary courts of their jurisdiction over commercial cases and transferred those cases to a separate system of arbitrage courts; dismissed the sitting court presidents and replaced them with its own protégés; and packed the ordinary courts with ‘its’ lay judges. In order to maintain control over the judicial branch, the Communists subordinated the judiciary to the General Prosecutor, kept sitting judges on a short leash by forcing them to stand for retention election every four years, created an atmosphere of fear by sending ‘recalcitrant’ judges to jail to serve long prison sentences, and threatened others with relocation to remote areas and denial of promotion. This abuse not only created the impetus for many of the constitutional rules in the wake of the Velvet Revolution (such as the unlimited term of judicial office, prohibition of the relocation of judges without their consent, prohibition of impeachment and dismissal of a judge only upon a decision of the disciplinary court, the complete separation of judges and prosecutors, and the prohibition of special courts), but also – with a certain simplification – explains the almost paranoid feelings among judges with regard to the executive power. Moreover, the memory of how the Communists rigged the courts also explains the Czech Constitutional Court’s active stance on judicial reform. Fourthly, there has been deep distrust between the political branches and the judiciary, which has hampered any judicial reform since the dissolution of Czechoslovakia. It is no coincidence that Czechia is the only post-communist country in the CEE which has not established a high council of the judiciary and instead retained the ‘old-fashioned’ model of court administration with a central role for the Ministry of Justice. The Czech Parliament firmly rejected the constitutional bill which was supposed to introduce the judicial council model of court administration at its the first reading in 2000 and no one has tried again since. At the same time the Czech Constitutional Court struck down several

144  The Judicial Branch judicial reforms that would be considered constitutional in many (even neighbouring) European countries, such as the compulsory education of judges, the temporary assignment of judges to the Ministry of Justice and court presidents serving two consecutive terms of office. All of those factors resulted in a fragile balance within the Czech judicial system. Regarding the ordinary courts, Czechia entered a new era of bargaining between court presidents and the Ministry of Justice in the shadow of the law.2 As regards the Constitutional Court, a lot hinges on the personality of the President. While the Senate has rejected several candidates for the Constitutional Court, it is the President who primarily shapes the Court’s composition. I.  SETTING THE SCENE: KEY PLAYERS WITHIN CZECH JUDICIAL POLITICS

Discussing Czech judicial politics is not possible without identifying its de facto key players. As will be shown, it is not enough to look at the Constitution and the statutory law, as some of those players are rather informal bodies. Moreover, even with regard to formal organs written law does not tell us much about their real powers and mutual relations. In a nutshell, following the fall of the Austro-Hungarian Empire the Czechoslovak model of court administration always rested on two pillars – the Ministry of Justice and the court presidents.3 These two pillars did not change after the division of Czechoslovakia, since Czechia has not established a nationwide judicial council.4 In addition to the Ministry of Justice and the court presidents six more actors play parts in Czech judicial politics – the Czech President, the Government, the Parliament, the Constitutional Court, the judicial boards and the Judicial Union. This section will briefly sketch the roles of these eight players. Czech court presidents have accumulated significant powers over individual judges. They have the best overview of what is going on within the judiciary, may initiate disciplinary motions against individual judges, have a major say in the promotion of judges, and have gradually become gatekeepers to the judiciary as they also hand-pick new judges.

2 See Kosař, ‘Politics of Judicial Independence and Judicial Accountability in Czechia’. 3 See Michal Bobek, ‘The Administration of Courts in the Czech Republic – In Search of a Constitutional Balance’, European Public Law 16, no 2 (2010): 251–70, 252–4. 4 For an explanation of why it is so, see David Kosař, Perils of Judicial Self-Government (New York: Cambridge University Press, 2016), 182–5.

Setting the Scene: Key Players within Czech Judicial Politics  145 Court presidents play an intriguing dual role within the Czech judiciary – they act as both managers vested with the abovementioned administrative tasks and judges who decide cases like any other judge. Court presidents can thus exploit this ‘functional schizophrenia’ and portray any action against them by the executive as an attack on their judicial function and not just on their administrative role.5 The Ministry of Justice is the second key player. It has historically played the most important role in court administration and in holding judges to account. The inter-war Czechoslovak judiciary, based on the Austrian bureaucratic model, was strictly hierarchical and the Minister of Justice sat at the top of this hierarchy. During the communist era the Ministry became subservient to the General Prosecutor and the Communist Party. However, after the Velvet Revolution Czechia soon returned to the inter-war model and vested significant powers in the Ministry. The Minister of Justice formally plays a crucial role in selecting new judges, but due to their high turnover and information asymmetry most ministers outsourced the actual selection of new judges to court presidents. Similarly, the Minister of Justice de jure decides on many judicial career issues (such as promotion), but court presidents have de facto taken control of these mechanisms as well.6 The President of the Czech Republic also has a say in Czech judicial politics as the President de jure wields wide powers as regards the judiciary. According to the Czech Constitution, the President appoints all judges of the ordinary courts, presidents and vice-presidents of the Supreme Court and Supreme Administrative Court and, upon approval by the Senate, all judges of the Constitutional Court. Thus, the President de jure exercises a significant influence over both the ordinary courts and the Constitutional Court. In contrast to the Minister of Justice and the President, the Czech Government has very few powers regarding the judiciary. It has just one real power, and that is to approve the list of candidates for judicial office compiled by the Minister of Justice before that list is submitted to the President who formally appoints all judges in the Czech Republic. In practice, the Government has only rarely interfered with the Minister’s list. The Czech Parliament has even fewer powers over the careers of ordinary judges as it does not play any role in their selection, promotion or disciplining.



5 Kosař, 6 See

Perils of Judicial Self-Government. Kosař, ‘Politics of Judicial Independence’.

146  The Judicial Branch The Czech Constitutional Court, based upon the German centralised model of constitutional adjudication, is another important player. The fragmented political scene in Czechia makes the Constitutional Court even stronger. Judicial boards are ‘self-governing’ bodies as they consist of judges of a given court, but they have only advisory powers and court presidents are not bound by their advice. In sum, the powers of judicial boards are narrow and limited to a particular court. These boards thus should not be confused with a country-wide judicial council7 that exists in virtually all Central and Eastern European countries.8 Finally, the Judicial Union is a professional association of judges which represents approximately one third of Czech judges, most of whom come from lower courts. It has been particularly vocal in promoting the judicial council model of court administration and its members have taken a leading role in challenging judicial reforms before the Constitutional Court. These eight institutional players interact in many ways. Sometimes they cooperate, sometimes they fight each other. Their powers are not static. Their strength has been tested in many political battles and influenced by judgments of the Constitutional Court as well as by statutory amendments. II.  WHO ARE THE CZECH JUDGES?

The judiciary is a ‘they’, not an ‘it’.9 In order to understand the Czech judicial reforms, conflicts between the Supreme Court and the Constitutional Court, the distrust between politicians and judges, and Czech judicial politics in general it is necessary to know who Czech judges are. To answer this question, we need to go back to the turbulent era after the Velvet Revolution. Soon after the Velvet Revolution, the Czechoslovak political leaders created the Federal Constitutional Court, which was supposed to serve as a guardian of the new democratic order. After the dissolution

7 Adam Blisa, Tereza Papoušková and Marína Urbániková, ‘Judicial Self-Government in Czechia: Europe’s Black Sheep?’ German Law Journal 19, no 7 (2018): 1951–76. 8 See David Kosař, ‘Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self Governance in Europe’, German Law Journal 19, no 7 (2018): 1567–612. 9 See Adrian Vermeule, ‘The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division’, Journal of Contemporary. Legal Issues 14, no 2 (2004–2005): 549–84.

Who are the Czech Judges?  147 of Czechoslovakia, the Czech Constitutional Court, with even greater powers than its federal predecessor,10 fulfilled the same role. Czech post-communist political leaders faced a dilemma regarding whether to purge the ordinary judiciary. Despite the severe shortage of lawyers untainted by cooperation with the previous regime, they eventually implemented almost every known purging mechanism leading to judicial turnover. These measures ranged from lustration and retention elections to disciplinary proceedings for violating judicial duty and the criminal prosecution of judges implicated in judicial murders in the 1950s. However, these mechanisms proved to be rather ineffective, due to a lack of evidence (criminal prosecution), rigid protectionist interpretation by the Supreme Court of the violation of the judicial duty (transitional disciplinary motions), a shortage of judges (retention elections), or because they came into play only after the affected judges had left the judiciary (lustration). In sum, purges within the Czech judiciary after the Velvet Revolution were minimal. As a result, Czechia, like many other transitional countries in Central and Eastern Europe, has witnessed the phenomenon described as a ‘sandwich scenario’.11 After the Velvet Revolution it established a specialised constitutional court and filled it with former dissidents, emigrants and lawyers who had not collaborated with the Communist regime. This brand new court then acted as an agent of change and a ‘downstream consolidator of democracy’.12 In contrast to the dissidentpacked Constitutional Court, the ordinary judiciary faced only limited purges. Judges who were active during the Communist era thus not only remained on the bench, but also held positions in the higher echelons of the judiciary due to their seniority. More specifically, in 2018 the presidents of the Supreme Court and Supreme Administrative Court and of the High Court in Prague were still former members of or candidates for the Communist Party. The number of Communist-era judges remaining at top courts is also ­striking. In 2018 the updated list published by the Ministry showed that 13.5 per cent of all active members of the judiciary had joined the Communist Party prior to 1989.13 Most of the judges with a communist 10 See Kosař and Vyhnánek, ‘The Constitutional Court of Czechia’. 11 Kosař, Perils of Judicial Self-Government, 107. 12 See Tom Ginsburg, ‘Courts and New Democracies: Recent Works’, Law & Social Inquiry 37, no 3 (2012): 720–42, 729–35. 13 Ministry of Justice, list of judges – former members of the Communist Party of Czechoslovakia, first published on 7 January 2011, updated on 17 November 2018. Available at: https://www.justice.cz/web/msp/clenstvi-v-ksc1.

148  The Judicial Branch past were on the benches of the Supreme Court (37 per cent), the High Court in Olomouc (34 per cent) and the Regional Court in Prague (27 per cent).14 In contrast, the percentage of ex-communists among judges of district courts has been relatively low. In 2018 most district courts had fewer than 15 per cent of judges with a communist past. The relatively high number of former Communist Party members among judges at the top courts results from the design of Czech transitional justice mechanisms. While all post-Velvet Revolution judges had to undergo lustration, mere membership of the Communist Party of Czechoslovakia has not been an obstacle to holding judicial office according to the Large Lustration Law.15 Slowly but surely, however, new judges who graduated from post-communist law schools, some of whom had also studied law abroad, started to fill the lower echelons of the judiciary. This means that judges appointed after the fall of communism sat in the lower courts and in the constitutional court, whereas judges who were appointed in the communist era occupied the seats at appellate courts and at the Supreme Court. In other words, communist old timers were ‘sandwiched’ by the new blood, especially in the 1990s and 2000s. It is not difficult to guess what often happened in this configuration. First, alliances between natural partners emerged. Progressive decisions of lower courts were often reversed by the appellate courts and decisions of the appellate courts were often affirmed by the Supreme Court, but the Constitutional Court often stepped in and sided with the lower courts. Secondly, it explains a conflict, usually called the ‘war of courts’, between the Constitutional Court and the Supreme Court.16 Thirdly, the sandwich scenario also explains why Czech politicians have been unwilling to accept a strong judicial self-governance and create a judicial council. They simply did not want to give significant powers to the unreformed judiciary from the communist era. The ‘sandwich’ was eroded only in the late 2010s and the early 2020s. As many communist-era judges retired, post-communist judges started to penetrate the higher echelons of the Czech judiciary as well as the key positions of court presidents. At the same time, the recruitment process was also modified. In contrast to the 1990s and 2000s, Czechia no longer faces a shortage of judges and only a few vacancies emerge each year.

14 Ibid, and iRozhlas, ‘Každý sedmý současný soudce byl před rokem 1989 členem KSČ’, iRozhlas, 17 November 2018, https://www.irozhlas.cz/zpravy-domov/soudci-clenstvi-v-ksc_ 1811170600_pek. 15 On transitional justice mechanisms, see Chapter 1, Section V. 16 See below.

The Constitutional Court  149 The selection of new judges has become more competitive and transparent, which in turn has increased the importance of merit as well as the quality of new judges. These concurrent trends have steadily affected the composition of the Czech judiciary. III.  THE CONSTITUTIONAL COURT

The Constitutional Court was established in 1993 after the short life of the Constitutional Court of the Czech and Slovak Federal Republic (hereinafter the ‘Federal Court’) had come to an end due to the dissolution of Czechoslovakia. The Constitutional Court began work in July 1993 and delivered its first decision in December 1993. The Constitutional Court is not part of the system of ordinary courts. It is based upon the centralised model of constitutional review, and its sole task17 is the review of constitutionality (as opposed to the review of legality exercised by ordinary courts). It is seated in Brno, a city 200 km from Prague, which ensures a healthy ‘geographic separation of powers’. The Court is composed of 15 Justices, who are appointed by the President upon the approval of the Senate. The length of their term of office is 10 years and is renewable. The combination of these two features, the ‘American model’ of selection of Justices coupled with the renewable term, is unique in Europe. As regards procedure, the Constitutional Court acts either in plenary session (Plénum) or in four panels, each consisting of three Associate Justices. Its jurisdiction is broad. It is generally assumed that when drafting the provisions concerning the Constitutional Court in 1992 the Czech constitution-makers were also significantly inspired by the German Basic Law and constitutional system. Thus, it is possible, with a certain degree of simplification, to state that the jurisdiction of the Constitutional Court mirrors that of the German Federal Constitutional Court. For the purposes of this book it is sufficient to mention the three most important spheres of its jurisdiction: (1) ‘abstract’ constitutional review; (2) ‘concrete’ constitutional review; and (3) individual constitutional complaints. Both in the abstract and concrete reviews of constitutionality the Constitutional Court reviews the compatibility of an Act of Parliament (or other legal norm of lesser rank), or individual provisions 17 Apart from specific procedures such as separation of powers issues, election disputes, impeachment of the President etc. See generally Tom Ginsburg and Zachary Elkins, ‘Ancillary Powers of Constitutional Courts’, Texas Law Review 87 (2008–2009): 1431–61.

150  The Judicial Branch thereof, with the constitutional order of the Czech Republic. The first distinction lies in the fact that, in contrast to the concrete constitutional review, the abstract review is not incidental to a specific dispute before ordinary courts. In other words, using the terminology of common law systems, abstract review does not require a ‘case and controversy’. Secondly, the right of audience in abstract review is limited to ‘privileged dignitaries’, such as the President, groups of MPs or senators, and the Government. In concrete review, any court that reaches the conclusion that a legal norm upon which its decision depends is not compatible with the constitutional order must discontinue the proceedings and certify the question of compatibility of the law with the constitutional order to the Constitutional Court. Therefore, the Constitutional Court passes judgment on the validity of the law and remits the case to the ordinary court. The ordinary court then delivers the ruling on the matter in the light of the Constitutional Court’s conclusions. In contrast to abstract and concrete constitutional review discussed above, a constitutional complaint can be lodged by any person asserting that their fundamental rights and basic freedoms guaranteed in the constitutional order have been violated. An individual constitutional complaint can be lodged against any act of a public authority, including court decisions and measures taken by administrative agencies. As regards the nature and effect of the Constitutional Court’s decisions it is necessary to distinguish between abstract review, concrete review and individual complaints. In abstract review, if the Constitutional Court finds that a petition proposing the annulment of a statute (or a provision thereof) is well founded, it annuls the contested statute in whole or in part. Generally, the provision is annulled from the day the decision is published in the Collection of Laws (ie with ex nunc effect), unless the Constitutional Court decides otherwise. As stated above, in concrete review of constitutionality, a decision of the Constitutional Court finding incompatibility with the constitutional order is followed by the return of the case file to the ordinary court. Similarly, in the individual constitutional complaint procedure, if the decision of the ordinary courts is quashed the case file is remitted to the ordinary court. In order to understand which rulings of the Constitutional Court have precedential effects, it is crucial to remind that the Law on the Constitutional Court recognises two basic forms of ruling: a judgment (nález) and a decision in a narrow sense (usnesení). In addition, the Court may adopt an opinion (stanovisko), which is, however, not considered to be a ruling in the proper sense. A judgment is issued if the Court rules on

The Constitutional Court  151 the merits of the case, ie typically when it decides on the conformity of the challenged judicial decision or a piece of legislation with the constitutional order. Judgments are therefore a more important, but much less frequently used, form of ruling. Decisions are employed in virtually all other cases, most importantly for procedural reasons (staying the proceeding, recusing a Justice etc) or when the Court dismisses a petition pursuant as ‘manifestly ill-founded’. The latter category of decisions is often called ‘quasi-meritorious rulings’,18 but the Court strictly distinguishes between judgments and decisions irrespective of the fact that some decisions (quasi-meritorious rulings) are functionally very similar to judgments. Finally, opinions are adopted by the whole court (plénum) if there is divergent case law (but only if the divergence concerns judgments) which needs to be unified and settled. All the Constitutional Court’s judgments are binding on all governmental bodies, courts and persons. This means that they have erga omnes effect. However, there has been an ongoing debate about which part of the Constitutional Court’s judgments is actually binding. While some commentators still claim that only the finding of the judgment is binding on the lower courts and other entities, the prevailing view is that both the finding and the reasoning of the Constitutional Court are binding. The Court itself vigorously defends this view and refers to it as the ‘precedential effects’ (precedenční účinky) of its judgments.19 In sum, apart from the mode of appointment of Justices the basic features of the Constitutional Court resemble those of the German Federal Constitutional Court.20 Most importantly, the Constitutional Court is entitled not only to exercise concrete review of constitutionality and to decide on individual constitutional complaints, but also to review legislation in the abstract. However, the ‘American model’ of selection of the Constitutional Court’s Justices makes a huge difference. The fact that the Czech President is the only nominating organ means that the President de facto creates their ‘own’ Court. The position of the President is further strengthened by the fact that there is no staggered system of appointing Justices, and thus virtually the entire Constitutional Court is replaced every 10 years. Moreover, the Czech President also unilaterally decides who, from among the Justices, will become the Constitutional Court’s President and Vice-Presidents. 18 Jaroslav Benák, ‘K povaze usnesení Ústavního soudu, jímž se odmítá ústavní stížnost jako zjevně neopodstatněná’, Soudní rozhledy 15, no 4 (2009): 126–9. 19 See Chapter 2, Section VI. 20 See Werner Heun, The Constitution of Germany: A Contextual Analysis (Oxford: Hart, 2011).

152  The Judicial Branch As a result of this peculiar institutional design, every Czech President (Václav Havel, Václav Klaus and Miloš Zeman) has appointed almost the entire Constitutional Court at the beginning of his first term.21 Not surprisingly, the first Constitutional Court (1993–2002) is often referred to as ‘Havel’s Court’, the second (2003–2012) as ‘Klaus’s Court’ and the third (2013–now) as ‘Zeman’s Court’. Despite these labels, none of these Presidents fully utilised these powers and each relied on his advisers, who have so far always proposed a relatively balanced and diverse Court. Moreover, the Senate has rejected the most controversial candidates, sometimes even repeatedly, and thus effectively constrained the Czech President. In terms of its impact on Czech society, the Constitutional Court has steadily risen to prominence. While it delivered several important judgments in the 1990s, few of them shook up the political establishment in Prague. The Court showed its teeth in the 2002 Euro Amendment judgment (Pl ÚS 36/01),22 in which it effectively disregarded a constitutional amendment adopted by the Parliament and interpreted the Czech Constitution as if such amendment had never taken place. However, it demonstrated its full potential only a few years later. In the 2009 Melčák judgment23 the Constitutional Court adopted the doctrine of unconstitutional constitutional amendments and annulled the constitutional law shortening the fifth term of office of the Chamber of Deputies, which was adopted in order to find the quickest way to hold snap elections.24 In 2010–2012 it struck down several austerity measures adopted by the centre-right coalition in the wake of the global financial crisis. In 2012 the Constitutional Court challenged even the Court of Justice of the EU (CJEU) by finding its Landtová judgment25 ultra vires. This series of judgments in 2009–2012 makes it clear that the Constitutional Court has become a powerful institution that all actors need to take seriously. We discuss these cases and their consequences in more detail in Chapter 2 and the Conclusion of this book.

21 Note that while Václav Havel and Miloš Zeman appointed all 15 Justices, Václav Klaus (due to the death in office of the Chief Justice of the ‘Havel’s Court’ and the early resignations of two more judges) ‘inherited’ three of Havel’s appointees and himself appointed only 12 Justices. 22 Judgment of the Constitutional Court of 25 June 2002, n Pl ÚS 36/01. 23 Judgment of the Constitutional Court of 10 September 2009, n Pl ÚS 27/09. 24 See Yaniv Roznai, ‘Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act’, Vienna Journal on International Constitutional Law 8, no 1 (2014): 29–57. 25 Judgment of the CJEU of 22 June 2011, C-399/09.

Basic Features of the Ordinary Judiciary  153 IV.  BASIC FEATURES OF THE ORDINARY JUDICIARY

Apart from the Constitutional Court, the Czech judicial system consists of the ordinary courts and the administrative courts (see Scheme No 1). Czechia faced a shortage of judges during the 1990s, but this problem has resolved itself due to the significant increase in judicial salaries in the 2000s, and there are currently approximately 3,000 judges in Czechia. Judges are by far the best paid public s­ ervants, partly due to their successful litigation on judicial salaries before the Constitutional Court, and there is fierce competition for every vacancy in the judiciary. Figure 1  Czech court system Ordinary courts

Administrative courts Supreme Administrative Court

Supreme Court

(Krajské Soudy) 1st instance courts, Appellate courts,

Appeal

1st instance courts in administrative cases

District Courts (Okresní Soudy)

Constitutional Court (Ústavní Soud)

Judicial institution of constitutionality protection.

es) as tiv ec tra mi nis ad n( tio ssa

Regional Courts

Court of cassation, 1st and final instance Extraordinary appeal (dovolání)

High Courts

(Vrchní Soudy) Appellate courts (civil and criminal cases)

Appeal

(Nejvyšší Správní Soud)

Court of final instance (civil and criminal cases)

Ca

Extraordinary appeal (dovolání)

(Nejvyšší Soud)

Competence: 1. Constitutional complaints 2. Abstract constitutional review (expost facto or repressive control), 3. Concrete constitutional review, 4. Proceedings on the compliance of international treaties with constitutional law, 5. Cases concerning impeachment of the President or his incapacity to hold office, 6. Disputes concerning a Member of Parliament’s election or eligibility for office, 7. Jurisdictional disputes between state bodies and self-governing regions, 8. Proceedings concerning measures necessary to implement a decision of an international tribunal.

