[Editor’s Note: This is the sixth installment in our Year-in-Review series. We welcome similar reports from scholars around the world on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy, the Slovak Republic, Romania, Belgium and Sweden. As we have done in the past, we reiterate our sincere thanks to our contributors for how much they have contributed to our learning and appreciation of public law around the world. Today we give great thanks to our contributors from the Czech Republic. –Richard Albert]
—Zdeněk Červínek, Martin Kopa, Maxim Tomoszek (Palacký University in Olomouc, Faculty of Law), Jaroslav Benák, Ladislav Vyhnánek (Masaryk University in Brno, Faculty of Law)
The Czech Constitutional Court (hereinafter “CCC”) belongs to the category of constitutional courts with pretty strong competences. It has the power to annul laws inconsistent with the constitution if the motion for the CCC to do so is filed by the President of the country, by the Government, by a required number of Deputies or Senators, by an ordinary court deciding in a particular case, or by an individual lodging a constitutional appeal.
The vast majority of cases concerns individual constitutional appeals against the decisions of ordinary courts. The CCC has the authority to annul them if they led to a violation of an individual’s fundamental rights guaranteed by the Czech Constitution.
The CCC underwent a significant change in its composition in years 2013 and 2014, as 13 new justices out of total of 15 were appointed, all of them by the President Miloš Zeman. For this reason, 2015 can be viewed as the first peak into the next era of the CCC, which might be perceived as the Zeman Court, the same way as the previous two decades of the CCC were perceived as Havel’s Court (1993-2003) and Klaus’s Court (2003-2013). We would like to draw the attention of readers to important decisions from the area of separation of powers, European Law and several areas of fundamental rights – compulsory vaccination, access to courts and asylum and alien law.
The Separation of Powers
Right in the beginning of 2015, the CCC issued a decision in a case of judicial review of the parliamentary disciplinary proceedings (case no. Pl. ÚS 17/14, 13. 1. 2015). If a member of the Czech Parliament commits a minor offence, the current Czech legal regulation gives them two options – either they can choose to resolve this in standard proceeding before an administrative authority, or they may choose to resolve the matter in the disciplinary proceedings within their respective chamber of Parliament. In the analyzed case, a Senator has chosen to have his matter resolved in the disciplinary proceedings. The committee for mandate and immunities decided that the Senator has committed an offence and imposed a fine of 20.000 CZK (approximately 800 EUR). After the appeal of the Senator, the decision was confirmed by the whole Senate. The Senator challenged both these decisions by a constitutional appeal, objecting the breach of the right to a fair trial.
The crucial question to decide by the CCC was, whether courts have the authority to review the disciplinary decisions of the chambers of Parliament. The majority of the CCC decided, based on their understanding of the principles of separation of powers, autonomy of the Parliament and judicial restraint, that the parliamentary disciplinary proceedings are the manifestation of the autonomy of the Parliament and are therefore excluded from the judicial review. This conclusion raised a question, if such exclusion of judicial review does not constitute the breach of the right to judicial protection of fundamental rights of the Senator. The CCC decided that there was no breach of the right to judicial protection, because the Senator himself has chosen the path of disciplinary proceedings, where the judicial review is excluded. Had he chosen to resolve his matter before administrative authority, he would have had full access to judicial review in administrative courts and possibly even before CCC.
Finally, the case at hand raised a question of application of Art. 6 § 1 of the European Convention on Human Rights (hereinafter “the Convention”) to the parliamentary disciplinary proceedings. The CCC took into consideration the principle of the autonomy of the Parliament, the specific nature of the parliamentary disciplinary proceedings, and relatively wide margin of appreciation applied to the regulation of immunities and parliamentary proceedings. It decided that Art. 6 § 1 of the Convention does not apply. It is, however, important to note, that there were four dissenting opinions submitted, which disagreed with overly straightforward and strict application of the principle of separation of powers, which did not take into account the mechanism of checks and balances.
In case no. I. ÚS 3018/14 of 16. 6. 2015, the CCC ruled that the parliamentary immunity must be understood as the protection of the Parliament as a whole, with two main functions: preventing obstructions of the activity of the Parliament and creating a safe space for parliamentary debate. The CCC also limited the previous interpretation of immunities by the Supreme Court, which was too wide.
On 30. 6. 2015, the CCC decided to uphold the Law No. 234/2014 Coll., on State Service (case no. Pl. ÚS 21/14), with the exception of a single provision. The President of the country challenged the law for several procedural and material reasons. The CCC had agreed with the President that there were several breaches of the Rules of the Parliamentary Procedure. However, their intensity was not intensive enough to justify annulling the adopted law, which would create huge amount of legal uncertainty and affect the legal situation of many individuals. As for President’s material objections, the CCC accepted only the critique of limiting the authority of the Government to decide on organizational structure of the independent administrative authorities (such as the Czech Telecommunication Authority or State Agency for Nuclear Safety). According to the law, the Government could not reduce the number of their public employees in certain class neither reduce the budget for their salaries without the consent of the presidents of these authorities. According to the CCC, that would be in breach of the principle of accountability of the Government to the Parliament, which cannot be amended even by a law adopted by the Parliament with the consent of the Government.