1st instance courts (civil and criminal cases)

Source: ACA-Europe, http://www.aca-europe.eu/en/eurtour/eurtour_en2.lasso?page=detail& countryid=25.

The Czech judicial system is recognised as having a professional career judiciary. There is no trial by jury. However, laypeople sit as judges in chambers (two lay judges sit with a professional judge) in a limited number of disputes, hearing cases at first instance in criminal and labour law. Those laypeople are elected by municipal assemblies. Appellate and Supreme courts’ chambers are composed of professional judges only, with the exception of the Disciplinary Court. Judges of ordinary courts are appointed by the President of the Republic. They must be at least 30 years of age at the time of ­appointment,

154  The Judicial Branch must have completed an MA degree in law and three years of practising law. Judges are appointed indefinitely, but they must step down once they reach compulsory retirement age, which is currently set at 70. Until they turn 70, they can be removed only following disciplinary proceedings conducted by the Disciplinary Court. On paper, there is limited judicial self-governance. The state administration of the courts is formally exercised by the Ministry of Justice and involves such crucial elements as the courts’ budgeting, the selection and promotion of judges, and the appointment of presidents and vice-presidents of the courts. This form of court administration has repeatedly been criticised on the international as well as the domestic stage. In practice, though, the Ministry of Justice outsourced many decisions concerning court administration to court presidents. This eventually led to a peculiar Czech model of judicial self-governance.26 V.  CIVIL AND CRIMINAL COURTS

Civil and criminal courts share the same judicial structure. Together, they form the courts of general jurisdiction (obecné soudnictví) and are competent in all types of disputes, with the exception of those expressly reserved for the administrative courts or the Constitutional Court. The system of civil and criminal courts forms the backbone of the Czech judicial order. It consists of four tiers: 86 district courts, eight regional courts, two high courts (one located in Prague with jurisdiction over Bohemia and the other in Olomouc with jurisdiction over Moravia) and the Supreme Court. As a rule, there is a three-tier procedure. Most cases start at the district courts, the decisions of which can be appealed (odvolání) on points of both law and fact before the regional courts. Subsequently, any of the parties to the dispute may lodge an extraordinary appeal (dovolání) to the Supreme Court, which decides only on points of law. The most complex civil and commercial disputes as well as criminal trials concerning most serious crimes (punishable by at least five years’ imprisonment) start at the regional court level and the two high courts serve as the courts of appeal. Decisions of the high courts can then also be challenged before the Supreme Court. This four-tier system is rather complex, given the fact that Czechia is a relatively small country and a unitary state. Moreover, the communist

26 See Adam Blisa, Tereza Papoušková and Marína Urbániková, ‘Judicial Self-Government in Czechia: Europe’s Black Sheep?’, German Law Journal 19, no 7 (2018): 1951–76.

Administrative Courts  155 regime, under the banner of the ‘simplification of law’ agenda,27 had abolished the high court tier soon after the communist coup d’état in 1948 and high courts were revived only by the 1993 Czech Constitution. This begs the question why the Czech parliament revived two high courts then at all. A careful contextual analysis of the events in the early 1990s shows that the reintroduction of high courts was driven primarily by the need to create a new office for a key pro-Havel figure within the ordinary judiciary and was not a carefully engineered and well thought-out institutional change.28 Not surprisingly, this unsystematic reintroduction of the high court tier into the Czech judicial system has met with strong criticism and many politicians have tried to abolish the high courts. However, given the practical implications, the need to amend the Constitution and the lack of will of the parliamentary majority to engage with a complex restructuring of the Czech judicial system, this proposal has never found enough support to take effect. VI.  ADMINISTRATIVE COURTS

The inter-war Supreme Administrative Court of Czechoslovakia significantly shaped Czechoslovak public law. After the 1948 coup d’état the Communist regime abolished the Court because the Communist Party did not wish to have its acts reviewed by an independent court. The drafters of the democratic 1993 Constitution of the Czech Republic built on the inter-war tradition and explicitly envisaged the creation of the Supreme Administrative Court. However, it was 10 years before the it came into being. Politicians had other priorities in the 1990s and it was only the judgment of the Czech Constitutional Court that struck down as insufficient the part of the Civil Code of Procedure dealing with judicial review of administrative action29 which forced them to act. As a result, the Supreme Administrative Court was eventually established on 1 January 2003. The 2002 Code of Administrative Justice set up a two-tier system of administrative courts. Specialised administrative chambers or specialised 27 On the ideal of the simplicity of law in the communist legal theory see John Hazard, Communists and Their Law (Chicago, IL, and London: University of Chicago Press, 1969), 103–26. 28 For further details see Kosař, Perils of Judicial Self-Government, 163–4. 29 Judgment of the Constitutional Court of 27 June 2001, n Pl ÚS 16/99. Quite interestingly, the Constitutional Court relied on the ECtHR case law concerning Article 6 ECHR, because Article 36(2) of the Charter, which lays down the constitutional foundation of administrative judiciary, does not require the ‘full jurisdiction’ with regard to review of administrative acts.

156  The Judicial Branch judges sitting alone at regional courts decide administrative law cases at first instance. The Supreme Administrative Court (Nejvyšší správní soud) decides primarily on cassation complaints against the decisions of regional courts in administrative law matters. Apart from ruling on cassation complaints the Supreme Administrative Court, among other things, also decides on electoral issues, the dissolution of and other matters relating to political parties, and on some conflicts of competence between administrative authorities. Moreover, the Supreme Administrative Court hosts two special judicial bodies, the ‘Disciplinary Court’ and the ‘Competence Chamber’. The task of the administrative courts is to protect individual rights in the area of public law. They provide protection not only against decisions of an administrative authority, but also against inaction and unlawful interference by an administrative authority. The creation of the Supreme Administrative Court resulted in a double-headed judiciary and led to healthy rivalry between the Supreme Court and the Supreme Administrative Court, both seated in Brno. Each court has adopted a different hiring strategy, built a different public image and developed a distinct identity. The Supreme Court is more conservative, prioritises professional judges from lower courts, sticks to legal formalism and its judges communicate with the media rather reluctantly. In contrast, the Supreme Administrative Court is more open to ‘lateral’ appointment from among advocates and law professors, stresses discursive reasoning and works with EU law on a regular basis, and is very open to the media as well as the public. The Supreme Administrative Court is also sometimes referred to as the ‘Constitutional Court light’ and is one of the main pools from which Constitutional Court Justices are selected.30 In terms of its impact on the lower courts, the Supreme Administrative Court’s influence has however been limited. While the Supreme Administrative Court specialises exclusively in administrative law, there are no special lower administrative tribunals. The specialised chambers of regional courts deciding on administrative matters operate within the civil and criminal courts and are under their governance. It is also necessary to add that the number of administrative judges at the regional courts is much lower (approximately 10 per cent) than the number of criminal law (approximately 23 per cent) and civil law (approximately 67 per cent) judges. Overall, administrative judges form only 4 per cent of 30 While only two former Supreme Court judges sit on the ‘Third’ Constitutional Court, there are three former Supreme Administrative Court judges (including the Vice-President of the Constitutional Court).

Prohibition of Special Courts and Tribunals  157 the Czech judiciary. Given their increased case load and the importance of the disputes against the state, especially in the new Covid-19 era, the role of administrative courts has increased. Administrative judges at the regional court level decide well over 10,000 cases per year and the Supreme Administrative Court disposes more than 4,000 cases per year.31 VII.  PROHIBITION OF SPECIAL COURTS AND TRIBUNALS

There are no special courts and no military tribunals in the Czech Republic. What is more, the Czech Constitution prohibits the creation of any special tribunal, as its Article 91(1) explicitly stipulates what courts the Czech court system consists of.32 This is a direct response to the abuse of special courts, in particular the so-called ‘State Court’ (Státní soud), by the Communist regime.33 Military courts were abolished a year after the division of Czechoslovakia34 and likewise cannot be revived without constitutional amendment. The current constitutional framework thus blocks several potential reforms of the Czech judicial system. For instance, the current system of administrative courts cannot be complemented by the specialised tribunals in asylum or competition law. Similarly, the Czech Parliament, unless it musters a constitutional majority, is unable to create military courts, arguably even in times of war. Finally, the constitutional prohibition of special courts also challenges the existence of two special judicial bodies that are formally attached to the Supreme Administrative Court but have a different status and different composition from the standard Supreme Administrative Court chambers. The ‘Disciplinary Court’ (kárný soud) decides on disciplinary motions against judges, public prosecutors and enforcement agents. The composition of its chambers varies, but these chambers always consist of both judges and non-judges, which is a unique feature of the Czech apex courts. The ‘Competence Chamber’ (zvláštní senát) is called upon to decide jurisdictional disputes between the civil courts on the one hand and the administrative courts on

31 All data taken from the 2019 Annual Statistical Report on the Czech Judiciary compiled by the Ministry of Justice. 32 See Article 91(1) of the Czech Constitution. 33 For further details see Zdeněk Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (Leiden: Martinus Nijhoff, 2011), 26–7, 98–9 and 102–3. 34 See Article 110 of the Czech Constitution.

158  The Judicial Branch the other. It consists of three judges of the Supreme Court (representing the civil law viewpoint) and three judges of the Supreme Administrative Court (representing the public law viewpoint). Without explicit constitutional entrenchment, the constitutional status of these two judicial bodies remains dubious. VIII.  THE WAR(S) OF THE COURTS

The introduction of the Constitutional Court with its purposive interpretation and value-laden reasoning immediately led to a clash with the Supreme Court. The main battleground of the so-called ‘war of the courts’ (válka soudů) became the interpretation of Article 269(1) of the Criminal Code concerning the conscientious objector status of Jehovah’s Witnesses. While the Supreme Court held that every single evasion of military service is a new criminal act, the Constitutional Court found this position unconstitutional for violation of the freedom of conscience and the principle of ne bis in idem. The Supreme Court refused to apply the Constitutional Court’s judgments until 1999, when it eventually buckled under the growing pressure. The scars have remained, however, and the relationship between these two courts has always been tense. The Supreme Administrative Court has generally been far more receptive of the Constitutional Court’s case law. However, the two soon ended up waging another ‘war of the courts’, this time with a European dimension. In a seemingly technical issue the two courts disagreed on the calculation of the pensions of Czech citizens who (before the division of Czechoslovakia) had worked on the territory of Slovakia. In the 2000s their pensions were lower than those of Czech citizens who had worked in Czech territory before the split. The Supreme Administrative Court traced through the relevant statutes and found this pension gap, however unfortunate, to be in conformity with the applicable Czech law, EU law and international social security treaties. The Constitutional Court found this situation unjust and repeatedly held that the pensions had to be equalised by reason of the specific circumstances of the dissolution of Slovakia. The Supreme Administrative Court refused to follow this case law and kept giving other reasons for its original position. The rupture was further exacerbated when the Constitutional Court in one of its judgments in the so-called ‘Slovak Pension Saga’ suggested that judges of the Supreme Administrative Court who failed to apply its case law should be disciplined. This seemingly technical dispute touched upon much deeper disagreements. What was at stake in the Czech discourse

Czech Courts and European Supranational Courts  159 was the conceptualization of the division of Czechoslovakia and defining the contours of Czech constitutional identity.35 However, most European scholars know of only a later sequel in the ‘Slovak Pension Saga’. The Supreme Administrative Court thought that it had found a winner in 2009 and submitted a preliminary reference to the CJEU suggesting that levelling the pensions of Czechs working in the pre-split Slovakia violated the principle of non-discrimination guaranteed by the EU Directives. The CJEU in the Landtová judgment (C-399/09) agreed with the Supreme Administrative Court and thus became (perhaps unknowingly) a proxy in the domestic war of the courts. However, the Constitutional Court fought back and found the CJEU’s judgment ultra vires. The Supreme Administrative Court submitted another preliminary reference to the CJEU, but this time Czech politicians stepped in. In order to prevent further embarrassment at the EU level and stop this litigation for good, they resolved this issue by out-of-court settlement. In sum, the support of the Constitutional Court by the two apex ordinary courts is not unconditional, and both the Supreme Court and the Supreme Administrative Court have had strained relationships with the Constitutional Court at times. The rifts are deep and it will not be easy to overcome them. Both wars of the courts also show that the Constitutional Court is powerful and often has the last word, but its position is more fragile than it seems at first sight. IX.  CZECH COURTS AND EUROPEAN SUPRANATIONAL COURTS: A COMPLICATED RELATIONSHIP

All Czech courts, including the Constitutional Court, have to engage with EU law and the European Convention on Human Rights (ECHR). Therefore, they must also inevitably work with the case law of the CJEU and the European Court of Human Rights (ECtHR, based in Strasbourg). The Strasbourg jurisprudence has heavily influenced the Constitutional Court, whereas the CJEU has affected primarily ordinary courts, and the administrative courts in particular. However, both supranational courts have also met with some resistance. Czech judges became acquainted with the ECtHR’s reasoning a decade before the CJEU came into the picture. They started to work with



35 See

also Chapter 1, Section VII.

160  The Judicial Branch the Strasbourg case law in 1992, when the then Czechoslovakia ratified the ECHR. In general, Czech courts have embraced the Strasbourg jurisprudence, but two problems emerged, one concerning apex courts and another permeating the lower courts. The apex courts have been particularly keen on using the ECtHR’s case law to expand their mandate and legitimise their actions against the political branches. The Constitutional Court even constitutionalised the ECHR in 2002 and has used it as a benchmark for the constitutional review of statutes ever since.36 Yet it has very reluctantly accepted the Strasbourg case law in the areas of discrimination law and custody of children. The problem affecting the lower courts is of a different kind – they tend to ignore the ECHR and the ECtHR’s case law, sometimes due to the language barrier, sometimes due to the sense that this task is for the higher courts and sometimes due to the belief that domestic norms are prima facie Convention-conforming. As a result, the Strasbourg jurisprudence has radiated to the lower courts only to a limited extent.37 EU law started to penetrate the Czech legal order well before formal accession, but the CJEU’s case law became binding and widely used only in 2004.38 In general, the Czech ordinary courts have adopted a eurofriendly interpretation of Czech law and followed the Luxembourg jurisprudence. Even the Constitutional Court initially showed significant openness to EU law. The Constitutional Court’s 2006 European Arrest Warrant judgment is a typical example of its euro-friendliness. In that judgment the Court made it clear that the obligation to interpret domestic law in a manner consistent with EU law applies even to interpretation of the Czech constitutional order. More specifically, the Constitutional Court found the European Arrest Warrant framework constitutional despite the clear wording of Article 14(4) of the Charter of Fundamental Rights and Freedoms, which explicitly guarantees that no citizen may be forced to leave their homeland. Similarly, in the 2009 Lisbon Treaty II judgment the Constitutional Court adopted a very eurofriendly interpretation of the Czech constitutional order, and in doing so it distanced itself from the rather assertive Lissabon-Urteil of the Bundesverfassungsgericht. It eventually found the Lisbon Treaty to be

36 David Kosař et al, Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance (Abingdon: Routledge, 2020). 37 Jan Kratochvíl, ‘Subsidiarity of Human Rights in Practice: The Relationship between the Constitutional Court and Lower Courts in Czechia’, Netherlands Quarterly of Human Rights 31, no 1 (2019): 69–84. 38 See also Chapter 1, Section VIII.

Constitutional Politics of the Judicial Branch  161 in conformity with the Czech constitutional order and thereby lifted the last major obstacle to the entry into force of the Lisbon Treaty. However, just two years later the Constitutional Court made it to the headlines of virtually all European newspapers as it dropped a bombshell onto the European constitutional landscape. In the Holubec judgment, delivered in reaction to the Landtová judgment of the Court of Justice of the EU of June 2011, the Constitutional Court found the Landtová judgment ultra vires. In doing so the Constitutional Court for the first time in the history of European integration clearly and openly declared an EU act ultra vires and thus not applicable on national territory.39 Since then the Constitutional Court has danced around the CJEU and EU law more generally. After the reshuffle of its Justices in 2013 the new ‘Zeman Court’ seems to be more euro-friendly, but the Constitutional Court still has not submitted a single preliminary reference to the CJEU and has avoided discussion about the constitutional rank of the EU Charter of Fundamental Rights. X.  CONSTITUTIONAL POLITICS OF THE JUDICIAL BRANCH

There has been no consensus on structuring the Czech judiciary since the early 1990s. In fact, the relationship between politicians and judges has grown more hostile over time. As a result, virtually any ‘judicial design issue’ ends up before the Constitutional Court and that Court has adopted the most stringent level of judicial review in these matters. The interferences of the Constitutional Court in ‘judicial design issues’ are so numerous that it is impossible to deal with all of them here.40 However, three areas have been particularly contested: (1) the appointment and dismissal of court presidents; (2) the (non-)establishment of a judicial council; and (3) judicial salaries. The single most contested issue concerning the judicial branch has been the power of the Ministry of Justice and the Czech President to dismiss court presidents. This is not surprising, given the role of court presidents under communism and due to their significant powers

39 See Jan Komárek, ‘Playing with matches: The Czech Constitutional Court declares a judgment of the Court of Justice of the EU ultra vires’, European Constitutional Law Review 8, no 2 (2012): 323–37; and Robert Zbíral, ‘Czech Constitutional Court, Judgment of 31 January 2012, Pl ÚS 5/12: A Legal Revolution or Negligible Episode? Court of Justice Decision Proclaimed Ultra Vires’, Common Market Law Review 49, no 4 (2012): 1475–91. 40 For a snapshot of these interventions see Bobek, ‘The Administration of Courts’.

162  The Judicial Branch nowadays. During the communist era, court presidents operated as the ‘transmission belts’ of the Communist Party, and their main role was to ‘transmit’ orders to individual judges in sensitive cases. This was in theory possible until the early 2000s as well, since Czech Ministers of Justice41 could, de jure, dismiss court presidents without providing any reason for so doing. However, even in the 1990s the political costs of dismissing court presidents became extremely high and every Minister of Justice actually needed court presidents in order to carry out meaningful policy decisions and to make well-informed decisions on promotions and other personnel matters. The ‘transmission belt’ argument thus de facto did not work. But that was not the end of the emancipation process. Czech court presidents started to challenge their dismissal before administrative courts and the Constitutional Court, and eventually won. When in 2006 the then Czech President, Václav Klaus, dismissed Iva Brožová from the position of President of the Supreme Court, the Constitutional Court not only found this dismissal unconstitutional and de facto reinstated Iva Brožová into the helm of the Supreme Court, but also struck down Article 106 of the Czech Law on Courts and Judges, declaring that it was unconstitutional for the executive to dismiss court presidents. However, the Czech Parliament fought back and introduced limited terms for all court presidents (ten years for the presidents of apex courts and seven years for other court presidents). This means that the Minister of Justice and the Czech President lost their power to dismiss court presidents, but they can reshuffle court presidents every seven (ten) years. Czech judicial politics have thus entered a new era characterised by a fragile balance and bargaining between court presidents and the Ministry of Justice in the shadow of the law. The second and related contested ground has been the model of court administration in general. As mentioned above, the attempt to create the judicial council failed in 2000. Since then the Constitutional Court has repeatedly stressed that the current model of state administration of the courts is deficient and pushed for the establishment of the judicial council. More specifically, it has held that as long as there is no judicial council there can be no judicial performance evaluation and the assignment of any judge to the Supreme Court is subject to the consent of the Supreme 41 Note that the ‘transmission belt’ argument has a different twist regarding the apex courts, where it was the Czech President (and not the Minister of Justice) who could, de jure, recall the presidents of the Supreme Court and the Supreme Administrative Court. However, the logic remains the same.

Constitutional Politics of the Judicial Branch  163 Court president. This fear of executive influence on the judiciary also led the Constitutional Court to the conclusion that the temporary assignment of judges to the Ministry of Justice, a mechanism common in many continental legal systems including France and Germany, is unconstitutional in the Czech context. In these judgments the Constitutional Court nudged the Parliament to amend the Constitution and transfer the current powers of the Minister of Justice and the Czech President to the newly created judicial council. However, this appeal has not so far found support among politicians. The third heavily contested issue is judicial salaries. In fact, the Constitutional Court issued 16 judgments concerning judicial salaries between 1999 and 2016. While it is true that the Czech Parliament reduced, froze or changed the calculation of judicial salaries many times, it often did so for legitimate reasons, such as the severe floods in the late 1990s and the financial crisis in the late 2000s. Moreover, to the credit of the Czech Parliament, it has never targeted only judges even though judges are the highest paid civil servants in Czechia. It has always adopted the across-the-board pay-cuts that affected virtually all civil servants and, on several occasions, it applied smaller reductions (5 per cent) to judges than to the rest of the civil service (10 per cent). However, the Constitutional Court has always sided with judges and found all judicial salary reductions unconstitutional irrespective of their purpose and context. What is more, it has adopted such bold position despite the fact that the Czech Constitution is silent on this issue and does not, in contrast to those of the United States and many other jurisdictions, contain any explicit prohibition on reducing judicial salaries. This case law on judicial salaries had two main effects. On the one hand, the salaries of Czech judges rose incrementally even in times when the salaries of other civil servants (including prosecutors) decreased, which makes judicial office a significantly more lucrative position than most legal professions, with the sole exception of international law firms and celebrity advocates. This in turn attracts the top talent to the judiciary. On the other hand, this controversial case law has led to resentment of judges not only among politicians, but also within the civil service and the public. Even a district court judge at the beginning of her career in her early thirties now earns more than a long-serving civil servant who is responsible for hundreds of employees or runs the entire state organ. Not surprisingly, top civil servants find the gap between their salaries and those of judges unjustifiable. This resentment might eventually backfire against judges if a constitutional crisis, similar to the one in Orbán’s Hungary and Kaczyński’s Poland, should occur.

164  The Judicial Branch XI.  CONCLUSION: FROM THE JUDICIALISATION OF POLITICS TO THE POLITICISATION OF THE JUDICIARY

Czech courts have grown in power over the last 25 years. To name just a few examples, in 2002 the Constitutional Court reinterpreted the Euro Amendment of the Constitution and constitutionalised the ECHR. Seven years later it adopted the doctrine of unconstitutional constitutional amendment and struck down the constitutional law calling for a snap parliamentary election. In doing so it postponed the election and altered the entire Czech political scene. In 2010 the Supreme Administrative Court dissolved the Workers Party for violating the Czech democratic order, and between 2010 and 2012 the Constitutional Court struck down several austerity measures adopted by the centre-right coalition in the wake of the global financial crisis. As in many other countries, the Czech courts have judicialised virtually every aspect of Czech politics. At the same time, the Czech judiciary has gradually become emancipated from the executive. Court presidents challenged their dismissal before administrative courts and the Constitutional Court and they eventually won. They took control over the selection as well as the promotion of judges. Judges themselves then successfully prevented any cut to their salaries, even in times of financial crisis. Such rise of judicial power could not go unnoticed in Prague. Savvy politicians soon realised that the Constitutional Court and ordinary courts are important players and they took action. The growing importance of the Constitutional Court led to the severe politicisation of appointments of its Justices in the 2010s, at a level unparalleled in comparison to the 2000s.42 The last reshuffle of Constitutional Court membership in 2013–2015 also showed that voting in individual cases affects Justices’ career prospects. Those Justices who voted against the church restitution rightly assuming the rise of social democrats to power in the upcoming parliamentary elections were reappointed, whereas those who voted to uphold church restitution were rejected by the Senate controlled by the social democrats. Similarly, the fact that court presidents wield significant power over the rank-and-file judges within the ordinary courts became widely known and, as a result, any appointment of a court president (from the level of the regional courts and above) 42 For a detailed account of the relatively calm appointment process in the 1990s and the 2000s see Zdeněk Kühn and Jan Kysela, ‘Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic’ European Constitutional Law Review 2, no 2 (2006): 183–208.

Further Reading  165 became politicised and closely followed by the media. Finally, Czechia has also witnessed the first attempts of interference with judicial independence by politicians.43 FURTHER READING Blisa, Adam, Tereza Papoušková and Marína Urbániková. ‘Judicial Self-Government in Czechia: Europe’s Black Sheep?’. German Law Journal 19, no 7 (2018): 1951–76. Bobek, Michal. ‘The Administration of Courts in the Czech Republic – In Search of a Constitutional Balance’. European Public Law 16, no 2 (2010): 251–70. Bobek, Michal. ‘Judicial Selection, Lay Participation, and Judicial Culture in the Czech Republic: A Study in a Central European (Non)Transformation’, in Sophie Turenne (ed), Fair Reflection of Society in Judicial Systems: A Comparative Study. Cham: Springer, 2015, 121–46. Komárek, Jan. ‘Playing with matches: The Czech Constitutional Court declares a judgment of the Court of Justice of the EU ultra vires’. European Constitutional Law Review 8, no 2 (2012): 323–37. Kosař, David. Perils of Judicial Self-Government. New York: Cambridge University Press, 2016. Kosař, David. ‘Politics of Judicial Independence and Judicial Accountability in Czechia: Bargaining in the Shadow of the Law between Court Presidents and the Ministry of Justice’. European Constitutional Law Review 13, no 1 (2017): 96–123. Kosař, David, and Ladislav Vyhnánek. ‘The Constitutional Court of Czechia’, in Armin von Bogdandy, Peter Huber and Christoph Grabenwarter (ed), The Max Planck Handbooks in European Public Law, Vol. III: Constitutional Adjudication: Institutions. Oxford: Oxford University Press, 2020, 119–82. Kühn, Zdeněk. The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? Leiden: Martinus Nijhoff, 2011. Kühn, Zdeněk and Jan Kysela. ‘Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic’. European Journal of Constitutional Law 2, no 2 (2006): 183–208. Wagnerová, Eliška. ‘Position of Judges in the Czech Republic’, in Jiři Přibáň, Pauline Roberts and James Young (eds), Systems of Justice in Transition: Central European Experiences Since 1989. Aldershot: Ashgate, 2003, 163–79. Zbíral, Robert. ‘Czech Constitutional Court, Judgment of 31 January 2012, Pl ÚS 5/12: A Legal Revolution or Negligible Episode? Court of Justice Decision Proclaimed Ultra Vires’. Common Market Law Review 49, no 4 (2012): 1475–91.



43 See

Conclusion, Section V.

8 Human Rights Constitutionalism Charter 77 – Constitutional Entrenchment of Fundamental Rights – Constitutional Review – Judicial Review – Ombudsman – Absolute Rights – Human Dignity – Proportionality – Social Rights – Rational Basis Test – Positive Obligations – Horizontal Application of Fundamental Rights (Drittwirkung) – Judicial Activism – International Human Rights Law – European Court of Human Rights

A

s we explained in Chapter 1, the trajectory of the Czech constitutional project was – for a number of internal and external reasons – quite straightforward. It was clear from the beginning that the new constitutional system had to be built on liberal democratic principles and that constitutional entrenchment of human rights would be one of the cornerstones of Czech constitutionalism. Human rights protection had played a special role even in the events and social movements before the Velvet Revolution. For instance, Charter 77, the most important dissident project of the communist era,1 was actually a project concerning human rights, challenging the communist regime’s failure to deliver on its promises after the ratification of the International Covenant on Civil and Political Rights (ICCPR). The opening paragraphs of Charter 77 are quite telling: In the Czechoslovak Register of Laws No. 120 of October 13, 1976, texts were published of the International Covenant on Civil and Political Rights, and of the International Covenant on Economic, Social and Cultural Rights, which were signed on behalf of our republic in 1968, reiterated at Helsinki in 1975 and came into force in our country on March 23, 1976. From that date our citizens have enjoyed the rights, and our state the duties, ensuing from them. The human rights and freedoms underwritten by these covenants constitute

1 See Jonathan Bolton, Worlds of Dissent: Charter 77, The Plastic People of the Universe, and Czech Culture under Communism (Cambridge, MA: Harvard University Press, 2012).

Human Rights Constitutionalism  167 features of civilized life for which many progressive movements have striven throughout history and whose codification could greatly assist humane developments in our society. We accordingly welcome the Czechoslovak Socialist Republic’s accession to those agreements. Their publication, however, serves as a powerful reminder of the extent to which basic human rights in our country exist, regrettably, on paper alone. The right to freedom of expression, for example, guaranteed by Article 19 of the first-mentioned covenant, is in our case purely illusory. Tens of thousands of our citizens are prevented from working in their own fields for the sole reason that they hold views differing from official ones, and are discriminated against and harassed in all kinds of ways by the authorities and public organizations. Deprived as they are of any means to defend themselves, they become victims of a virtual apartheid.

The text of Charter 77, even though it never obtained mass support, still fulfilled an extremely important function in the one and a half decades between its creation and the eventual drafting of the Czech constitution. It served as a hub project around which various dissident groups gathered and it inspired many subsequent dissident actions, such as the Committee for the Defence of the Unjustly Prosecuted, which supported dissidents who were persecuted by the State. Many of the new post-1989 elites recruited themselves from the Charter 77 circles and therefore the emphasis on human rights in the new constitutional documents was understandable. The previous ‘socialist’ constitution and its treatment of human rights were considered unacceptable and a consensus was reached that a brand new document had to be formed. However, it soon became clear that human rights protection and its position in the emerging constitutional system could be a contentious issue. Most importantly, a rift emerged between the more ‘idealist’ wing of the political spectrum (comprising especially former dissidents, Charter 77 circles and Václav Havel) and the ‘pragmatic’ wing (personified predominantly by the Civic Democratic Party chairman and future Prime Minister Václav Klaus). During the federal intermezzo (1989–1992), and especially before the 1992 parliamentary elections and thus before Klaus and his Civic Democratic Party reached the peak of their power, this rift was more or less a dormant issue. The Charter of Fundamental Rights and Freedoms was adopted on 9 January 1991 without serious opposition and it was formally introduced into the Czechoslovak legal order by a special Constitutional Law.2 But shortly afterwards, during the process of

2 Constitutional

Law no 23/1991.

168  Human Rights Constitutionalism dissolution of Czechoslovakia and preparation of the new independent Czech constitutional order,3 human right became a matter of controversy. Klaus, backed by his Civic Democratic Party and by his smaller coalition partner, the Civic Democratic Alliance, vehemently opposed the incorporation of the Charter in the new constitution, going as far as to call human rights ‘constitutional weed’. This rhetoric signified Klaus’s general attitude to the rule of law aspects of constitutionalism (such as judicial independence or generally judicial oversight of the legislative and executive powers in general). He was a proponent of a more democratic-procedural or ‘political’ version of constitutionalism. Given the importance of Klaus in Czech politics between 1990 and 2013, his political positions were partly responsible for many of the most important political-constitutional disputes in the Czech history.4 As a way out of the impending deadlock the following compromise was conjured up. The Charter would not be incorporated in the Constitution itself. Rather, it would be kept as a separate document and the Constitution would mention that it forms a part of the ‘constitutional order’ – a broader concept that includes all constitutional laws.5 This was obviously only a formal victory for Klaus, as the normative power of the Charter remained unchanged. However, this petty dispute itself foreshadowed many future ones. I.  THE CHARTER AND THE REST: THE PLURALIST NATURE OF HUMAN RIGHTS PROTECTION IN CZECHIA

After 1 January 1993 (ie after the entry into force of the Czech Constitution and the whole ‘constitutional order’), the Charter has formed a core of the Czech system of human rights protection. Yet it has not been the only relevant constitutional document dealing with human rights. The drafters of the Czech Constitution opted for an interesting model, even though not an unprecedented one.6 The Constitution recognised a special category of international treaties: the so-called ‘international human rights treaties’.7 International human rights treaties were not only

3 See Chapter 2, Section I. 4 See also Chapter 2. 5 See Chapter 2. 6 Compare eg the position of the European Convention on Human Rights in Austria. 7 Article 10 of the Constitution prior to the changes made by Constitutional Law no 395/2001.

The Charter and the Rest  169 automatically incorporated into the Czech legal order upon ratification, but they also could be used as a benchmark for constitutional review of statutory law by the Constitutional Court. The Czech Constitution thus adopted a monist approach to international human rights treaties. As regards all other treaties, a dualist approach was chosen until the adoption of Constitutional Law no 395/2001.8 In practice, the European Convention on Human Rights (ECHR) has proven to be by far the most important of international human rights treaties. Generally speaking, international human rights treaties, the case law of international human rights bodies, and to some extent even comparative human rights case law have had tremendous impact on the Czech human rights landscape in the last three decades.9 Interestingly, the above-described position of international human rights treaties in the Czech constitutional order was challenged by Constitutional Law no 395/2001 (colloquially known as the Euro Amendment). Following this constitutional amendment, the Czech Constitution switched to a monist approach to all international treaties, primarily aiming to facilitate the smooth functioning of EU law within the domestic legal order. The Euro Amendment introduced a rule that all promulgated treaties, which Parliament has consented to ratify and by which the Czech Republic is bound, form a part of the Czech legal order and take precedence over statutes.10 Secondly, since international human rights treaties have ceased – from the constitutional point of view – to form a special category of international treaties, the Czech Constitutional Court has lost its authority to review whether national legislation conforms to standards set by them. This competence of the Czech Constitutional Court was functionally replaced by the authority of ordinary courts to apply any international treaty directly (including, but not limited to, international human rights treaties) in cases where the treaty conflicted with a domestic statute. However, the Constitutional Court did not take this change lightly. It held that this constitutional amendment, or rather its most obvious interpretation, could effectively lead to a violation of the basic principles of the Czech Constitution protected by the Eternity Clause, because it had the potential to limit an already achieved procedural level of fundamental rights protection. Based on these considerations, the Czech Constitutional Court refused to acknowledge the effects of the

8 See

also Chapter 2, Section IV. Section VI below for details. 10 Article 10 of the Czech Constitution. See also Chapter 3. 9 See

170  Human Rights Constitutionalism Euro Amendment. It re-interpreted the concept of constitutional order contained in the Czech Constitution11 in such a way that it implicitly includes international human rights treaties. Thus, the Constitutional Court has effectively created a back door through which it returned to international human rights treaties the status they had allegedly lost and has acted ever since as if it was still allowed to review the conformity of domestic legislation with international human rights treaties. Notwithstanding the importance of international human rights instruments in the Czech constitutional order, the Charter deserves special attention. At first glance, it is a very ambitious document. First, it contains the standard list of human, civil and political rights, which is very similar to the content of the ECHR, the ICCPR and many western bills of rights.12 Besides that, a fairly detailed regulation of the right to legal and judicial protection (sometimes colloquially dubbed ‘the right to fair trial’) is found in Part 5 of the Charter. But Part 3 (rights of national and ethnic minorities) and especially Part 4 (economic, social and cultural rights) set the Charter apart from its international and western inspirations. The extensive protection of economic, social and cultural rights can be attributed both to the time of the Charter’s adoption (indeed, it seems that constitutions adopted during the third wave of democratisation in Central and Eastern Europe and South Africa all share an emphasis on socio-economic rights) and to the sentiments of the Czech people, who have traditionally placed a lot of emphasis on social rights and equality.13 In fact, Czechia is one of the most economically egalitarian countries in the World. The World Bank currently ranks Czechia as the second most income egalitarian country in the world, which – especially when coupled with a relatively high level of GDP per capita – suggests that social and economic equality is considered an important value. II.  HOW TO CHALLENGE THE STATE: CONSTITUTIONAL REVIEW, GENERAL COURTS, ADMINISTRATIVE REVIEW AND THE OMBUDSMAN

The constitutional order has entrenched a robust institutional system of fundamental rights protection. While it is generally accepted that it is a

11 Article

112(1) of the Czech Constitution. 2 of the Charter. 13 See Chapter 1 and the discussion on the implicit welfare state principle in Chapter 3. 12 Section

How to Challenge the State  171 constitutional duty of the state as a whole and of all bodies exercising public authority to uphold and respect fundamental rights and freedoms, several institutions stand out in this regard. First, Article 4 of the Constitution stipulates that ‘[f]undamental rights and basic freedoms shall enjoy the protection of judicial bodies’. It applies both to the Constitutional Court and the ordinary courts but, given that the Constitutional Court’s powers concerning fundamental rights and freedoms are explicitly set out in the Constitution,14 it is especially relevant with regard to the latter. This provision is not a purely declaratory or programmatic norm. It has been interpreted by the Constitutional Court as giving rise to certain obligations of the courts and it is heavily used as interpretative guidance with regard to other legal provisions. For example, the Constitutional Court has based its ‘subsidiarity doctrine’ in constitutional complaints proceedings partly on Article 4 of the Constitution. According to the subsidiarity doctrine, the Constitutional Court views itself as the last, but not the only, institution responsible for fundamental rights protection. It consequently requires that ordinary courts use all the tools at their disposal to enforce fundamental rights. General courts are – as a rule – bound by statutory law15 and do not possess the power of judicial review. Therefore, when faced with a case in which the statutory rule at hand violates a certain fundamental right or freedom, they cannot simply set aside the statutory rule and apply the constitutional rule instead. In such a case, the ordinary courts can implement one of three basic approaches: one of those is explicitly provided for in the Constitution and the remaining two have been developed in ‘dialogical’ case law of the Constitutional Court and the ordinary courts. The most obvious option is based on Article 95(2) of the Constitution, which stipulates that an ordinary court, should it come to the conclusion that a statute which should be applied in the resolution of a case is in conflict with the constitutional order, shall submit the matter to the Constitutional Court.16 This is not an original solution, but a procedural one inspired by the Italian and German examples. However, numerous Constitutional Court rulings make it clear that ordinary courts should resort to this option only in cases where they cannot resolve the matter at hand through interpretation.17 14 Article 87 of the Constitution. 15 Though they are not bound by executive acts and can review their conformity with statutory legislation and the constitutional order. 16 See the discussion of concrete review below. 17 See eg the Judgment of the Constitutional Court of 27 June 2017, Pl ÚS 22/16.

172  Human Rights Constitutionalism The second and possibly most common solution to the above mentioned judicial dilemma is thus overcoming the prima facie conflict between the statutory rule and the fundamental right by implementing the so-called ‘constitution-conforming’ interpretation. In other words, if there are several ways of interpreting a certain provision (some of which would lead to an infringement of a fundamental right), the court has a constitutional duty to use the interpretation that leads to conformity with the fundamental right in question. The notion of ‘constitutionconforming’ interpretation and its wide applicability are closely tied to the Constitutional Court’s general preference of purposive interpretation (or construction) over textualism.18 While this doctrine is uncontroversial on its face, it is interesting to note the extent to which it is used in practice. The contentious issue is, of course, finding the line between those conflicts that can be resolved through interpretation and those that cannot. The case law of the Constitutional Courts seems to push the ordinary courts (but also the Constitutional Court itself) towards non-textualist and sometimes even creative interpretation. In numerous cases it has held that the statutory text is merely ‘an initial approximation of the norm’s meaning’ and that courts are obliged – if necessary – to prefer the purpose of the norm or even come up with a prima facie ‘anti-textual’ interpretation.19 Thus, in many cases, ordinary courts may resolve a conflict between the explicit wording of statutory legislation and a fundamental right by effectively ‘overwriting’ the text via a constitution-conforming interpretation.20 The third option, developed in the case law of the Supreme Administrative Court,21 is used quite rarely and only in very specific circumstances: ie in cases where there is an unconstitutional gap in statutory legislation. In other words, if a court comes to the conclusion that a fundamental right is violated by legislative inactivity and holds that there is an unconstitutional gap, it fills the gap by directly applying a constitutional rule that fits. However, judicial practice seems to be far from settled in this regard, since this approach has been adopted only by the Supreme Administrative Court. Moreover, one of the aforementioned options (interpretation or referral to the Constitutional Court) 18 Zdeněk Kühn, ‘The Constitutional Court of the Czech Republic’, in András Jakab, Arthur Dyevre and Giulio Itzcovich (eds), Comparative Constitutional Reasoning (Cambridge: Cambridge University Press, 2017), 199–236. 19 See eg the Judgment of the Constitutional Court of 28 March 2006, Pl ÚS 42/03. 20 On this phenomenon, see Scott Stephenson, ‘Against Interpretation as an Alternative to Invalidation’, Federal Law Review 48, no 1 (2020): 46–74. 21 Judgment of the Supreme Administrative Court of 13 June 2008, 2 As 9/2008.

How to Challenge the State  173 could theoretically also be used to deal with the problem of an unconstitutional gap. A perfect example is the approach of the South African Constitutional Court, which declared the Promotion of Access to Information Act invalid to the extent to which it was inconsistent with the Constitution by failing to provide for the recording, preservation and reasonable disclosure of information on the private funding of political parties and independent candidates.22 The Czech Constitutional Court, on the other hand, has explicitly rejected the possibility of invalidating a statutory law in cases where its unconstitutionality is caused by a gap.23 Amongst the ordinary courts, the administrative courts enjoy a special position with regard to fundamental rights protection. According to law, they are entrusted with the protection of so-called ‘public rights’,24 ie individual rights vis-à-vis public authority. Administrative courts thus oversee a wide array of possible executive power infringements of fundamental rights and enjoy full jurisdiction (within the meaning of Article 6 ECHR) over administrative acts. In this capacity, administrative courts have the indispensable role of filtering the matters that eventually reach the Constitutional Court via constitutional complaint. Besides its general administrative jurisdiction, the Supreme Administrative Court has original jurisdiction in most nationwide and European electoral matters and matters concerning political parties, whereas regional administrative courts review regional and municipal elections. While the importance of ordinary courts in the system of human rights protection should not be downplayed, the Constitutional Court has undoubtedly played the role of key human rights guardian both in the process of transformation and during the later epoch of Czech constitutional history. It was established with an extensive set of powers. The most important competences with regard to human rights are the power to review statutory legislation (both abstract and concrete review) and the power to review individual acts or decisions in the constitutional complaints procedure. As we have already hinted, the Constitutional Court’s activity was especially significant during the process of transformation. Many public officials, including ordinary court judges,25 were not replaced after the fall

22 Judgment of the Constitutional Court of South Africa, My Vote Counts NPC v Minister of Justice and Correctional Services and Another (CCT249/17) (2018) ZACC 17; 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC) (21 June 2018). 23 Judgment of the Constitutional Court of 28 February 2006, Pl ÚS 20/05. 24 Article 2 of the Code of Administrative Justice 2002, no 150/2002 Coll. 25 See Chapter 6.

174  Human Rights Constitutionalism of the communist regime,26 which meant that practical implementation of the new constitutional values – and most importantly of fundamental rights – faced challenges such as the mindset of judges and patterns that were established within the judiciary. This became evident in many cases including the war of the courts,27 which concerned the rights of conscientious objectors, or in cases concerning freedom of speech, where ordinary courts relied on 1970s case law well into the 2000s. The Constitutional Court, especially in the crucial period between 1993 and 2003, was composed of Justices with a personal profile very different from that of an average ordinary court judge. The body of Justices included former emigrants, lawyers persecuted by the communist regime and academics with extensive foreign (western) experience. While this obviously led to tensions between the Constitutional Court and ordinary courts,28 it also contributed to fundamental rights quickly becoming ingrained within the Czech legal system. Constitutional complaints are by definition tied to protection of fundamental rights, since Article 87(1)(d) of the Constitution provides that the Constitutional Court has jurisdiction over constitutional complaints against final decisions or other encroachments by public authorities infringing constitutionally guaranteed fundamental rights and basic freedoms. Constitutional complaints form the vast majority (around 98 per cent) of the Constitutional Court’s case load and the Court’s resulting case law has had an immense impact on fundamental rights protection in Czechia. Access to the Constitutional Court is, as a result of a conscious design, very open. Any individual (a human being or a legal person) who claims that their fundamental rights have been violated can submit a constitutional complaint, subject only to several procedural requirements. Most importantly, complainants must have exhausted all previous legal remedies. Practically speaking, this means that complainants first need to pursue their claims before ordinary courts and must exhaust all other appeals and complaints at their disposal. Review of legislation by the Constitutional Court is relatively less common but no less practically significant than the constitutional complaint procedure.29 Review of statutory legislation can be initiated in two basic ways: as an ‘abstract’ or a ‘concrete’ review. Unlike the constitutional complaint procedure, review of legislation is not by definition

26 See

Chapter 6, Section II. Chapter 6. 28 See war(s) of the courts discussed in Chapter 6. 29 See also Chapter 7, Section III. 27 See

Human Dignity as a Fundamental Right?  175 tied to fundamental rights. In theory, legislation can be reviewed from the point of view of constitutionality in the broadest sense. Practically speaking, however, conformity with fundamental rights is the focus of most reviews, especially the concrete reviews. Importantly, protection of fundamental rights is not vested solely with courts. The Ombudsperson, officially called the Public Defender of Rights, is perhaps the most significant non-judicial body responsible for human rights protection in Czechia. Besides the Ombudsperson, there are human rights (sub)committees in both chambers of the Parliament and the Human Rights Council of the Government, but these bodies are of a political nature and are not per se charged with the oversight of human rights violations. Unlike courts, the Ombudsperson does not enjoy constitutional status. The post was established in 2000 by an ordinary legislative act.30 While it does not possess any decision-making or (quasi)legislative powers, it has gradually accumulated many functions with regard to human rights and it plays an important role in the Czech legal order. The first and primary function of the Ombudsperson is to deal with individual complaints concerning public administration, with special emphasis on the protection of the individual rights of people. Besides the individual complaints procedure, the Ombudsperson can – though usually based on information gathered through individual cases – issue more general recommendations and reports which can be used in subsequent policy discussions. Additionally, the Ombudsperson has been designated as a domestic Committee for the Prevention of Torture (CPT) body, anti-discrimination body and a body under the Convention of Rights of Persons with Disabilities. As a CPT body, it monitors the conditions in various public law and private law institutions where people are restricted in their liberty and provides recommendations concerning their treatment. The Ombudsperson’s activity in these areas has led to legislative or policy reforms in medical law, social care law and anti-discrimination law. III.  HUMAN DIGNITY AS A FUNDAMENTAL RIGHT?

As we emphasised earlier, the Czech constitutionalism was to a great extent influenced by the German Basic Law and its main features. However, several important and fairly controversial questions revolved were tied to

30 Law

no 349/1999 Coll.

176  Human Rights Constitutionalism the influence of the principle of human dignity. Does the Charter recognise human dignity as a fundamental right or rather ‘only’ as a norm of a programmatic nature and an underlying moral-philosophical value? Can human dignity be directly invoked before courts? And, in any case, what is the meaning of human dignity protected by the Charter? After some back and forth movement, the doctrine and the case law of the Constitutional Court seem to have settled on a set of compromise answers. Generally, human dignity is treated both as an individual right and as a principle and value of programmatic nature. There are two independent yet somewhat related reasons for such a dual approach. Firstly, the Constitutional Court treats most of the fundamental rights guaranteed by the Charter as both individual and enforceable fundamental rights on the one hand and as values and principles that influence the whole legal order, including its creation and its interpretation, on the other.31 Hence, the categories of ‘individual fundamental rights’ and ‘norms of programmatic nature’ are not mutually exclusive in the Czech legal order. On the contrary, an individual fundamental right (the subjective dimension of a fundamental right) naturally fulfils the function of a norm of programmatic nature (the objective dimension of a fundamental right). This also fully applies to human dignity, even though the scope of application of human dignity as a norm of programmatic nature is much broader than scope of its application as a specific and explicitly guaranteed individual fundamental right. Secondly, the concept of dignity is used in the Czech constitutional order in several provisions and in more than one meaning. The concept of dignity used in Article 1 of the Czech Charter does not correspond to any specific individual right. It rather expresses ‘the highest objective constitutional value’. On the other hand, Article 10(1) of the Charter guarantees dignity as an individual right. However, the concept of dignity pursuant to Article 1 of Charter is arguably much broader than the individual right laid down in Article 10(1). Article 1 of the Charter protects human dignity in a very broad sense and rather as an objective underlying value that provides a starting point for all the specific individual rights guaranteed by the Charter. In other words, the specific individual rights may be understood as particular manifestations of human dignity in this general sense. Therefore, the meaning of human dignity according to Article 1 of the Charter is



31 See

also Chapter 7, Section VI.

Human Dignity as a Fundamental Right?  177 extremely complex. First, it is important to note that the Constitutional Court based its understanding of human dignity on the well-known ‘object formula’. More specifically, in case no I ÚS 557/09, it stated that ‘human dignity is violated in cases when an individual is put by the state in the role of an object, when an individual becomes a mere means and is diminished to an interchangeable commodity’. On a more specific level, the case law of the Constitutional Court made it clear that human dignity encompasses mental well-being and personal honour, privacy rights, freedom of choice, physical integrity and basic personal liberty, basic living conditions in social and economic sense, and has even played some role in the context of assessing mens rea. This list is definitely not exhaustive, but the Constitutional Court has not yet had the opportunity to address the scope of human dignity pursuant to Article 1 of the Charter in its entirety. From the practical application point of view, however, most of these aspects of human dignity are protected by specific provisions of the Charter. For example, the physical integrity of a person is protected by Article 7 of the Charter, and privacy rights are protected inter alia by Articles 7, 12 and 13 of the Charter. The Constitutional Court therefore primarily applies one of these specific provisions and human dignity servers ‘merely’ as an underlying value and an interpretative guidance. Direct application of human dignity according to Article 1 might be justified in cases where a particular aspect of human dignity is not covered by a specific fundamental right guaranteed by the Charter. The specific right to dignity pursuant to Article 10(1) of the Charter should thus be regarded only as one of the manifestations of the broader value entrenched in its Article 1 of the Charter. The relevant case law of the Constitutional Court suggests that ‘dignity’ pursuant to Article 10(1) encompasses certain privacy rights and personal honour (as evidenced by cases where these rights conflicted with freedom of expression), but does not extend to areas such as physical integrity or basic living conditions. This interpretation appears quite logical. If this individual fundamental right was to include all the aspects of human dignity within the meaning of Article 1 of the Charter, most of the other Charter’s provisions of would be redundant. It must be noted, however, that in the Šimsa case32 the Constitutional Court applied Article 10(1) of the Charter to a situation that does not fall under the ‘privacy rights and personal honour’ category. This case should, however, be considered – as regards the reasoning, not as regards the outcome – as an outlier in its case law.

32 Judgment

of the Constitutional Court of 29 February 2008, II ÚS 2268/07.

178  Human Rights Constitutionalism A precise difference between the meanings of dignity in Article 1 and Article 10(1) of the Charter is yet to be established by the Constitutional Court. Another complex question is whether human dignity is considered inviolable in Czech legal order. Even though some Czech authors tend to claim that it might indeed be inviolable, such a statement is an oversimplification and does not fully appreciate the complexity of human dignity protection in the Czech legal order. The individual right to dignity (Article 10 of the Charter) may clearly be proportionally limited in cases where it conflicts with some other fundamental right or another constitutional value. On the other hand, the general underlying principle of human dignity as mentioned in Article 1 of the Charter is not treated as an individual right but rather as an objective value with, so that it cannot be ‘limited’ in the traditional meaning of the word – ie in the same way as individual fundamental rights. In sum, it is important to always bear in mind that as an underlying and perhaps even supra-positive value, human dignity constitutes a point of departure for interpretation of fundamental rights. Accordingly, in cases where a conflict of fundamental rights arises (and one or both of these rights aim to protect some aspect of human dignity), such a conflict must be solved so that it reflects the meaning of human dignity as an underlying value in an optimal way. IV.  PROPORTIONALITY AS A KEY UNIFYING PRINCIPLE?

The Constitutional Court soon after its creation adopted important fundamental rights doctrines that have created a framework of fundamental rights protection. Three of the most influential Justices of the Constitutional Court in the 1990s and 2000s, Vladimír Klokočka, Pavel Holländer and Eliška Wagnerová, were particularly keen on searching for inspiration in Germany. Arguably the most important constitutional transplant was the early 1990s adoption of the proportionality test from the case law of the German Federal Constitutional Court and German doctrine. In Anonymous Witness judgment, the Constitutional Court has also laid down more detailed instructions on how to use the proportionality test and what kind of arguments might be used at the three respective stages – especially at the third (balancing) stage.33 33 See Judgment of the Constitutional Court of 12 October 1994, Pl ÚS 4/94, Anomymous Witness.

Proportionality as a Key Unifying Principle?   179 The Charter itself includes many fundamental rights provisions, but its text lacks explicit guidance for assessing the limitation of fundamental rights. Unlike the 1997 Polish Constitution (Article 31), it does not include a general limitation clause. Article 4(4) of the Charter merely states that ‘[w]hen employing the provisions concerning limitations upon the fundamental rights and freedoms, the essence and significance of these rights and freedoms must be preserved. Such limitations shall not be misused for purposes other than those for which they were enacted’. Such a standard would obviously be significantly lower than proportionality.34 Specific provisions do not always include satisfactory limitation clauses with regard to the fundamental right in question either. Article 17(4) of the Charter, which guarantees freedom of expression, comes ­closest to an exhaustive limitation clause: ‘[t]he freedom of expression and the right to seek and disseminate information may be limited by law in the case of measures necessary in a democratic society for protecting the rights and freedoms of others, the security of the State, public security, public health, and morals’. Most other provisions, however, contain no limitation clause beyond the statement that the right in question ‘may be limited only by law’. It was therefore of the highest importance that the Constitutional Court opted for making proportionality the unifying principle concerning limitations of fundamental rights. The Constitutional Court clearly favours the position that proportionality analysis is dictated by the very structure of fundamental rights, even though the text of the Charter does not specify the test. The Constitutional Court employs proportionality analysis with regard to most fundamental rights, with only two exceptions. On the one hand it employs a more deferential test with regard to socio-economic rights and tax legislation, and on the other hand there are a few examples of absolute rights (such as the prohibition of torture) whose limitation is prohibited under any circumstances. The Constitutional Court, thoroughly inspired by the German Constitutional Court, employs proportionality analysis in two basic forms.35 In cases of the public authority encroaching upon individual

34 This lower threshold, based on Article 4(4) of the Charter, is however used to review limitations of social rights. 35 It has to be conceded, though, that the Constitutional Court’s case law is not entirely consistent. See also David Kosař, ‘Conflicts between Fundamental Rights in the Jurisprudence of the Czech Constitutional Court’, in Eva Brems (ed), Conflicts Between Fundamental Rights (Oxford: Intersentia, 2008), 349.

180  Human Rights Constitutionalism rights (ie mostly when reviewing legislation or administrative acts), it employs a full three-step proportionality test. The test consists of a suitability test, a necessity test and proportionality in the narrow sense (balancing). In the first step the court ascertains whether the reviewed measure is capable of achieving a legitimate goal. Secondly, the court examines whether the measure is the least intrusive, but equally effective, measure able to achieve the desired goal (necessity). It is at the second step that most measures that are declared unconstitutional by the Constitutional Court fail. The final step consists of the balancing exercise. The 2002 Photo-recognition case36 can serve as an example of the Constitutional Court’s approach. The case was brought before the Court by a complainant whose picture was included (without the complainant’s consent) in a police database that was used for purposes of recognition. A witness would be taken to a police station and would be asked to pick an alleged culprit out of a set of pictures including the picture of the suspect and pictures selected from the database. The complainant argued that the use of his picture violated his privacy and personality rights. The Constitutional Court held that the measure in question pursued a legitimate public interest, namely the fight against crime, and that it was appropriate for achieving that aim. In the necessity test it tried to find effective and less intrusive alternatives to the non-consent-based police database. After a discussion concerning comparative law and academic literature, it came to a conclusion that such alternatives (for example a consent-based database) are only hypothetical and would not be feasible in reality. Finally, it held that the reviewed measure was proportionate even in the narrow sense, because photo-recognition served an important criminalistics function, whereas the limitation of the complainant’s rights was only marginal. In constitutional complaints in private law matters, ie in cases which involve a direct conflict between the fundamental rights of two individuals rather than review of an act of a public authority, the full proportionality test is not employed. The assessment of proportionality is thus based only on a balancing. A typical example of this is the Constitutional Court’s case law concerning conflict between freedom of expression and personality rights. In the Řápková37 case, for example, the Constitutional Court set out a rather long list of criteria (based on the case law of the European Court of Human Rights (ECtHR) and its own previous case

36 See

Judgment of the Constitutional Court of 21 March 2002, III ÚS 256/01. of the Constitutional Court of 3 February 2015, II ÚS 2051/14.

37 Judgment

Positive Obligations and the Challenge of Socio-economic Rights  181 law) that should be used to assess the proper balance between those two rights. In cases concerning conflict between other rights, the approach would be similar in principle, even though the precise criteria would not be as specific due to the lack of cases that would allow the Court to formulate them. Still, the use of proportionality by the Constitutional Court has been subjected to some criticism concerning its inconsistency.38 While some of the initial problems and inconsistencies have been remedied by later case law, several issues still present challenges for the Constitutional Court. Most importantly, the use of the proportionality test is at times rather intuitive and not based on appropriate arguments. In some judgments, for example, the Constitutional Court has practically ignored the Anonymous Witness balancing criteria and decided the case without any real reasoning.39 Also, the Constitutional Court is very reluctant to hold oral hearings and hear expert witnesses, which hinders its ability to get a good grasp of complex empirical issues that are often necessary to conduct the necessity test, ie the second stage of the proportionality test, which is often based on understanding the factual impact of a legislative act or the efficiency of its alternatives. The Health Registers case is a good example of this problematic practice. In a move criticised by several dissenting Justices, the Constitutional Court refused to hold an oral hearing that could have shed light on the necessity of collection of various personal data for the purposes of national health registers and rejected the Senators’ petition with only very general arguments and without using the potential of the proportionality test to its full extent.40 On the other hand, a recent notable exception is the Data Retention III case, in which the Constitutional Court based its judgment on a thorough oral hearing with multiple expert witnesses and members of the police force.41 V.  POSITIVE OBLIGATIONS AND THE CHALLENGE OF SOCIO-ECONOMIC RIGHTS

As we have already emphasised, the considerable breadth of the protection of socio-economic rights is a distinctive feature of Czech



38 See

Kosař, ‘Conflicts between Fundamental Rights’. eg Judgment of the Constitutional Court of 2 December 2008, Pl ÚS 43/05. 40 Judgment of the Constitutional Court of 10 November 2020, Pl ÚS 33/16. 41 Judgment of the Constitutional Court of 14 May 2019, Pl ÚS 45/17. 39 See

182  Human Rights Constitutionalism constitutionalism. On the other hand, the practical accommodation of these rights has represented a major challenge for Czech judicial practice. Initially, some foreign commentators painted the future of Central and Eastern European constitutions in dark colours and claimed that the decision to include socio-economic rights in them was not prudent.42 From the constitutional point of view the main questions were (1) to what extent socio-economic rights were justiciable,43 and eventually (2) what approach should be adopted towards their judicial interpretation and how deferential to the legislature the Constitutional Court and ordinary courts should be.44 The social rights clauses remained mostly dormant in the 1990s and early 2000s. It was only in the wake of the financial and economic crisis of the late 2000s that the question of social rights rose to prominence. After the Topolánek Government (2006–2009) adopted a series of legislative austerity measures, the political battle between the left and the right was transferred to the Constitutional Court. The Court had to take a stance on vexing issues such as the justiciability of social rights, their scope and the degree of deference to be given to the legislature in these issues. The resulting case law can be seen as a compromise. The Constitutional Court adopted a deferential ‘rationality test’45 which left wide room for manoeuvre for the legislature. The rationality test consists of four steps. The first question concerns the scope of the given socio-economic right and its ‘essence’ (minimum core). Second, the Constitutional Court asks whether the statute affects the essence of the right. If it does, a proportionality test is used to review the limitation of the core (see the Public Service judgment below). If it does not, the rationality test continues with two additional steps. The third stage of the test examines whether the limitation pursues a legitimate aim. Finally, it is ascertained whether

42 See inter alia Sunstein, who called the constitutionalisation of positive socio-economic rights a big mistake, possibly a catastrophe (Cass R Sunstein, ‘Against Positive Rights’, in András Sajó (ed), Western Rights? Post-Communist Application (The Hague: Kluwer Law International, 1996), 225–32). 43 This was not a problem concerning all such rights. Freedom of occupation (Article 26 of the Charter) can be considered a classical freedom that does not pose specific problems with regard to justiciability. 44 See Chapter 7, Section IV. 45 See eg Judgment of the Constitutional Court of 20 May 2008, Pl ÚS 1/08, Healthcare fees; and Marek Antoš, ‘The Czech Constitutional Court and Social Rights: Analysis of the Case Law’, in Pavel Šturma and Narciso Leandro Xavier Baez (eds), International and Internal Mechanisms of Fundamental Rights Effectiveness (Passau: RW&W Science & New Media, 2015), 187–96.

Positive Obligations and the Challenge of Socio-economic Rights  183 the statutory measures used to achieve the legitimate aim are reasonable, even if they are not necessarily the best, most suitable, most effective or most prudent. On the other hand, the Constitutional Court did not hesitate to annul several statutes that excessively limited the scope or core of social rights. The most notable example is probably the Civil Service case.46 The Parliament established an obligation for unemployed people to work in the so-called ‘public service’ in order to retain the corresponding social benefits. Specifically, if an unemployed person had been registered in the unemployment register for two months, she could be ordered to work for as much as 20 hours per week for a registered employer of the Labour Office’s choosing. The petitioners (a group of members of the Parliament) questioned the conformity of the regulation with Article 26(3) of the Charter. This provision stipulates that ‘[e]verybody has the right to acquire the means of her livelihood by work. The State shall provide an adequate level of material security to those citizens who are unable, through no fault of their own, to exercise this right; conditions shall be provided for by law’. The Constitutional Court accepted the petitioners’ arguments and held that laying down such an extensive labour obligation as a prerequisite to keeping registration and the corresponding benefits encroached upon the very core of the right under Article 26(3) of the Charter. Hence, it assessed the proportionality of the statute in question and ruled that it was not a suitable and proportionate measure. However, the Constitutional Court has not hitherto delivered a judgment like the German Hartz IV, which would comment on the actual amount of benefits receivable from the social welfare system. While the constitutional dimension of socio-economic issues rose to prominence around the time of the financial crisis, the constitutionalisation of socio-economic issues should not be seen as a closed chapter of Czech constitutional development. First, the legacy of the financial crisis is still evident. The last decade of the Constitutional Court’s operation has been marked by reviews of socio-economic legislation. Both legislation limiting the extent of the welfare state and that regulating the economic activity of individuals now form a major part of political and consequently often legal battles. Secondly, other constitutional issues concerning social problems are on the horizon. Most importantly, almost 900,000 people in Czechia are affected by writs of execution and find themselves bankrupt or close to

46 Judgment

of the Constitutional Court of 27 November 2012, Pl ÚS 1/12.

184  Human Rights Constitutionalism a debt trap.47 This issue offers more than one constitutional challenge. Besides the obvious constitutional dimension of the problem, there is an undeniable political dimension. People affected by these problems may quickly lose, or in the worst case scenario have already lost, trust in the constitutional system’s ability to address their problems. VI.  PUBLIC/PRIVATE DISTINCTION AND THE IMPORTANCE OF DRITTWIRKUNG

From the very beginning one of the key questions of the Charter’s interpretation was whether fundamental rights and freedoms should regulate purely vertical relations (between governmental institutions and citizens) or whether some form of their horizontal application (ie application in private relations and in relations between individuals) would be possible. Without doubt, the primary function of the Charter has always been to regulate the relationship between the individual and public authority. It is obviously not a specific feature of the Charter, because it follows the logic and nature of constitutional human rights protection in a modern state, but the emphasis on the vertical dimension has also had a specific Czech flavour – a flavour which one might comprehend after reading the opening paragraphs of Charter 77 quoted above. After decades of experience with totalitarian regimes, emphasis on an umbrella-like function of fundamental rights is more than understandable. Despite this, the Constitutional Court developed an extensive doctrine of horizontal application of fundamental rights that was later accepted by ordinary courts and became a stable part of Czech human rights constitutionalism. In numerous rulings48 the Constitutional Court has held that fundamental rights, as understood by the Charter, do not regulate just the relationship between the state and the individual. While this is their primary function, fundamental rights are also viewed as ‘objective values’ that form a fundamental pillar of the legal order as a whole and that ‘radiate’ through all parts of the legal order, including private law and purely horizontal relationships. The doctrine of fundamental rights as objective values is an obvious nod to the German constitutional doctrines of objektive Werte (objective values), objektive Werteordnung (objective order of values) and Austrahlung (radiation). These doctrines were developed by 47 See also the Introduction to this book. 48 Judgment of the Constitutional Court of 15 January 2002, I ÚS 336/99; and Judgment of the Constitutional Court of 14 July 2004, I ÚS 185/04 were among the first.

Public/Private Distinction and the Importance of Drittwirkung  185 German judges and academics and the Czech Constitutional Court was clearly inspired by them. This fact is obvious from the very wording of the relevant Constitutional Court judgments. The names of the newly adopted doctrines were in fact direct translations of their German counterparts and the authors of the initial judgments were those judges who had previously worked or studied in Germany. The Constitutional Court rejected the argument that fundamental rights should be directly applicable to private law (horizontal) relationships, and instead opted for the doctrine of indirect horizontal application that was inspired by the German doctrine of Drittwirkung. According to that doctrine, both ordinary courts and the Constitutional Court are obliged to take the fundamental rights dimension into account. One might argue that the reasons for adopting the doctrine of indirect horizontal application were however not just theoretical, and that its development by the Constitutional Court had a certain opportunistic ring to it. The Court has been a key player in the process of the establishment of fundamental rights in legal practice and at times it has basically forced a certain understanding of fundamental rights on ordinary courts or other public institutions. The adoption and subsequent extensive use of the indirect horizontal application doctrine allowed it to engage with civil law cases (that form a significant majority of its constitutional complaints) and specifically with the Supreme Court, whose case law has often been at odds with the Constitutional Court’s understanding of rights and justice. The Constitutional Court has, for example, engaged in a prolonged dialogue with the Supreme Court in defamation/personality rights cases. In 1993, even though the Czech constitutional system and the Constitutional Court had only just been established, there was already decades-old and reasonably settled defamation case law of the civil courts. This settled case law often relied on conclusions and concepts drawn by the Supreme Court in the 1970s, when the position of fundamental rights generally and of freedom of speech in particular was dramatically different from the current one. Generally speaking, it attributed quite a low value to the freedom of expression of the defendants, for whom it was exceedingly hard to meet a threshold of justifiable interference with the plaintiffs’ personality rights. Vondráčková v Rejžek49 is an early leading case in this area. The constitutional complaint was filed by a music critic who was ordered



49 Judgment

of the Constitutional Court of 15 March 2005, I ÚS 367/03.

186  Human Rights Constitutionalism by the ordinary courts to apologise to a famous singer for writing an article asserting that Mrs Vondráčková, the singer, owed her prominent position in Czech showbusiness to not having lost her pre-revolutionary contact with mafiosos. The Constitutional Court – unlike the ordinary courts before it – emphasised the conceptual distinction between the ‘statement of facts’ and a ‘value judgement’. The Court criticised the formalist approach of the lower courts which had tried to ascertain whether Vondráčková had actual ties to people who could be described as ‘Mafioso’ in the traditional sense (ie members of an organised crime group). The Court, on the other hand, opted for a contextual reading of the music critic’s statements and considered them a typical example of value judgements. Moreover, relying on concepts borrowed from the ECtHR case-law, it stressed that Mrs Vondráčková was a public figure and that as such she had to tolerate a higher level of public and critical scrutiny.50 This judgment of the Constitutional Court has had vast practical implications, allowing for more expressive criticism of anyone and a particularly close scrutiny of public figures, including politicians. The Constitutional Court has interfered with civil law issues even in less obviously constitutionalised areas than freedom of expression and personality rights, such as property law, tort law and even family law. Indeed, the Court has often dealt with cases that are not traditionally understood as constitutional law or fundamental rights issues, and at times it has acted rather like a specific appellate court. The Co-ownership case51 involved a majority co-owner who effectively deprived the minority co-owner of her rights by renting the commonly owned building to a company (owned solely by the majority owner) for a miniscule fraction of the building’s market rental value. On this basis the minority co-owner lost the right to use the building for a negligible price, while the majority co-owner effectively gained full and unhindered use of it. The ordinary courts, including the Supreme Court, held that the majority co-owner was within their right to do so, as the so-called ‘majority principle’ generally governs the use of co-owned property. The Constitutional Court, on the other hand, relied on the doctrines of ‘fundamental rights as objective values’ and indirect horizontal application of fundamental rights. It held that even in horizontal private law relations it was the duty of the state to provide effective fundamental rights protection to all parties involved, and that in this case the minority



50 See

also Chapter 7, Section VII. of the Constitutional Court of 21 October 2008, IV ÚS 1735/07.

51 Judgment

Public/Private Distinction and the Importance of Drittwirkung  187 co-owner had been deprived of such protection. It ruled that the duty of the ordinary courts was to interpret the civil code in such a way that it compensated for the interference with the right to own property and loss of economic utility brought about by the male fidei conduct of the majority co-owner. Subsequently, the ordinary courts awarded the minority co-owner damages corresponding to her share of the market rental value, even though this solution was not explicitly provided for by the Czech Civil Code. In the area of tort law, the Constitutional Court has developed a doctrine of full damage compensation in response to the Supreme Court’s less favourable treatment of litigants who have suffered damage to property. The relevant Supreme Court case law was based on the notion that in the event of property damage the injured party is entitled to damages corresponding to the costs of repair, but not to damages corresponding to the loss of market value (should it be higher than the repair costs). The Constitutional Court overruled this line of case law in the TERMA judgment52 concerning a dispute about compensation for the loss of value of a vehicle involved in an accident. It opined that the Supreme Court’s case law effectively limited the economic freedom and utility of the injured party. While coverage of the repair costs guaranteed that the injured party’s property would continue to serve its technical purpose, the vehicle’s market value remained lower even after the repair. The Constitutional Court held that the Supreme Court’s solution was inconsistent with the fundamental right to property and that civil law and its interpretation had to guarantee complete restitution of or compensation for the property’s economic utility in all practical respects. In the 2010s the Constitutional Court has launched a series of family law interventions, aimed especially at the ordinary courts’ decisionmaking in child custody cases. Generally speaking, ordinary courts deciding on the custody of children within divorce proceedings avoided shared custody and overwhelmingly preferred awarding custody to a mother. The Constitutional Court attempted to reverse this trend53 and stressed that the fundamental right to family life of both parents and the child must be strictly observed even in custody proceedings and family ties should remain in place as far as possible. Consequently, it urged ordinary courts to opt for shared custody whenever feasible.

52 Judgment of the Constitutional Court of 27 April 2017, II ÚS 795/16. 53 The first and perhaps the most significant is Judgment of the Constitutional Court of 26 May 2014, I ÚS 2482/13.

188  Human Rights Constitutionalism VII.  THE INFLUENCE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

As already noted, international human rights law forms a crucial layer of the Czech human rights constitutionalism. Generally speaking, Czechia has been considered a good complier within the ECHR system and international human rights treaties and the corresponding case law has had a tremendous impact on the Czech human rights practice. The Constitutional Court in particular had earned a reputation of a champion in the application of the ECHR in Czechia and relied heavily on the ECtHR’s case law when interpreting the Constitution and the Charter.54 In general, the case law of the Constitutional Court has been very ‘ECHR-friendly’. It has been heavily influenced by the ECtHR’s jurisprudence in areas such as freedom of speech, the right to privacy55 and positive obligations under Articles 2, 3 and 4 ECHR.56 It can be argued that the Constitutional Court has acted as the ECtHR’s ally and has helped to enforce the ECtHR jurisprudence domestically, especially vis-à-vis the ordinary courts and the Parliament.57 It is important to note that the Constitutional Court has not served merely as a transmission belt that secures compliance with regard to narrowly understood individual cases. The impact of the ECHR and the ECtHR case law has been much more complex. In fact, the Constitutional Court has borrowed, enforced and at times even developed or modified whole general doctrines introduced by the ECtHR. It is interesting to note, however, that these processes have been mostly led by several outlier Justices with a very positive attitude towards the ECtHR case law.58 The whole shape and structure of the Constitutional Court’s case law on freedom of expression, for example, has been inspired by the ECtHR example, at least since the Vondráčková case discussed above.59 The Vondráčková judgment and the following case law of the Constitutional

54 Ladislav Vyhnánek, ‘A Holistic View of the Czech Constitutional Court Approach to the ECtHR’s Case Law’, Heidelberg Journal of International Law: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 77, no 3 (2017), 715–44. 55 Judgment of the Constitutional Court of 15 March 2005, I ÚS 367/03. 56 See eg Judgment of the Constitutional Court of 2 March 2015, I ÚS 1565/14. 57 See David Kosař and Jan Petrov, ‘The Architecture of the Strasbourg System of Human Rights: The Crucial Role of the Domestic Level and the Constitutional Courts in Particular’, Heidelberg Journal of International Law: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 77, no 3 (2017): 585–621. 58 See Vyhnánek, ‘A Holistic View’. 59 See Section IV.

The Influence of the European Convention on Human Rights  189 Court relied predominantly on concepts from the ECtHR case law. Consistently with the ECtHR case law, such as Lingens v Austria, in Vondráčková the Constitutional Court pointed out that value judgments cannot be proven as a matter of fact. At the same time, it stressed that the appropriateness of the interference with the rights of personhood can depend upon whether there exists a sufficient factual basis for the contested statement, since even a value judgment can be excessive if it lacks any factual basis whatsoever. When deciding on the appropriateness of the critic’s statement, it made use of the ‘public figure’ factor and, based on Lingens v Austria, held that a famous and publicly active person (such as one of the most popular female Czech singers) must tolerate more intensive interferences with her personality rights than the average person. Turning away from the outcome of this individual case, it is of utmost importance that both of these distinctions that the Constitutional Court borrowed from the ECtHR case law (a statement of facts versus a value judgment and a public person versus an ‘ordinary’ person) became an integral part of the Constitutional Court’s case law on freedom of expression.60 This, however, does not mean that the Constitutional Court’s approach to such cases, as regards the structure of reasoning, is a precise copy of the ECtHR practice. Rather, the ECtHR approach was gradually developed and restructured over time. Perhaps most significantly, the Constitutional Court merged and generalised the previous ECtHR and its own case law in the 2015 Řápková v Hůle61 case in order to formulate a simplified working formula for both itself and the general courts when deciding freedom of expression versus personality rights cases. More specifically, the Constitutional Court put together a non-exhaustive list of factors that must be taken into account when balancing freedom of expression against personality rights. Yet another example of the Constitutional Court’s inspiration by the ECtHR concerns positive procedural obligations, mainly under Articles 2 and 3 ECHR. For at least two decades, established case law of the Constitutional Court had been ruling that it is proper to dismiss as manifestly ill-founded petitions by individuals harmed by an alleged criminal conduct asking for review of an investigation by the police and

60 See eg Judgment of 4 April 2005, IV. ÚS 146/04, and the judgment of 17 July 2007, IV ÚS 23/05. 61 Judgment of the Constitutional Court of 3 February 2015, II ÚS 2051/14.

190  Human Rights Constitutionalism a state attorney, relying on the argument that there is no fundamental right to have another person criminally punished.62 This approach was usually applied in cases falling outside the scope of Articles 2 and 3 of the ECHR, but some cases involved issues of right to life or ill-treatment as well.63 In 2015, relying on a detailed analysis of principles stemming from the ECtHR case law, the Constitutional Court reversed this trend both as regards investigating threats to the right to life64 and suspicions of ill-treatment. This pioneering case65 involved an alleged mistreatment of a foreign citizen who was about to be deported and who was (while naked) handcuffed, teargassed and allegedly beaten by the police. The Constitutional Court held that the investigation had been conducted with undue delay and that the investigators were generally lax with regard to collecting the evidence. These judgments stressed some of the basic principles of the ECtHR case law concerning effective investigation under Articles 2 and 366 (threshold for effective investigation, burden of proof, independence and impartiality of the investigation). Case law concerning effective investigation under Article 3 ECHR was further confirmed and developed by yet another judgment.67 As of 2020, the case law has become completely settled and there are now dozens of cases in which the Constitutional Court has reviewed the effectiveness of investigation concerning violations of the right to life or physical integrity of victims. As we discussed in Chapter 7, the establishment of the new system of administrative justice, topped by the Supreme Administrative Court, came about as a direct reaction to the Constitutional Court’s judgment that declared the previous system unconstitutional because it did not adhere to the ‘full jurisdiction’ requirement as understood by the ECtHR Article 6 case law.68

62 See, among dozens of others, Decision of the Constitutional Court of 21 January 2010, I ÚS 1941/09. 63 See eg Decisions of the Constitutional Court of 11 June 2009, II ÚS 2733/08; and of 17 September, IV ÚS 1921/09. 64 Judgment of the Constitutional Court of 2 March 2015, I ÚS 1565/14. 65 Judgment of the Constitutional Court of 27 October 2015, I ÚS 860/15. 66 Quite interestingly, these judgments also included the effective investigation requirement under the scope of the corresponding domestic provisions (Articles 6 and 7 of the Czech Charter respectively). 67 Judgment of the Constitutional Court of 24 May 2016, I ÚS 1042/15. 68 Judgment of the Constitutional Court of 27 June 2001, Pl ÚS 16/99, see also Chapter 6, Section VI.

The Influence of the European Convention on Human Rights  191 The Constitutional Court did not always stop at promoting compliance with the ECHR as it was interpreted by the ECtHR. For example, it unilaterally ‘created’69 the right to monetary relief for non-pecuniary injuries suffered in connection with deprivation of liberty that was required by Article 5(5) ECHR. While such an expansive move is not an uncommon one for a European constitutional court, the Constitutional Court did not rely on the Czech Charter of Fundamental Rights at all. Instead, it arrived at this conclusion solely on the ground of interpretation of Article 5(5) ECHR and argued that the notion of ‘an enforceable right to compensation’ (droit à réparation) in Article 5(5) ECHR has an autonomous meaning which entails the right to compensation for both pecuniary and non-pecuniary injury. Unfortunately, the ECtHR has, to our knowledge, never held that this is so. The Constitutional Court has also addressed the relationship between the ECHR and other, non-human rights, international treaties. For instance, when it faced a conflict between the obligations stemming from the ECHR on the one hand and the European Convention on Extradition on the other, it relied on its earlier Euro-Amendment judgment70 and held that the ECHR must prevail as it is a human rights treaty.71 In sum, the Constitutional Court had many times confirmed its generous ‘pro-ECHR stance’. This was, however, not always a team effort. A more detailed historical analysis shows that the penetration of the ECHR standards and especially the ECtHR case law into the case law of the Constitutional Court, has been championed by several ‘human rights activist’ Justices. In other words, a handful of Justices (acting as rapporteurs) were responsible for introducing the ECHR doctrines, while the rest simply followed the doctrines once they were established in the Constitutional Court’s own case law rather than actively engaging with them.72 It would, however, be very selective to completely single out the Constitutional Court. Research has shown that the ECtHR case law has had a tremendous independent impact on the functioning of ordinary courts. The Supreme Court and the Supreme Administrative Courts, the

69 Available in English at: https://www.usoud.cz/en/decisions/20060713-i-us-8504-nonpecuniary-damage-compensation-1/. 70 See also the discussion in Chapter 2, Section IV. 71 Judgment of the Constitutional Court of 15 April 2003, I ÚS 752/02. For further details see Eliška Wagnerová, ‘The Direct Applicability of Human Rights Treaties’, in The status of international treaties on human rights (Strasbourg: Council of Europe Press, 2006), 117. 72 Vyhnánek, ‘A Holistic View’.

192  Human Rights Constitutionalism heads of the Czech ordinary courts’ system have played a particularly important role in this regard.73 VIII.  SELECTIVE JUDICIAL ACTIVISM – EXPOUNDING OR EXPANDING HUMAN RIGHTS?

In comparative literature, especially in case studies, activist constitutional courts tend to attract considerable attention. In this regard the Czech Constitutional Court’s interpretation of fundamental rights never really made as much of a splash as the South African Constitutional Court, or as the Hungarian Constitutional Court did when it abolished capital punishment in Hungary. Based on this relative absence of prima facie high profile activism, one might be inclined to claim that the Czech Constitutional Court is not an overly activist one. It is possible, though, that painting a picture along the lines of ‘the Constitutional Court is not all that activist’ is slightly misleading. From a certain point of view, the Constitutional Court did not have to be activist on its own – precisely for the reasons that we mentioned in the previous section of this chapter. Many times, the ‘activist step’ has been taken by the ECtHR (such as the discovery of positive obligations) and the Constitutional Court has simply followed suit. Even though the result might have been considered activist under different circumstances – especially had the Constitutional Court acted on its own accord – following the binding case law of an international court does not have the same activist ring to it. Of course, the Constitutional Court was many times accused of undue activism by important politicians and interest groups. But such evaluations were often heavily biased, reflected the respective political positions of the commentators, and did not really have any objective value as regards the level of the Constitutional Court’s activism and its interpretation of law. In 2011, for example, Prime Minister Nečas criticised74

73 Katarína Šipulová, ‘The Supreme Court – The Story of a (Post)communist Cinderella’, in David Kosař et al, Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance (Abingdon: Routledge, 2020), 103–38; Jan Petrov, ‘The Supreme Administrative Court: A New Kid on the Block’, in David Kosař et al, Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance (Abingdon: Routledge, 2020), 139–68. 74 IHNED.CZ, ‘Nečas: Někteří členové Ústavního soudu jsou předpojatí’, IHNED.CZ, 8 May 2011, https://domaci.ihned.cz/c1-51795570-necas-nekteri-clenove-ustavniho-soudujsou-predpojati.

Selective Judicial Activism  193 the allegedly activist and partial Building Savings judgment75 of the Constitutional Court, even though the reasoning of the ruling relied on a perfectly reasonable and foreseeable interpretation of the principles of legal certainty, prohibition of retroactivity and legitimate expectations. Besides this substantive dimension, the judgment also contained important holdings concerning parliamentary procedure.76 Hence, we have attempted to employ a more objective measure when pinpointing the most representative cases of the Constitutional Court’s activism, even though it seems close to impossible to find an objective yardstick with regard to such an essentially contested concept. We follow mainly the measure of comparative activism of the Constitutional Court (ie whether the Court stands out from a comparative point of view) or whether the Court relied on a reasonably foreseeable constitutional standard. Even under this scrutiny, the Constitutional Court has in fact shown a good amount of activism. However, its activism seems to be rather selective. The Constitutional Court has tended to lash out in certain types of cases, yet it remains deferential in many other areas. The list of prominent examples of judicial activism on the part of the Constitutional Court must include the Euro Amendment and Melčák cases discussed earlier. In the Euro-Amendment case, the Constitutional Court refused to acknowledge the impact of a constitutional amendment and, practically speaking, unilaterally included international human rights treaties in the concept of constitutional order.77 While Melčák78 was not a typical human rights case, it is still very significant, as the Constitutional Court used a widely constructed right of a member of the Parliament ‘to have equal access to a public office’ to strike down an allegedly retroactive constitutional act that shortened the four-year term of the Chamber of Deputies. On the other hand, as we have shown, the case law of the Constitutional Court concerning socio-economic rights has been rather deferential and we will find no instances such as activism as the German Constitutional Court’s judgment Hartz IV (and the subsequent case law) or the case law of the South African Constitutional Court. Neither has the Czech Constitutional Court ruled in contentious issues such as same sex marriage or home births. As we have seen in Chapter 5, the Constitutional Court was also very deferential during the Covid-19 state of emergency.79

75 Judgment

of the Constitutional Court of 19 April 2011, Pl ÚS 53/10. Chapter 5, Section III. 77 For further details, see Chapter 2, Section IV. 78 Judgment of the Constitutional Court of 10 September 2009, Pl ÚS 27/09. 79 See Chapter 5, Section III. 76 See

194  Human Rights Constitutionalism It is also interesting to note that the most striking high-profile cases of judicial activism have concerned structural constitutional issues, such as the position of international human rights treaties in the Czech constitutional order (the Euro Amendment judgment) unconstitutional constitutional amendments (the Melčák judgment) or what is the position of the Constitutional Court vis-a-vis the European Court of Justice (the Holubec judgment), rather than substantive fundamental rights issues. Most of the judgments that could be labelled as examples of judicial activism are rendered by individual three-member chambers (that generally decide on constitutional complaints) and not by the full court that is responsible for the review of legislation. This is due to the fact that full court deliberation has a mitigating effect and does not allow the more activist members of the Constitutional Court to implement their preferences. In the chambers, on the other hand, it takes only two ‘activist’ judges for the Constitutional Court to issue an activist judgment. At the same time, the deliberation in chamber cases seems to be much less thorough than in the cases decided by the full court. Consequently, the case law of the Constitutional Court dealing with constitutional complaints is rather unpredictable. Some Justices and some chambers tend to be very activist, while some are very deferential.80 In chamber cases, a particular stream of activism is the overreliance on the right to fair trial pursuant to Article 36(1) of the Charter. What was intended by the drafters as a purely procedural right guaranteeing the access to a court, has developed into a ‘right to fair judgment’, that allows the chambers to quash ordinary court judgments that they see as ‘unfair’, even though they do not violate any particular substantive fundamental rights. In a sense, the right to fair trial became a sort of ‘due process’ clause that allows the Constitutional Court to render justice beyond its original mandate. This is of course used very selectively, depending on the specific sense of fairness of a particular Justice or prevalent in a particular chamber. IX. CONCLUSION

The Czech transition from a communist regime to human rights constitutionalism seems to be successful. Relying on a modern charter of rights 80 See Jan Chmel, ‘Postoje soudců a jejich vliv na senátní rozhodnutí Ústavního soudu ČR’, in Jana Ondřejková, Jan Malíř et al (eds), Ústavní soud ČR: strážce ústavy nad politikou nebo v politice? (Prague: Leges, 2020), 128ff.

Further Reading   195 and a set of international human rights treaties, Czechia has quickly adopted European human rights standards and is generally considered a good pupil and good complier with the ECHR. It has also developed a robust system of institutional fundamental rights protection that includes not only the judicial system, but also a pro-active office of a public defender of rights. So far, Czechia has avoided the excesses that are an increasingly common occurrence in the Central European space, such as the recently implemented anti-LGBTQ policies in Poland and Slovakia or the creeping democratic backsliding in Hungary. Still, many human rights battles seem to be ahead of Czechia rather than behind it. After a wave of transitional justice cases in the 1990s and the socio-economic rights cases in the 2000s and early 2010s, future years may bring about clashes concerning privacy rights (such as the increasingly common collection of personal data), the right to a family life (including the same-sex marriage and concerns of transgender people), or the right to enterprise, which is subject to increasing regulation. FURTHER READING Benák, Jaroslav, Ladislav Vyhnánek and David Zahumenský. ‘Human Dignity in the Czech Republic’, in Paolo Becchi and Klaus Mathis (eds), Handbook of Human Dignity in Europe. Cham: Springer, 2019, 197–210. Antoš, Marek. ‘The Czech Constitutional Court and Social Rights: Analysis of the Case Law’, in Pavel Šturma and Narciso Leandro Xavier Baez (ed), International and Internal Mechanisms of Fundamental Rights Effectiveness. Passau: RW&W Science & New Media, 2015, 187–96. Červínek, Zdeněk. ‘Proportionality or Rationality in Socio-Economic Rights Adjudication? Case Study of the Czech Constitutional Court’s Judgment in Compulsory Vaccination Case’. ULC Journal of Law and Jurisprudence, 2018, available at SSRN: https://ssrn.com/abstract=3514451. Kosař, David, Jan Petrov, Katarína Šipulová, Hubert Smekal, Ladislav Vyhnánek and Jozef Janovský. Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance. Abingdon: Routledge, 2020. Kosař, David, and Ladislav Vyhnánek. ‘The Constitutional Court of Czechia’, in Armin von Bogdandy, Peter Huber and Christoph Grabenwarter (eds), The Max Planck Handbooks in European Public Law, Vol III: Constitutional Adjudication: Institutions. Oxford: Oxford University Press, 2020, 119–82. Kratochvíl, Jan. ‘Test racionality: Skutečně vhodný test pro sociální práva?’. Právník 12 (2015): 1052–74.

Conclusion: Dynamics of Constitutional Change and the Search for Constitutional Identity Formal Constitutional Amendments – Euro-Amendment – Informal Constitutional Amendments – Eternity Clause – Constitutional Rigidity – Unconstitutional Constitutional Amendments – Constitutional Interpretation – Constitutional Ideology – Constitutional Patriotism – Constitutional Identity – Democratic Careening – Populism – Constitutional Sentiments – Democratic Backsliding

T

his book provided a brief contextualised overview of Czech constitutionalism. At this point, a question begs to be asked: if that is the past and present of the Czech constitutional landscape, what does its future look like? Thus, in this concluding chapter, we will attempt to tackle this question, drawing on the topics and phenomena that we have encountered in the previous chapters. To predict the future, one must understand the present and the past. Consequently, this chapter starts with a condensed look at the dynamics of the Czech constitutional change and development in the three decades since Czechia’s independence. Only after we have been able to ascertain its logic, direction and unmanifested undercurrents can we try to predict its future trajectory. I.  FORMAL AMENDMENTS IN A RIGID SYSTEM

A first logical step towards answering the question raised concerns formal constitutional amendments. A perceived need to change the Constitution (or the constitutional order in general) within the first 30 years of its existence could serve as a strong indicator of the key problems that the constitutional system has faced and possibly will be facing in the future. A significant factor influencing the number and the nature of formal amendments is the Constitution’s rigidity. The Czech Constitution is a rigid

Formal Amendments in a Rigid System  197 one and this choice has never been seriously questioned. Its Article 9(1) provides that the Constitution can be changed only by a constitutional act. The second and third paragraphs of this provision then read, ­respectively, that ‘[a]ny changes in the essential requirements for a democratic state governed by the rule of law are impermissible’ (the Eternity Clause)1 and ‘[l]egal norms may not be interpreted so as to authorise anyone to eliminate or jeopardise the democratic foundations of the state’. Thus, besides setting formal limits to the constitutional amendment procedure, it also deals with its substantive limits and the limits of informal and interpretative shifts and amendments. The notion of an entrenched constitution protected by procedural rules against hasty change and guarded by a strong specialised constitutional court is an important aspect of the German constitutionalism which was a crucial source of inspiration for the Czech constitution.2 That said, the Czech constitutional order is not amongst the most rigid constitutions in the world. First, Czechia, being a unitary state, lacks the safeguards imposed in federal countries, such as ratification by states or lands. Secondly, the people (for example via a referendum) are not included in the process of constitutional change. The formal aspect of rigidity thus consists only of (1) the heightened three-fifths majorities required in the two chambers of the Parliament for adopting a constitutional law;3 (2) the mandatory consent of the Senate, which cannot be overruled by the Chamber of Deputies in the case of constitutional laws; and (3) the safeguards provided by Article 9 of the Constitution, especially by the Eternity Clause. The Czech Constitution is thus rigid, but not overly so. The practical rigidity of the constitutional order is yet another issue. There have been several amendments of the constitutional laws defining the state’s borders and the Constitutional Law on Higher Self-Governing Units, but these have been rather technical and not of great importance. In addition to these constitutional laws,4 the Parliament has adopted six constitutional laws that amended the Constitution and one that amended the Charter. While several of these amendments have been rather minor, such as the amendment that increased the maximum length of detention

1 See Chapter 2, Section III. 2 See Chapter 2, Sections I and III. 3 According to Article 39(4) of the Constitution a three-fifths majority of all Deputies and present Senators is necessary for the adoption of a constitutional law. 4 See Chapter 2, Section II.

198  Constitutional Change and Constitutional Identity under Article 8(3) of the Charter from 24 to 48 hours, three of them deserve special mention. The first of these three amendments, the 2002 Euro Amendment,5 which aimed to prepare the Czech constitutional system for accession to the European Union, reshaped the Czech constitutional system and arguably also its substantive core. Still, it was an amendment that was brought about by necessity and external factors, namely by the prospect of joining the EU and the need to allow for the smooth operation of EU law within the Czech legal order. Therefore, the two other constitutional amendments are of particular interest here. The first of those is the 2012 Amendment, which introduced the direct election of the President and modified other elements of the President’s constitutional status and which has brought Czechia closer to a semi-presidential system.6 The second amendment, adopted in 2013,7 limited the immunities of members of the Parliament and Constitutional Justices. It was a long-awaited change as the extent of immunity of the members of the Parliament was exceptional from the European as well as from the worldwide perspective, as they enjoyed procedural immunity ‘for life’. In the fairly rigid constitutional system substantive constitutional amendments of core significance are of course not easily given birth to. There must be a powerful political driving force behind them, which was exactly the case with the 2012 and 2013 constitutional amendments. However different they were in their substance, they shared a common narrative. What was it then? Even when the discussions about the introduction of direct election of the President reached their final stages, constitutional experts remained puzzled as the change did not make much sense from the technical constitutional point of view. The only logical culprit, the driving force, seemed to be a more general feeling of discontent with the political and constitutional system. As a leading Czech constitutional scholar, Jan Kysela, put it, the call for direct presidential election was not motivated by any calculated impact on the Czech constitutional system, but was rather a symptom of a looming legitimacy crisis.8 The 2013 immunity amendment was a more logical one

5 Constitutional Law no 395/2001 Coll. See Chapter 1, Section VIII. 6 Constitutional Law no 71/2012 Coll. See Chapter 5, Section II. 7 Constitutional Law no 98/2013 Coll. See Chapter 4, Section V. 8 Jan Kysela, ‘Přímá volba prezidenta jako symptom krize legitimity ústavního systému’, in Vojtěch Šimíček (ed), Postavení prezidenta v ústavním systému České republiky (Brno: Mezinárodní politologický ústav, 2008), 42–59.

Constitutional Interpretation and Informal Amendments  199 (as it limited the over-extensive immunities of members of the Parliament), but it can also be read in conjunction with the previous amendment. The social and political force behind those amendments signified the growing discontent with the political elites and the amendments were aimed at them. Limiting their immunities would pave the way (or so it could be hoped) towards punishing the corrupt. Taking the presidential elections out of the hands of the Parliament would give more power to the people. It is no accident, in our opinion, that the time of adoption of these amendments coincided with the 2010 party system earthquake that we discussed in Chapter 4. Other possible changes in the Czech constitutional order have so far remained only in the rhetorical realm. Proposals to introduce referenda to the Czech constitutional system and thus widen the area of popular participation are prominent in this regard.9 II.  CONSTITUTIONAL INTERPRETATION AND INFORMAL AMENDMENTS AS A MECHANISM OF CONSTITUTIONAL CHANGE

It would be a mistake, though, to limit the metamorphosis of the Czech constitutional system to formal constitutional amendments. Both the judicial interpretation of the Constitution and the Charter and the relevant behaviour of other constitutional (political) actors have had a significant and long-lasting impact on Czech constitutional development. The courts, and especially the Constitutional Court, have played both an interpretative and a creative role with regard to Czech constitutional law. Perhaps most importantly, the Constitutional Court has developed the Charter of Fundamental Rights and Freedoms and has established many rights, and even complete doctrines that are not explicitly discernible from the Charter’s text, such as proportionality, Drittwirkung or extensive substantive rights based on the right to a fair trial.10 At the same time the Constitutional Court constitutionalised international human rights treaties and has served as an important channel to the Czech legal system for international human rights standards. But the role of the courts has not been limited to human rights law. For example, during the 2000s the courts, namely the Constitutional Court and the Supreme Administrative Court, interpreted the Constitution in



9 On

10 See

the problem of popular participation see also Chapter 1, Section VIII. Chapter 8 for details.

200  Constitutional Change and Constitutional Identity a way that significantly limited the potential of the President to intervene in judicial matters,11 and the Supreme Administrative Court in the Langer case did not hesitate to effectively rewrite the Constitution in order to do so. In a similar fashion, the Constitutional Court extensively interpreted the constitutional principles of ‘parliamentarism’ in order to limit the freedom of the Parliament in procedural legislative matters. The extensive use of the Eternity Clause by the Constitutional Court has a chapter to itself.12 The constitutional creative or rule-bending power was not limited to the courts, however. As we discussed in detail in Chapter 5, the relative strength of the Presidents and the corresponding relative weakness of the governments allowed President Miloš Zeman – in the absence of a qualified protest – to stretch the President’s powers vis-à-vis the Government to an extent unforeseen by the Constitution and defying the logic of the Czech parliamentary republic system. Similarly, the assertive stance of municipalities and regions and their strategic litigation before the Constitutional Court expanded the powers of territorial self-governing units and firmly embedded local governance into the Czech constitutional system. III.  THE UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS DOCTRINE

The rigidity of the Czech Constitution is bolstered by another factor which we have already discussed a few times, namely the Eternity Clause.13 Interestingly – and in contrast to the political-constitutional narrative behind the latest constitutional amendments and the populist shift in Czech politics – the Eternity Clause has so far remained in the ‘elite’ hands of the Constitutional Court and has been strongly linked to liberal democratic principles. The Constitution includes the so-called Eternity Clause in its Article 9(2), which provides that ‘[a]ny changes in the essential requirements of a democratic state governed by the rule of law are impermissible’. This Eternity Clause has been interpreted as having supra-constitutional status and as unable to be changed even by a constitutional amendment. Thus, it adds another ultra-rigid layer to the constitutional structure.



11 See

Chapters 5 and 6. Section III but also Chapter 2, Section III and Chapter 4. 13 Ibid. 12 See

The Unconstitutional Constitutional Amendments Doctrine  201 Despite the earlier uses of the Eternity Clause in the Constitutional Court’s case law,14 it was its Euro Amendment judgment15 that identified the full potential of the Eternity Clause in the Czech Constitution. In this case the Czech Constitutional Court effectively disregarded a constitutional amendment adopted by the Parliament and interpreted the Constitution as if such amendment had never been made – all of this based on Article 9(2) of the Constitution. In this case the Czech Constitutional Court was confronted with constitutional changes introduced by Constitutional Law no 395/2001, the so-called ‘Euro Amendment’. This name is derived from the fact that this amendment was meant to prepare the Czech Constitution for the Czechia’s accession to the European Union. Prior to the Law’s adoption the Czech Constitution had basically adhered to the dualist concept of the relationship between international and national law. At the same time, it recognised one important exception, namely so-called ‘international human rights treaties’. This category of international treaties enjoyed direct effect in national law16 and the Czech Constitutional Court had the authority to annul legislation that was not in conformity with such international human rights treaties. Following the aforementioned constitutional amendment the situation changed considerably. First, the Constitution adopted a monist approach to international treaties, declaring that all promulgated treaties which Parliament has consented to ratify and by which the Czech Republic is bound form a part of the Czech legal order and take precedence over statutes (Article 10 of the Constitution). Secondly, since international human rights treaties have ceased – from the constitutional point of view – to form a special category of international treaties, the Czech Constitutional Court has lost its authority to review whether national legislation conforms to standards set by them. This competence of the Czech Constitutional Court was functionally replaced by the authority of ordinary courts directly to apply any international treaty (including, but not limited to, international human rights treaties) in cases where it conflicted with a domestic statute. However, the Constitutional Court refused to acknowledge the effects of the Euro Amendment and

14 Judgment of the Constitutional Court of 21 December 1993, Pl ÚS 19/93. 15 Judgment of the Constitutional Court of 25 June 2002, Pl ÚS 36/01. 16 See Article 10 of the Czech Constitution prior to changes introduced by the Euro Amendment: ‘[r]atified and promulgated international human rights treaties, by which the Czech Republic is bound, are directly binding and take precedence over statutes’.

202  Constitutional Change and Constitutional Identity interpreted the Czech Constitution as if the Constitutional Court were still allowed to review domestic legislation from the point of view of its conformity with international human rights treaties. It claimed that such a change would lower the procedural level of human rights protection and that it would – as such – contradict the very basic constitutional principles protected by the Eternity Clause. This heavily criticised17 judgment indicated the Constitutional Court’s resolve to draw very concrete practical implications from the Eternity Clause. Therefore, few experts were genuinely surprised when – in 2009 – the Czech Constitutional Court in the Melčák judgment18 took yet another step and made it clear that it has, or thinks it has, the authority to annul constitutional laws. But the importance of the Eternity Clause extends beyond its purely normative consequences. It also has an important value dimension, and the values it represents – and even more importantly their position in the developing contests for constitutional identity – will be discussed in the next section. IV.  CONFLICTING LEGACIES AND THE SEARCH FOR CONSTITUTIONAL IDENTITY

The tension between the growing popular attempts to steer the constitutional development and the liberal democratic constitutional values guarded by the Constitutional Court (amongst others via the Eternity Clause) could very well be significant for the future of the Czech constitution. A careful analysis of their relationship could also help us to discover the ever more frequently invoked – but probably still not properly understood – Czech constitutional identity. The consensus of constitutional scholars has been that the single most important actor in defining the contours of Czech constitutional identity in the public sphere has been the Czech Constitutional Court. Even though it has not explicitly used the ‘constitutional identity’ language, it has built a considerable amount of ‘identity fabric’ over the last decades that we can build on. For this reason, we will first discuss the relevant

17 Cf Zdeněk Kühn and Jan Kysela, ‘Je ústavou vždy to, co Ústavní soud řekne, že ústava je?’, Časopis pro právní vědu a praxi 10, no 3 (2002): 199–214; and Jan Filip, ‘Nález č. 403/2002 Sb. jako rukavice hozená ústavodárci Ústavním soudem’, Právní zpravodaj 11, (2002): 11–24. 18 Judgment of the Constitutional Court of 10 September 2009, Pl ÚS 27/09, Melčák. See also the discussion in Chapter 4.

Conflicting Legacies and the Search for Constitutional Identity  203 provisions of the Czech Constitution that served as a point of departure for the Constitutional Court. In the existing literature, the set of basic principles that define the nature of Czech statehood in Article 1(1)–(2) and the Eternity Clause have often been used as starting points for definition of the Czech Constitutional identity. As von Bogdandy and Schill note, the very fact of deep entrenchment of eternity clauses can be understood as evidence of their importance in the context of national constitutional identity.19 On a general level, these judicial and doctrinal lists of values and principles protected by the Eternity Clause and the substantive core seem to support our previous argument that the Czech constitutional project is centred around the shared values of European liberal democracies. Still, it would be hasty to conclude that the Czech constitutional conception of these principles and values does not include anything unique. This is mainly due to the fact that the formative historical events mentioned previously (or rather the constitutional engagement with those events) gave the Constitutional Court as well as the political bodies opportunities to shed some light on their understanding of the basic constitutional principles, such as the rule of law, equality and the protection of fundamental rights. Perhaps the most significant judgment in this regard was issued in the Dreithaler case.20 In this judgment the Constitutional Court refused to annul a decree of president Beneš21 that provided for the confiscation of enemy (mainly German and Hungarian) property after World War II based on the principle of collective guilt. The Constitutional Court opined that, given the extraordinary nature of World War II and its aftermath, it was impossible to look at the legal problems arising purely through the lens of a modern liberal democracy and impose the current values on a problem that was half a century old. The judgment’s reasoning also clearly reflects a notion of collective responsibility of the German (and to a lesser extent the Hungarian) people that is very problematic from the point of view of the contemporary understanding of individual responsibility and the dignity of a human being. It is not without interest that the aftermath of World War II and the Beneš decrees have played

19 Armin von Bogdandy and Stephan Schill, ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, Common Market Law Review 28, no 5 (2011): 1417–53, 1432. 20 Judgment of the Constitutional Court of 8 March 1995, Pl ÚS 14/94, Dreithaler. 21 Decree no 108/1945 on the confiscation of enemy property and the National Restoration Fund.

204  Constitutional Change and Constitutional Identity a role in yet another episode of the Czech constitutional identity. The fear – realistic or not – that the EU Charter of Fundamental Rights might jeopardise the Beneš decrees was arguably the reason for the insistence of Czech President Václav Klaus on joining Protocol no 30 to the Lisbon Treaty.22 More recently, the Supreme Administrative Court rejected the European Court of Human Rights (ECtHR) case law concerning transgender people and insisted on irreversible medical operation as a necessary condition for switching gender.23 We can thus feel an inherent tension in the conception of Czech constitutional identity. The normative Eternity Clause and substantive core emphasise the shared values of European liberal democracies such as human dignity, the rule of law, equality and respect for human rights of minorities. On the other hand, the Dreithaler judgment, the Protocol No 30 episode and the transgender case have shown that the Czech constitutional institutions may be willing to adjust the interpretation and acceptance of these values, especially if they threaten to influence the status quo that was brought about by the formative historical events of modern Czech constitutional history. There is however yet another approach to Czech constitutional identity that goes beyond the mere normative concept of the Eternity Clause and substantive core and that leads from the ‘shared European values of democracy, rule of law and human rights’ to something with a more specific ‘Czech flavour’. Besides the Dreithaler case and the Lisbon saga, it is supported by a short dictum in the Holubec judgment, in which the Constitutional Court opined that 70 years of Czechoslovak statehood and the subsequent peaceful dissolution of Czechoslovakia are building blocks of the Czech constitutional identity.24 Interestingly, this approach goes beyond the text and legal values of the Czech Constitution, and incorporates a reflection of the Czech nation’s past into the concept of constitutional identity. From this point of view, it begs the question whether the strictly normative and aspirational approach to the concept of constitutional identity, based almost exclusively on the text of the Czech constitution and further refined by the Constitutional Court, is soundly rooted in

22 See Pietro Faraguna, ‘Taking Constitutional Identities Away from the Courts’, Brooklyn Journal of International Law 41, no 2 (2016): 492–578, 548ff. 23 Judgment of the Constitutional Court of 30 May 2019, No 2 As 199/2018-37, Transgender People. 24 Judgment of the Constitutional Court of 31 January 2012, Pl ÚS 5/12, Holubec.

Conflicting Legacies and the Search for Constitutional Identity  205 Czech society and shared by the people. The answer to this question has no direct or immediate normative consequences for the Czech constitution and its identity. It is however crucial for the longevity and stability of Czech constitutional identity in the long run. As we discussed at several points in this book, the people and even the political institutions have so far generally been left out of the process of formation of constitutional identity. Even the dissolution of Czechoslovakia itself was prepared by the executive leaders in a nontransparent manner without a referendum or any substantial involvement of the people whose country was being prepared for burial. The ever strengthening voices that support the traditional understanding of state sovereignty,25 constitutionalisation of the right to bear arms,26 or the calls for strengthening the role of the ‘nation’ in the Czech Constitution27 might soon be the driving force of a process that ‘takes the constitution away from courts’ and reshapes the understanding of Czech constitutional identity. It is important in this regard that the Czech constitution, unlike the Slovak one, has consciously opted for the ‘citizen-based’ rather than ‘ethnic/nation-based’ approach to the people.28 Even though most constitutional scholars view these recent proposals with suspicion,29 they have struck a chord with many people and exposed significant tensions between the elites and the rest of society. These tensions have been present since the very beginning of the independence of the Czech Republic. The Czech people were not given an opportunity to express their opinion on the dissolution of Czechoslovakia in a referendum, played no role in the drafting of the Czech Constitution, and many of them had a limited understanding of the nature of the capitalist 25 A typical proponent of such view is Václav Pavlíček, a Professor of Constitutional Law at the Charles University: see Václav Pavlíček, ‘Ústavní právník k migrační krizi: Stát rozhoduje, komu umožní vstup’, Novinky.cz, 11 July 2016, https://www.novinky.cz/ domaci/408830-ustavni-pravnik-k-migracni-krizi-stat-rozhoduje-komu-umozni-vstup. html. 26 See Andrea Procházková, ‘Zbraně EU nedáme. Senát bude hlasovat o novele Listiny základních práv a svobod’, Respekt.cz, 29 January 2020, https://www.respekt.cz/agenda/ zbrane-nedame-senat-bude-hlasovat-o-novele-listiny-zakladnich-prav-a-svobod. 27 Such an idea was proposed by Aleš Gerloch, the former Dean and Head of the Constitutional Law Department at the Charles University; see Aleš Gerloch, ‘Ústavní právník Gerloch chce vrátit do ústavy národ’, Novinky.cz, 14 November 2016, https://www. novinky.cz/domaci/420565-ustavni-pravnik-gerloch-chce-vratit-do-ustavy-narod.html. 28 Juraj Marušiak, ‘Ústavy SR a ČR a ich úloha v procese konštruovania národných identít’, in Vladimír Goněc (ed), Česko-slovenská historická ročenka (Stredoeurópska vysoká škola v Skalici, Bratislava, 2013) 96. 29 See eg Ladislav Šustr, ‘Ústavní parvo bránit se se zbraní ničemu nepomůže. To může být i kámen, tvrdí právník’, Echo24.cz, 20 July 2020, https://www.echo24.cz/a/SiswJ/ustavnipravo-branit-se-se-zbrani-nicemu-nepomuze-to-muze-byt-i-kamen-tvrdi-pravnik.

206  Constitutional Change and Constitutional Identity regime they ended up in.30 The tension thus was, to a large extent, hidden behind the post-Velvet euphoria of joining the EU and ‘catching up’ with the West.31 Only the financial and migration crises exposed it fully. This brings us back to the importance of popular feelings and their reflection of the formative events of Czech history. Since the people have been excluded from the formation of the Czech normative aspects of constitutional identity and there has been no discussion on the extent to which this elitist view of constitutional identity reflects the public’s view of it, social acceptance of the main constitutional values and principles – and consequently of the normative construction of constitutional identity – is uncertain. We cannot delve into all the details of the Czech formative historical and social events that still influence the popular conscience. However, the basic overview includes Germanisation and Catholicisation politics as well as suppression of the autonomy of Czech lands under the Austrian Empire (1620–1918), the creation of an independent Czechoslovakia in 1918, the Great Depression in the late 1920s and early 1930s, the Munich Treaty of 1938 and the subsequent annexation of Czech lands by the Third Reich in 1939, the 1946 semi-free parliamentary elections and the subsequent communist coup d’état in 1948, the Prague Spring of 1968, the Velvet Revolution of 1989 and the dissolution of Czechoslovakia in 1993.32 The Velvet Revolution led to the adoption of some specific lustration and restitution laws,33 which form a part of Czech constitutional identity, even though none of these laws had constitutional rank and the Czech Constitution does not mention them at all. It is telling that the Czech Republic defends its own understanding of restitution laws so vigorously that it rejected the implementation of the Human Rights Committee’s rulings which found them to be in violation of the International Covenant on Civil and Political Rights.34 For the same reasons, the Czech Republic has not ratified Protocol no 12 to 30 A recently published oral history of the Velvet Revolution is telling in this respect: see Miroslav Vaněk and Pavel Mücke, Velvet Revolutions: An Oral History of Czech Society (New York: Oxford University Press, 2016). 31 See Chapter 1, Section VIII. 32 See Chapter 1. 33 See eg Patrick Macklem, ‘Rybná 9, Praha 1: Restitution and Memory in International Human Rights Law’, European Journal of International Law 16, no 1 (2005): 1–23. 34 See eg Decision of the UN Human Rights Committee of 23 July 1996 Adam v Czech Republic, CCPR/C/57/D 586/1994; Decision of the UN Human Rights Committee of 9 August 2001 Blazek et al v Czech Republic, CCPR/C/72/D/857/1999, § 5.8; and Decision of the UN Human Rights Committee of 2 November 2001 Des Fours Walderode v Czech Republic, CCPR/C/73/D/747/1997, § 8.4.

Conflicting Legacies and the Search for Constitutional Identity  207 the European Convention on Human Rights (a freestanding prohibition of discrimination), because it fears litigation that could undermine the limited scope of Czech restitution laws. Even though these historical milestones as such do not form part of the constitutional identity,35 they translate into specific constitutional narratives that cannot easily be discerned from the constitutional text. For instance, the Great Depression and communist rule resulted in a strong emphasis on eradicating socio-economic inequalities, but significantly less so on socio-cultural inequalities.36 Even though this has been translated ‘only’ into the protection of social and economic rights in the Czech Charter of Fundamental Rights and Freedoms and not into the Eternity Clause (unlike in Germany), the principle of the welfare state is arguably one of the key components of Czech society’s understanding of what the basic functions of the constitution and the state are. These examples – but also the political sentiments that we see behind the 2012 and 2013 constitutional amendment discussed above – show that the Czech popular approach to constitutional identity may have a different pedigree from the normative conception developed by the Constitutional Court and based on the constitutional text. However, the main point is that the lack of any discourse between proponents of legal and popular constitutional identity deprives this concept of the dynamic aspect that could reduce the gap between these conceptions and forge a widely shared conception of constitutional identity that stands on firm ground. This neglect of the popular input is in fact a typical trait of Czech constitutionalism. Legal constitutionalism has been prioritised over political inputs and participatory elements in democratic government have been rather overlooked. As a result, Czechia does not seem to have a developed understanding of its constitutional identity and its constitution does not seem to be as important to its self-understanding as those in Germany or France.37

35 But cf Václav Pavlíček who claims that the guarantees of Czech statehood must be found in the historical context and experiences Czech society has lived through (see Václav Pavlíček, O české státnosti: úvahy a polemiky, část 3., Demokratický a laický stát (Prague: Karolinum, 2009)). 36 See Barbara Havelková, ‘Resistance to Anti-Discrimination Law in Central and Eastern Europe – a Post-Communist Legacy?’, German Law Journal 17, no 4 (2016): 627–56. 37 For a succinct study of the German conception of Verfassungsidentität and its French equivalent of identité constitutionnelle de la France see Jan-Herman Reestman, ‘The Franco-German Constitutional Divide. Reflections on National and Constitutional Identity’, European Constitutional Law Review 5, no 3 (2009): 374–90.

208  Constitutional Change and Constitutional Identity In our opinion, it is interesting to note that the cleavage between the concurrent understandings of the Czech constitutional identity seems to have a lot in common with the cleavages between the supporters of the three Czech Presidents.38 With some degree of simplification, there is the Havelian ‘truth and love’ bloc with emphasis on universal moral values. It posits, as Masaryk and then Havel did, that the role of the state is to create and support ‘a good human community’ and it subscribes to liberal democratic values within the meaning of the Eternity Clause: human rights, rule of law and a substantively robust understanding of democracy. On the other hand, there is the Klaus-Zeman bloc which emphasises a more ‘realistic’, nation-state based understanding of the Czech political-constitutional project and shares a more cynical (or sceptical) stance towards those ‘Havelian’ universal values and idealism.39 In the ideal scenario, the normative concept of the substantive constitutional core and ‘constitutional sentiments’ of the Czech people would converge and forge a strong sense of constitutional patriotism and consequently a robust and hopefully long-lasting constitutional identity.40 However, given the exclusion of the people and even of most of the political institutions from the formation of the Czech constitutional identity,41 there is limited constructive discussion between these two dimensions of constitutional identity. After all, the conflicting legacies of the Czech Presidents and the value gap between their respective supporters have been there since the very beginning of the history of independent Czechia and they do not seem to grow any weaker or narrower. The lack of these dynamic factors may stall the process of development of the Czech constitutional identity shared by the wider public and even increase the gap between the constitutional values and the sociopolitical reality, which in turn may alienate the elites from a significant section of the people. The anti-elite and populist reshuffling of the Czech party political system in the 2010s discussed earlier may and probably should be seen as one of the early manifestations of this tension. Challenging as it may be to deal with, it would be unwise to ignore it. Therefore, the main task for the elites in the coming years is to initiate the discussion about Czech constitutional identity and to find common 38 See Chapter 5. 39 See Chapter 2, Section I; and Chapter 5, Section II. 40 See David Kosař and Ladislav Vyhnánek, ‘Constitutional Identity in the Czech Republic: A New Twist On An Old Fashioned Idea’, in Christian Calliess & Gerhard Van der Schyff (eds), Constitutional Identity in a Europe of Multilevel Constitutionalism (Cambridge: Cambridge University Press, 2019), 85–113. 41 And from the formation of the Czech constitution – see Section II.

Concluding Remarks: A Danger of Democratic Backsliding?  209 ground, not necessarily in the lowest common denominator, between the concurrent constitutional narratives. This debate should ideally in the long run develop into the sense of political belonging and constitutional patriotism that would complement the ethnic and religious (in the Czech context largely atheist) identities of the Czech people. Unfortunately, Czech politicians and public intellectuals have so far failed reasonably to reconcile and forge them into a constitutional identity that would find robust support among Czech citizens.42 This is a pity, since constitutional identity is a two-edged sword. If grasped properly, it is an opportunity to build a new foundation of Czech statehood and glue the polarised segments of Czech society together. However, constitutional identity can also be abused, as we can see in Viktor Orbán’s disingenuous attempts at nurturing national constitutional identity as a counter-concept to European constitutional identity.43 Czechia has already witnessed signs of similar use of constitutional identity against the EU with regards to the constitutionalisation of the right to bear arms in response to the EU’s tighter gun control laws.44 V.  CONCLUDING REMARKS: A DANGER OF DEMOCRATIC BACKSLIDING?

The tensions that we have described above beg the question whether some of the developments in the last decade can be interpreted as signs of backsliding from the liberal democratic nature of the Czech constitutional system. The question becomes even more pressing if we look at the developments in Czechia in the context of the developments in the other Visegrad countries or in the CEE region in general.45 The possible forewarnings of backsliding can be divided into two categories. The first one is simply a matter of instability of the party system and the rise in importance of populist parties.46 This process is not specifically 42 See Kosař and Vyhnánek, ‘Ústavní identita České republiky’. 43 See Renáta Uitz, ‘National Constitutional Identity in the European Constitutional Project: A Recipe for Exposing Cover Ups and Masquerades’, VerfassungsBlog, 11 November 2016, http://verfassungsblog.de/national-constitutional-identity-in-the-european-constitutionalproject-a-recipe-for-exposing-cover-ups-and-masquerades/. 44 See n 26. 45 See David Kosař, Jiří Baroš and Pavel Dufek, ‘The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism’, European Constitutional Law Review 15, no 3 (2019): 442–3. 46 See Seán Hanley, ‘Dynamics of new party formation in the Czech Republic 1996–2010: looking for the origins of a “political earthquake”’, East European Politics 28, no 2 (2012): 199–243; and Vlastimil Havlík, ‘Populism as a threat to liberal democracy in East Central

210  Constitutional Change and Constitutional Identity a Czech problem or even a problem of Central and Eastern Europe. In the Czech context, however, this is coupled with the conviction of substantial parts of the population that democracy is not important for them or that undemocratic regimes are or may be better than democratic.47 In the polls conducted by a branch of the Sociological Institute of the Czech Academy of Science in the last 15 years, it appears that roughly 20–30 per cent of respondents support the ‘undemocratic regimes may be better’ thesis and roughly 15–25 per cent of respondents do not think the regime matters. Still, a stable majority of people considers democracy important and is generally content with the political system. The bigger problem thus may be that a strong majority of the Czech population seems to think that ‘politicians do not care about the opinions of ordinary people’ and that it is not possible for ordinary people to influence political decision-making.48 It is not only those people who do not identify with liberal democratic values who can be targeted by populist or downright anti-system party. As the Visegrad experience shows, people who support democracy but who are disillusioned by its current form may be susceptible to promises of ‘another form of democracy’ in the style of Viktor Orbán. Still, we present these phenomena more as a potential breeding ground for future development rather than signs of backsliding in themselves. The second category of forewarnings of backsliding includes more tangible signs of disagreement with the course of constitutional development in the first two decades of modern Czech constitutional history. In this regard, we can refer to attacks by the winner of the 2017 parliamentary elections and current Prime Minister, Andrej Babiš,49 and current President Miloš Zeman on the upper chamber of the Parliament, ie the Senate. Both of them have expressed their desire to abolish the Senate, because it – in their opinion – unnecessarily complicates the process.50

Europe’, in Jan Holzer and Miroslav Mareš (ed), Challenges to Democracies in East Central Europe (Abingdon: Routledge, 2016), 36–55. 47 See the document of 5 March 2020, available at: https://cvvm.soc.cas.cz/media/com_ form2content/documents/c2/a5155/f9/pd200305.pdf. 48 See another set of polls by the same institute from March 2020, available here: https:// cvvm.soc.cas.cz/media/com_form2content/documents/c2/a5169/f9/pd200313.pdf. 49 See Tim Haughton, Vlastimil Havlík and Kevin Deegan-Krause, ‘Czech elections have become really volatile’, The Washington Post, 24 October 2017, https://www. washingtonpost.com/news/monkey-cage/wp/2017/10/24/czech-elections-have-becomereally-volatile-this-year-was-no-exception/. 50 Andrej Babiš even incorporated this idea (and other ideas) in his book O čem sním když náhodou spím [What do I dream about when I am accidentally asleep] (Prague: Czech Print Center, 2017).

Concluding Remarks: A Danger of Democratic Backsliding?  211 Andrej Babiš went even further as he has also pledged to reduce the number of MPs in the lower chamber from 200 to 101 (this change would seriously skew the electoral rules against smaller political parties, as tested by Viktor Orbán in Hungary51) and abolish municipal ­assemblies.52 He openly prefers to ‘run the state like a firm’,53 implying that any checks and balances as well as complex procedural rules are but a nuisance.54 The vision of Andrej Babiš and Miloš Zeman thus seems follow the ‘pragmatic’ and ‘strong and effective governments’ narratives that we mentioned with regard to the Opposition Agreement.55 More recently, we have also witnessed more specific warning signs of democratic decay in terms of actions of individual office holders. For instance, a recently elected Ombudsman openly rejects a standard European concept of discrimination and questions the Constitutional Court’s case law as well as the meaningfulness of ‘new rights’ such as the right of fathers to be present at childbirth.56 Even more importantly, several judges of the Czech Constitutional Court and the Supreme Administrative Court alleged that President Miloš Zeman’s Chancellor, Vratislav Mynář, attempted to persuade judges of these two courts to decide high-profile political cases in line with Zeman’s preferences.57 Such events were simply unheard of in the 1990s and 2000s and their emergence should not be underestimated. If such actions become numerous and go unpunished legally or politically, they may gradually erode the current Czech constitutional development towards a stable

51 Mikós Bánkuti, Gábor Halmai, and Kim Lane Scheppele, ‘Hungary’s Illiberal Turn: Disabling the Constitution’, Journal of Democracy 23, no 3 (2012): 138–46. 52 See Babiš, O čem sním když náhodou spím. 53 Lubomír Kopeček, ‘I’m Paying, So I Decide – Czech ANO as an Extreme Form of a Business-Firm Party’, East European Politics and Societies 30, no 4 (2016): 725–49. 54 Rick Lyman, ‘The Trump-Like Figures Popping Up in Central Europe’, The New York Times, 24 February 2017, www.nytimes.com/2017/02/24/world/europe/zbigniew-stonogaandrej-babis.html. 55 See Chapters 4 and 5. 56 See Ivana Svobodová, ‘Přes 300 právníků apeluje na ombudsmana, aby se přestal řídit dojmy’, Respekt.cz, 14 April 2020, https://www.respekt.cz/agenda/pres-300-akademikuapeluje-na-ombudsmana-aby-se-prestal-ridit-dojmy. 57 See Ondřej Kundra and Andrea Procházková, ‘Mynář se pokusil ovlivnit vysoce postavené soudce’, Respekt.cz, 6 January 2019, https://www.respekt.cz/politika/mynar-se-pokusilovlivnit-vysoce-postavene-soudce; Renata Kalenská, ‘Soudcova výpověď o Zemanově útoku na justici’, Denikn.cz, 16 January 2019, https://denikn.cz/54570/soudcova-vypoved-ozemanove-utoku-na-justici-daval-mi-jasne-najevo-jak-mame-rozhodnout-rika-baxa/; and Ondřej Kundra, ‘Mynář prozradil před poslanci o kontaktech se soudci víc, než chtěl’, Respekt.cz, 24 January 2019, https://www.respekt.cz/politika/hradni-pokus-o-ovlivnovanisoudcu-mynar-prozradil-vic-nez-chtel.

212  Constitutional Change and Constitutional Identity liberal democracy and, in the worst case scenario, pave the way for the Hungarian or Polish paths.58 As we stressed in Chapter 3, Czechia, unlike Hungary and Poland, lacks a powerful nationalist narrative or another unifying ideology that would operate as a mobilising factor for the insurgence against the current constitutional system. However, social conservatism is present within the large segments of the Czech society and the refugee crisis revived conservative nationalism too. Sociological underpinnings of the deepening division between the haves and the have nots, such as debt trap of every tenth Czech adult,59 obsolete and unreformed education in many areas and poor knowledge of foreign languages, make this threat even more credible. That said, very few political scientists included Czechia among ‘backsliders’ in Central and Eastern Europe and the ‘Hungarian’ or ‘Polish’ paradigm can be made to fit only very loosely as the major challenge so far has not been creeping capture of existing institutions, but the entrenchment of private interests in the state and in party politics.60 In sum, Czechia is more in a state of ‘democratic careening’, as the democratic game has changed in decisive ways since the 1990s even as democracy neither collapsed nor more firmly consolidated in the process.61 The future of the Czech constitutional project ultimately depends on the success of identity forging and bridging the gaps in conflicting legacies that we described earlier concerning the ongoing search for Czech constitutional identity. Will the ‘system powers’ be able to repair the impaired legitimacy of the post-1989 (or post-1993) development with regard to the discontented portion of the Czech population? Or will the populist surge continue and the values protected by the Eternity Clause slowly erode as collateral damage? One thing is certain. Because the sources of the tensions are political, rather than legal, the response to them cannot be purely legal. Therefore, despite the importance of judicial interpretation of the Constitution, the remedy lies with the political elites as well as the civil society. As of now, many roads are open.

58 See also Kosař et al, ‘The Twin Challenges to Separation of Powers’. 59 See Introduction and Chapter 8, Section V. 60 See Sean Hanley and Milada Vachudová, ‘Understanding the illiberal turn: democratic backsliding in the Czech Republic’, East European Politics 34, no 3 (2018): 276–96. 61 Dan Slater, ‘Democratic Careening’, World Politics 65, no 4 (2013): 729–63.

Index absolute rights, 179–80 accession to the EU, 16, 26–27, 45 Constitutional Law on the Referendum on the Accession to the European Union, 30, 40, 61 constitutional reform, 27–28, 33–34 depoliticization of state administration, 124–25 EU law, impact of, 27–28, 33–34, 160–61, 198, 201 EU subsidies, 137–38 Euro Amendment, 27–28, 198, 201 internal conflicts, 28–29 local government and: Committee of the Regions, 139–40 EU structural funds, 139 EU subsidies, 137–38, 140 political sovereignty, 70–71 conflicts of law, 28–29, 71 territorial self-government, impact on, 139–40 administrative courts, 155–56 human rights, protection of, 172–73 see also Supreme Administrative Court administrative review, 172–73 annexation of Sudetenland, 1, 72 see also Nazi occupation atheism, 11, 77, 209 Austrian law, influence of, 12, 142–43 Babiš, Andrej, 4–5 abolition of the Senate, 57 ANO 2011, 98 democratic backsliding, 210–11 President Zeman, relationship with, 118 Stork’s nest scandal, 139 Beneš, Edvard, 19 Beneš decrees, 2, 19, 108, 203–4 theory of continuity, 72 bicameralism, 18, 37–38, 57 opposition to, 79–80

origins, 13, 79, 81–82 see also Chamber of Deputies; Senate Brno: Brno Law School, 14–15 Constitutional Court, 149 Supreme Administrative Court, 156 Supreme Court, 156 Bundesverfassungsgericht (BVerfG–German Federal Constitutional Court), influence of, 12, 73–74 see also German law Catholicism, 10–11, 59, 62, 206 central administrative bodies, 108 Chamber of Deputies, 80 appointments to public office, 88–89 budgetary powers, 86 elections, 94–100 formation of government, 87 interpellations, 88 oversight responsibilities, 82 passing of Bills, 83–84 regulatory impact assessments, 86–87 see also Parliament Charter 77, 22, 59–60, 73, 166–67, 184 Charter of Fundamental Rights and Freedoms, 39, 57, 167–68, 199 European Arrest Warrant, compatibility of, 45–46, 160 European Convention on Human Rights, relationship with, 75, 191 principle of laicity, 11 socio-economic rights, 207 welfare state principle and, 76, 207 Charter of Fundamental Rights of the EU (CFREU), 161, 203–4 Christian Democrats (KDU-CSL), 96–98 Civic Democratic Alliance (ODA), 96, 168 Civic Democratic Party (ODS), 3, 95–98, 120, 167–68 civil and criminal courts, 154–55

214  Index civil and criminal law reforms, 23–25 civil law traditions, 12–13 civil service, depoliticization of, 124–25, 126 Committee for the Prevention of Torture (CPT), 175 Committee of the Regions, 139–40 communist era, 15–16, 62–63 Charter 77 movement, 59–60, 73, 166–67 see also Charter 77 consolidation of power, 19–23 constitutional scholarship, 15–16 court system, 145 court presidents, 161–62 judges, 147–49 see also Prague Spring; Velvet Revolution communist legacy: consolidation of power, 19–23 judicial impact, 20–21 rule by law/rule through law, 21–22 subservience, 21–22 see also Prague Spring; Velvet Revolution Communist Party (KSCM), 1–2, 15, 19–23, 77, 96–100, 120–21 court system, 143, 145, 155 court presidents, 161–62 judges, 147–48 comparative law, 14, 16–17, 45–50 see also EU law; international law; sources of constitutional law conflict of interests, 85 political corruption, 101–2 Conflicts of Interests Act (2006), 101–2 consensus principle, 61, 62 constitutional amendments: direct election of President, 116–17, 125–26, 198 Euro-Amendment, 27–28, 48–50, 57, 152, 169–70, 193–94, 198, 201 formal constitutional amendments, 196–98 direct election of President, 116–17, 125–26, 198 Euro-Amendment, 27–28, 48–50, 57, 152, 169–70, 193–94, 198, 201 extent of MP immunities, 100–1, 198–99

informal amendments, 199–200 special courts and tribunals, 157 unconstitutional constitutional amendments doctrine, 164, 200–2 constitutional complaints procedure, 73, 90, 150–51 administrative courts, role of, 173 Drittwirkung, 185 judicial activism, 194 jurisdiction, 174–75 private law matters, 180–81 proportionality, 180–81 public law/private law dichotomy, 185–86 subsidiarity doctrine, 171 ‘constitution conforming’ interpretation, 172 constitutional conventions, 51, 57 appointments, 87 Czech National Bank, 52 judges, 52 Langer judgment, 52–53, 113 Presidential discretion, 52–53 binding nature, 51–52 President/Government relationship, 112–13, 114 status, 53 types, 53–54 usus longeus requirement, 52 Constitutional Court, 31, 38–39 abstract constitutional reviews, 149–50 appointments, 151–52 composition, 149 concrete constitutional reviews, 149–50 court administration, 146 establishment, 149 Eternity Clause, development of, 42–43 see also Eternity Clause impact on society, 152 importance, 152 individual constitutional complaints, 150–51 judgments, 151 proportionality, 181 protection of human rights, 173–74 subsidiarity doctrine, 171

Index  215 constitutional crises, 5 communist coup d’état (1948), 1–2, 12–13, 14–15, 19–20, 155, 206 interpretation of events, 2 Nazi occupation (1938), 1–2, 72, 206 Prague Spring (1968), 1–2, 22, 59, 70, 140, 206 prioritisation of legal constitutionalism, impact of, 30 Velvet Revolution (1989), 2–3, 10, 15–16, 23–24, 59–60, 128, 206–8 constitutional drafting: bicameralism, 37–38 European Convention on Human Rights, influence of, 34 executive powers, 38 foreign sources, influence of, 34–35 German influence, 34 judicial power, 38–39 political disagreement, 33–37 public participation, lack of, 29–30, 35–36 separation of powers, 37 territorial self-government, 39 constitutional identity, 202–3 conflicting legacies, 110–12, 202–3 diverse understandings of, 208–9 Eternity Clause, 203–5 formative historical/social events, impact of, 206–7 public participation, lack of, 205–6 constitutional interpretation, 199–200 Austrian legal system, influence of, 12 excessive formalism, prohibition of, 24 German legal system, influence of, 12 ‘EU friendly’ interpretation, 46 Hungarian legal system, influence of, 12 in dubio pro libertate, 24 in favorem restitutionis, 24 Soviet legal system, influence of, 12–13 US legal system, influence of, 13 Constitutional Law establishing the Higher Self-Governing Units, 40, 130, 197 Constitutional Law on the Referendum on the Accession to the European Union, 30, 40, 61

Constitutional Law on the Security of the Czech Republic, 40 state of emergency, 122 coronavirus, 122–23, 193 see also Crisis Management Act state of threat, 122 state of war, 122 constitutional order, 9–10, 39–41 Eternity Clause, see Eternity Clause EU law, 45 constitutional patriotism, 29–30, 208–9 constitutional review, 170–71, 173–74 abstract constitutional reviews, 149–50, 173–74, 174–75 concrete constitutional reviews, 149–50, 173–74, 174–75 constitutional complaints procedure, see constitutional complaints procedure constitutional scholarship: communist era, 15–16 dissolution of Czechoslovakia, 25–26 modern day, 16–17 Nazi occupation (1938), 14 post-WWI, 14 post-WWII, 14–15 pre-WWI, 13–14 Velvet Revolution (1989), 15–16 constitutional sentiments, 5, 29–30, 208–9 continuity theory, 72 Convention on the Rights of Persons with Disabilities (CRPD), 175 coronavirus, 3, 98 state of emergency, 122–23, 193 corruption, 3 conflicts of interest, 101–2 EU subsidies, 138–39 European Structural and Investment Funds, 138–39 immunity: indemnity, 100–1 procedural immunity ‘for life’, 101 local government, 138–39 Nečas Government, fall of, 100 party-financing scandals, 100 procedural immunity, 101 limiting, 101–2 Rath scandal, 100

216  Index Stork’s Nest scandal, 138–39 Svoboda scandal, 100 court administration, 162–63 Constitutional Court, 146 court presidents, 144–45 Government, 145 judicial boards, 146 Judicial Union, 146 Ministry of Justice, 144, 155 Parliament, 145 President of Czech Republic, 145 Court of Justice of the EU (CJEU): Czech courts’ relationship with, 159–61 court presidents, 23, 143–44, 144–46, 154, 164–65 appointment and dismissal, 161–62 court system: communist era, 143, 145, 155 court presidents, 161–62 judges, 147–48 inter-war years, 142–43 see also administrative courts; Constitutional Court; ordinary courts Crisis Management Act (CMA): coronavirus, 122–24 Czech National Bank, 37, 57 appointments, 52–53, 105, 112–13 Czech national revival, 10–11, 14, 140 Czech Social Democratic Party (ČSSD), 95–98, 120 Czechia: definition, 7 disillusionment, 3 economic and social success, 2–3 origins, 1–2, 9–10 Czechoslovak Constitution (1920), 11, 14, 17–19 1993 Czech Constitution, impact on, 19, 79 bicameralism, 80 decrees, 108–9 President, role of, 105–6 structure of Parliament, 79–80 separation of powers, 110–11 Czechoslovakia: dissolution, 1–2, 25–26, 142 unitary state and, 71–73 independence, 1, 12, 14, 17–19

dealing with the communist past, see communist legacy; democratic transition debt, private, 4, 183–84 decentralisation, 127–29, 140–41 accession to the EU, impact of, 139–40 early attempted reforms, 22 prago-centrism, 129 territorial self-governing units, 129–31 direct democracy, 133–34 elections, 132–33 EU subsidies, 137–39 financial independence, 136–39 rising municipal power, 134–36 structure, 131–32 see also territorial self-governing units decrees: Beneš decrees, 2, 19, 108–9, 203–4 ministerial decrees (vyhlášky ministerstev), 40–41 democracy: consensus, 62 democratic principle, 60–61 Eternity Clause, 63–64, 77–78 militant democracy, 63 political plurality, 62–63 popular sovereignty, 60–61 Schumpeterian principles of democracy, 61–62 democratic backsliding, 4–6, 209–12 democratic careening, 7, 212 democratic transition, 6, 23–25 accession to the EU, 26–29 dissolution of Czechoslovakia, 25–26 government by the people, for the people, 60–61 dignity, see human dignity direct democracy, 36 lack of, 30 local direct democracy, 133–34 direct presidential elections, 29, 38, 105–6, 116–18, 198 directives: self-governing units, 40–41, 130 dissolution of Czechoslovakia, 1–2, 25–26, 142 unitary state and, 71–73

Index  217 divisions, economic and social, 3–5 see also egalitarianism and economic equality Drittwirkung, 24, 73–74, 185, 199 dual executive, 104–10 Dubček, Alexander, 22 economic/financial crisis, 3, 163, 164, 182–84 egalitarianism and economic equality, 4, 31, 59–60, 77, 170 elections: Chamber of Deputies, 94–100 direct presidential elections, 29, 38, 105–6, 116–18, 198 electoral reform, 97 parliamentary elections: Chamber of Deputies, 94–100 electoral stability, 95–96 instability, 97–100 reform, 97 Senate, 94 Senate, 94 electoral system, 36, 37–38, 80–82, 94–100 Government weakness, leading to, 120–21, 125 local government, 132–33 proportional representation, 80–81, 94–97, 120 emergency powers, 122–24 erga omnes effect, 55–56, 151 Eternity Clause, 41–44, 57, 200, 207–8 constitutional identity, 202–4 constitutional rigidity, 197, 200–2 democratic principle, 63–64 EU law, relationship with, 71, 169–70 Rechtsstaat principle, 60, 64–68, 77–78 rule of law principle, 69, 70, 197, 200–1 territorial self-government, 128–29 unconstitutional constitutional amendments doctrine, 200–2 EU law, 26–29 Czech courts’ relationship with, 159–61 Eternity Clause and, 71, 169–70 European Arrest Warrant judgment, 45–46 Holubec judgment, 47–48 Lisbon I, 45

source of constitutional law, as, 45–48, 50 Sugar Quotas III, 45 supremacy of, 45 see also accession to the EU EU subsidies: European Structural and Investment Funds, 138 corruption and fraud, 138–39 mismanagement, 138–39 PHARE programme, 137–38 SAPARD programme, 138 Euro Amendment, 27–28, 40, 48–50, 57, 75, 90–91, 152, 164, 169–70, 191, 198, 201 judicial activism, 193–94 European Anti-Fraud Office (OLAF): EU subsidy fraud, 138–39 European Convention on Human Rights (ECHR), 50 influence of, 74–76, 169–70, 188–92 European Court of Human Rights (ECtHR), 50 Czech courts’ relationship with, 159–60 influence of, 74–76, 191–92 European Court of Justice, see Court of Justice of the EU European Structural and Investment Funds, 138 corruption and fraud, 138–39 mismanagement, 138–39 European Union: impact, 26–29 see also accession to the EU excessive formalism, prohibition of, 24 executive, see Government; President First Czechoslovak Republic, 2, 6–7, 9, 11–12 independence, 1, 12, 14, 17–19 municipality, 129 President, 110–11 template for later constitutionalism, 18–19, 33 unitary state, 59–60, 72, 197 foreign legal cultures, influence of, 11, 13 Austrian legal system, 12 German legal system, 12

218  Index Hungarian legal system, 12 Soviet legal system, 12–13 US legal system, 13 formal constitutional amendments, 196–98 direct election of President, 116–17, 125–26, 198 Euro-Amendment, 27–28, 48–50, 57, 152, 169–70, 193–94, 198, 201 extent of MP immunities, 100–1, 198–99 formation of government, 87–88 minority governments, 107 Freedom Union, 96 fundamental rights: Charter of Fundamental Rights and Freedoms, 11, 39, 57, 73, 176–78 constitutional entrenchment, 73–76 German influence, 73–74 international human rights law, influence of, 74–76 European Convention on Human Rights: freedom of expression/personality rights, 188–89 influence of, 74–76, 169–70, 188–92 human dignity, 76–77, 175–78 judicial activism, 192–94 principle of laicity, 11 protection of, 170–72 administrative courts, 172–73 constitutional complaints proceedings, 171–72, 174–75 Constitutional Court, 173–74 constitution-conforming interpretation, 172 ombudsman, 175 ordinary courts, 173 positive procedural obligations, 189–90 public/private dichotomy: Constitutional Court, 185 co-ownership and majority principle, 186–87 defamation/personality rights cases, 185–86 family law, 187 German influence, 184–85 tort law, 187

socio-economic rights, 181–82 constitutionalisation of socioeconomic issues, 183–84 debt, 183–84 rationality test, 182–83 scope of rights, 183 generally binding ordinances, 130–31, 133, 135–36 German law, influence of, 12 Bundesverfassungsgericht, 12, 73–74 human rights, 73–74 proportionality analysis, 179–80 governance: by the people, 61 democratic principle, 60–64 for the people, 61 local governance, see territorial self-government Government: central administrative bodies, 108 composition, 106–7 court administration, 145 decrees, 108–9 government by Presidential consent, 118 imbalance of powers with President and Chamber of Deputies, 110 instability, 109–10 local government, see territorial self-government members of parliament, 107 ministries, 107–8 Presidential influence, 117–19 Prime Minister, 106–7 sub-statutory acts, 108–9 weakness, 117–19 see also Chamber of Deputies; ministries; President government accountability, 86, 87, 102, 118, 119–20 government regulations (nařízení vlády), 40–41 Habsburg Empire, 10–11, 59–60, 70, 129, 142–43 Havel, Václav, 3–4, 36, 111–12 constitutional conventions, 52 constitutional drafting, 33–34, 35 US influence, 13

Index  219 higher self-governing units, see regions; territorial self-governing units horizontal application of fundamental rights (Drittwirkung), 24, 73–74, 185, 199 human dignity: fundamental rights, as, 175–78, 204 Rechsstaat safeguards, 68 welfare state principle, 76–77 see also fundamental rights human rights, see fundamental rights Hungarian legal system, influence of, 12 Hussite Movement (1402–1485), 10, 14, 59 hyphen-war, 72, 128 in dubio pro libertate, 24 in favorem restitutionis, 24 informal constitutional amendments, 199–200 inter-war years, see first Czechoslovak Republic International Covenant on Civil and Political Rights (ICCPR), 73, 166–67, 170, 206 international human rights law, 48, 50, 57, 168–69 Euro Amendment, 27–28, 40, 48–50, 57, 75, 90–91, 152, 164, 169–70, 191, 198, 201 judicial activism, 193–94 European Convention on Human Rights, 74–76, 169–70, 188–92 International Covenant on Civil and Political Rights, 73, 166–67, 170, 206 international law: source of constitutional law, as, 48–50 international treaties: categories, 49–50 Euro Amendment, 48–50 Senate, 85 see also Convention on the Rights of Persons with Disabilities; European Convention on Human Rights; International Covenant on Civil and Political Rights interpretation, see constitutional interpretation

judicial activism, 192–94 judicial appointments, 113–14 Chamber of Deputies, 88–89 constitutional conventions, 52–53 Constitutional Court, 88, 151–52 President, 113–15 Senate, 88 judicial boards, 144, 146 judicial decisions: source of constitutional law, as, 54–57 judicial/political distrust, 143–44, 146–49, 161–63 judicial review, 161–62, 170–71 constitutional conventions, 53–54 Judicial Union, 144, 146 judiciary, 146–47 constitutional role, 38–39 remuneration, 163 “sandwich scenario”, 147–49 judicialisation of politics, 164–65 Kaczyński, Jarosław, 10, 163 Kingdom of Bohemia, 2, 10–11 Klaus, Václav, 4, 36–37, 89, 111–12, 113, 117, 208 appointment of judges, 52–53, 114–15 bicameralism, opposition to, 79–80 Charter of Fundamental Rights and Freedoms, 167–68 constitutional conventions, 52–53, 54, 57 Constitutional Court, 152, 162 constitutional drafting, 33–37 court presidents, 152, 162 dissolution of Czechoslovakia, 25, 128 Euro-scepticism, 48 human rights, 73, 167–68 Lisbon Treaty, Protocol, 30, 204 rule of law, 168 scandal, 96 legislative emergency, state of, 93 legislative riders, 91–92 lobbyism, 86 local elections, 132–33 direct democracy, 133–34 local referendums, 133–34 local governance, see territorial self-government

220  Index local referendum, 133–34 local taxes, 136–37 lustration of judges, 24, 147–48, 206 Masaryk, Tomáš Garrigue, 18–19, 110–11, 208 material core of the Constitution, 64–66 members of parliament, 107 abstract review, 150 immunity, 100–1 lobbying, 86–87 scandals, 100–1, 109–10 votes of confidence, 107 migrant crisis, 3, 60 military courts, prohibition of, 39, 157 ministerial decrees (vyhlášky ministerstev), 40–41 ministries, 107–8, 123 ministers (members of Government) appointment, 53–54, 87, 106–7, 117–18 removal, 107 Ministry of Justice: court administration, 143–44, 144–45, 154, 161–63 municipalities: Municipalities Act, 129–31 scope of self-governing powers, 134–36 see also territorial self-governing units nationalism, 59, 212 Nazi occupation (1938), 19, 60, 70, 127–28 annexation of Sudetenland, 1, 72 constitutional crisis, 1–2, 72, 206 ne bis in idem principle, 56, 158 North Atlantic Treaty Organization (NATO), 3, 11, 27, 31, 36 ombudsman, 5, 175, 211 operational sovereignty, 29–30 Opposition Agreement, 3, 96–97, 211 Orbán, Viktor, 10, 163, 209, 210–11 ordinary courts, 20–21, 25 court administration, 154 courts of general jurisdiction, 154–55 Drittwirkung, 184–87 Euro-friendly interpretation of law, 159–61

European Convention on Human Rights, influence of, 188, 191–92 judiciary, 154 appointment, 154 removal, 154 jurisdiction, 143, 154–55 militant democracy, 63 precedent, 55–57 protection of human rights, 169, 171–74 Parliament, 102 Chamber of Deputies/Senate relationship, 84–88 competences, 87–89 corruption, 100–2 court administration, 145 legislative process, 82–84 parties, see parties procedural limits of power: Building Savings judgment, 93 Constitutional Court, 89–92 EET judgment, 93 legislative emergency, state of, 93 Legislative Riders judgment, 91–92 procedural review, 91–93 see also Chamber of Deputies; Senate parliamentary elections: communism, 2 Chamber of Deputies, 94–95 electoral stability, 95–96 instability, 97–100 reform, 97 democratic backsliding, 210–11 governmental weakness, 119–20 President’s competences, 106, 118–19 Senate, 94 super-statutes, 50–51, 84–85 parliamentary immunity, 100–1, 198–99 parties: ANO 2011, 98 Christian Democrats (KDU-CSL), 96, 97 coalition government, 96 Civic Democratic Alliance (ODA), 96 coalition government, 96 Civic Democratic Party (ODS), 95, 97–98 coalition government, 96 scandal, 96

Index  221 Communist Party (KSCM), 96, 97–98 Czech Social Democratic Party (ČSSD), 95, 97–98 electoral reform, 97 Freedom Union, 96 instability of system, 121 Opposition Agreement, 96–97 Party of Direct Democracy (The Dawn), 98 Public Affairs, 97–98 TOP 09, 97–98 Party of Direct Democracy (The Dawn), 98 Pětka (the ‘Five’), 18–19 PHARE programme, 137–38 pluralism, 39–41, 57, 62–63 political instability, 95–100 political plurality, 39–41, 57, 62–63 political sovereignty, 70 accession to the EU, 70–71 conflicts of law, 71 external sovereignty, 70 internal sovereignty, 70 politicisation of the judiciary, 5, 164–65 popular sovereignty, 29–30, 60–61 positive obligations, 181–84 European Convention on Human Rights, 74 Prague and pragocentrism, 72–73, 127–28 see also territorial self-governing units Prague Spring (1968), 1–2, 22, 59, 70, 140, 206 precedent, 54, 54, 55–57 precedenční účinky, 150–51 President, 104–5 competences, 106 constitutional role, 38 court administration, 145 direct election, 116–18 function, 105 Government weakness, 117–20 judicial appointments, 113–15 judicial taming of, 115 position, 105–6 Presidential influence over Government, 117–19 regulation of powers, 104–5 Prime Minister, 87–88, 106–7 principle of laicity, 11

prioritisation of legal constitutionalism, 30, 207 procedural immunity, 101 formal constitutional amendment, 100–1, 198–99 limiting, 101–2 prohibition of special courts and tribunals, 39, 143, 157–58 proportionality, 24, 68, 74, 76, 178–81, 182–83, 199 Protestant reformation, 10, 59 Provisional Constitution (1918), 17 public/private dichotomy: fundamental rights issues Constitutional Court, 185 co-ownership and majority principle, 186–87 defamation/personality rights cases, 185–86 family law, 187 German influence, 184–85 tort law, 187 public administration, 88–89, 108, 130, 138 depoliticization, 124–25 ombudsman, 175 Public Affairs, 97–98, 100–1, 121 rational basis test, 76 positive obligations, 181–84 proportionality, 178–81 Rechtsstaat principle, 60, 64, 77–78 formal Rechtsstaat safeguards, 66–67 material Rechtsstaat, 65–66 organisational Rechtsstaat safeguards, 67 other substantive Rechtsstaat safeguards, 67–68 procedural Rechtsstaat safeguards, 67 rights-oriented Rechtsstaat safeguards, 67–68 rule of law principle distinguished, 64, 66–68 regions, 131–32 Committee of the Regions, 139–40 Constitutional Law establishing the Higher Self-Governing Units, 40 EU subsidies, 137–39 higher territorial self-governing units, 39–40, 129

222  Index restitution, 24, 187, 206–7 church restitution law, 62, 164 rights, see Charter of Fundamental Rights and Freedoms; fundamental rights Roma, discrimination towards, 2, 4 rule of law, 4, 60, 168, 197, 203 communism, 21–22 Eternity Clause, 41–43, 63, 70, 200–1, 203–4, 208 legislative riders, 92 Rechtsstaat principle distinguished, 64, 66–68 rule by/rule through law distinguished, 21–22 separation of powers, 69–70 territorial self-government principle, 135–36 same-sex liberalism, 4 democratic backsliding, 193, 195 SAPARD programme, 138 secularism, 59–60 Charter of Fundamental Rights and Freedoms: principle of laicity, 11 unitary state, 59–60, 71–73, 77 self-administration, see territorial self-government Senate, 80 appointment of judges to Constitutional Court, 88 budgetary procedure, 86 Chamber of Deputies, relationship with, 80–82 competences: international treaties, 85 passing Bills, 84 quasi-legislative acts, 84 super-statutes, 84–85 conflict of interest, 85 elections, 94 Provisional Senate, 81 statutory measures (zákonná opatření), 40–41, 85 terms of office, 80 see also Parliament

separation of powers, 17–19, 68–69 constitutional drafting, 37 Czechoslovak Constitution (1920), 110–11 rule of law, 69–70 territorial self-government, 135–36 socio-economic rights, 181–82 constitutionalisation of socio-economic issues, 183–84 debt, 183–84 rationality test, 182–83 scope of rights, 183 sociological constitutionalism, 7, 11 sources of constitutional law: Austrian legal system, 12 constitutional conventions, 51–54 German legal system, 12 EU law, 45–50 European Convention on Human Rights, 50 Hungarian legal system, 12 international treaties: categories, 49–50 Euro Amendment, 48–50 judicial decisions, 54–57 Soviet legal system, 12–13 super-statutes, 50–51 US legal system, 13 Soviet legal system, influence of, 12–13 ‘sovietisation’ of Czechoslovak law, 12–13 special courts and tribunals: communist era, 143 prohibition of, 39, 143, 157–58 state of emergency: Constitutional Law on the Security of the Czech Republic, 122 coronavirus, 122–14 see also Crisis Management Act statutes (zákony), 40–41 sub-constitutional sources of law, 40–41 sub-statutory acts, 105, 108–9 super-statutes, 33, 40–41, 50, 57, 84–85 ordinary statutes compared, 51 statutes directly implemented by Constitution, 51 statutes passed by both chamber, 50–51

Index  223 Supreme Administrative Court, 142–43, 155–57 judicial decisions, 56–57 Supreme Court, relationship with, 156 war of the courts, 158–59 Supreme Auditing Office, 37, 105–6 Supreme Court, 26, 146–49, 154–55 judicial decisions, 56–57 Supreme Administrative Court, relationship with, 156 war of the courts, 158–59 territorial self-government, 37, 39, 128–29 accession to the EU, impact of, 139–40 autonomy, 129 Constitutional provisions: binding ordinances, 130 exercise of public authority, 130 power of self-administration, 130 right to self-government, 129–30 creation, 129 direct democracy, 133 local referendums, 133–34 directives (nařízení obce or nařízení kraje), 40–41 exercise of public authority, 130 financial independence, 136 allocation of taxes, 137 EU subsidies, 137–39 municipalities, 131 scope of self-governing powers, 134–36 Municipalities Act, 129–31 power of self-administration, 130 regions, 131–32 Constitutional Law establishing the Higher Self-Governing Units, 40 higher territorial self-governing units, 39–40, 129

theory of continuity, 72 Thirty Years War (1618–1648), 10, 14 TOP 09, 97–98 unconstitutional constitutional amendments, 152, 164, 194, 200–2 unitary state, 59–60, 71–72, 129–30 Eternity Clause, 77–78 Slovak federalisation, 72 see also territorial self-governing units United Nations, 25 US legal system, influence of, 13 judicial selection, 38, 149, 151 Velvet Revolution (1989), 2–3, 10, 23–24, 59–60, 128, 206–8 constitutional scholarship, 15–16 democratic transition, 23–25, 30–31 impact, 23–31 vote of confidence/no confidence, 54, 87, 89–90, 107, 118, 121–22 war of courts, 158–59 judicial decisions, 56–57 welfare state principle, 76–77 Charter of Fundamental Rights and Freedoms, 76 egalitarianism and economic equality, 77 human dignity, 76–77 women’s suffrage, 18 Zeman, Miloš, 4, 111–12 constitutional conventions, 53–54 Constitutional Court, 152, 161 democratic backsliding, 210–11 depoliticization of administration, 124–25 President/Government conflicts, 117–18 Presidential powers, 52–54

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