Perhaps the most important case of 2015 where the CCC had to deal with European law was the case no. Pl. ÚS 14/14 of 19. 5. 2015, concerning the 5% threshold in the European Parliament elections. The Czech Republic is amongst those EU countries that introduced the (optional) legal threshold; some EU member states have set a lower threshold, while other organize the elections without one.
The case was initiated by two candidates in the 2014 European Parliament election in the Czech Republic who did not succeed in earning a seat in Strasbourg/Brussels due to the existence of the 5% national legal threshold. They asked the Supreme Administrative Court, the Czech judicial authority on electoral affairs, to annul the election of the two candidates who were elected to the European Parliament with the fewest votes. Had the 5% threshold not existed, they would have been replaced by the applicants. Together with the request for the annulment of the two candidates’ election, the applicants also petitioned for the annulment of two provisions of the Czech European Parliament Election Act. They challenged the provisions of the Act that introduced the threshold; they argued these provisions hinder the free competition of political parties in a democratic society and violate the principle of voting equality as well as the right of citizens to equal access to elected functions. The Supreme Administrative Court accepted their arguments and asked the CCC to decide on the constitutionality of the contested provisions.
One of the key questions in this case was, whether and to what extent can the principle of equal voting power (that has been established in the previous case law of the CCC, clearly inspired by its German counterpart’s case-law) be applied to a supranational parliamentary body. The CCC held that even in the case of EP elections, the 5% legal threshold does limit the principle of equal voting power and that it therefore must pass a proportionality test (or be declared unconstitutional). The CCC, however (and unlike the German Constitutional Court in its two well known cases), concluded that the legal threshold was a justifiable restriction of voting equality, free electoral competition of political parties and of the citizen’s right to equal access to elected functions, because it is a proportionate measure capable of contributing to the main objective – the effective representation of the will of citizens in the European Parliament.
While doing this, the CCC has shed some light on how it views the relationship between the national and European constitutional systems. It expressed the opinion, that the proportionality analysis (effectively – its strictness) must be influenced by the fact that the Czech Republic’s constitutional system does not operate in a vacuum and that it must be interpreted with regard to the well-being of the European constitutional system as well. The threshold should accordingly not be seen as a purely domestic constitutional issue. The traditional constitutional principles (such as the equal voting power principle) should thus be interpreted in a more relaxed manner in order to allow some flexibility for the EU in organizing its operations to better suit its specific make-up. Consistently with this line of reasoning, the CCC rejected the argument that the national threshold cannot be compellingly justified. It had only a marginal impact on the composition of the European Parliament as a whole and it is not rationally connected to the goal it pursues. The CCC majority developed a highly pro-European solution when it called for a multilateral obligation leading to the solidary responsibility of all member states. The states should not view themselves as a small portion of the whole, whose internal regulation of the European Parliament election will not influence others. If every state did the same, then the effect would not remain marginal.
- Press release in English available here
Hardly anything in the Czech public debate was discussed as fiercely as the issue of compulsory vaccination. The CCC also made its contribution to this ongoing debate. We comment particularly on 3 most important decisions.
In case no. Pl. ÚS 19/14 of 27. 1. 2015, the Court rejected the motion to annul Art. 46 of the Act on Public Health Protection (hereinafter “APHP”) which sets out general framework for mandatory vaccination. Firstly, the CCC rejected the argument that the contested provision violates the principle of legality which authorized the Ministry of Health to set the scope of mandatory vaccination by means of a decree. The CCC found the content of the contested provision sufficiently clear, comprehensible, and setting out basic attributes and limits of mandatory vaccination against infectious diseases. The authorization to specify the details of the realization of mandatory vaccination given to the Ministry of Health was used properly. The respective decree did not exceed the given limits. It did not interfere with essential aspects of the subject matter provided for by the statute. Secondly, the CCC reviewed if the interference of mandatory vaccination with physical integrity of an individual (as a part of a broader right to respect for private and family life) is justifiable. After “checking the boxes” of legality (discussed above) and legitimate aim (public health protection), it focused mainly on the “necessity in a democratic society” stage. Within this criterion, the CCC noted that it is not authorized to assess technical aspects of this issue including the reasons which led the legislator to the introduction of mandatory vaccination. However, statistical data provided by the Ministry of Health and international authorities speak for the mandatory vaccination schemes as the most effective means of prevention against the spread of infectious diseases and protection of public health. In the upshot, these arguments prevailed over the privacy rights of the appellants. Finally, as obiter dictum, the CCC called upon the legislator to amend the legal regulation of state responsibility so as to cover possible harm suffered as a result of vaccination. The CCC noted that if the state sets out general obligation to undergo vaccination and sanctions a breach thereof, it has to be ready to remedy any harm suffered as a result of mandatory vaccination.
In the subsequent case no. Pl. ÚS 16/14 of 27. 1. 2015, the Court rejected the motion seeking the annulment of Art. 50 APHP for its alleged violation of appellant’s right to education. The impugned provision states that the preschool educational facilities are only allowed to admit children who have undergone mandatory vaccination. It must be certified that they are immune to infection, or that they cannot undergo vaccination due to permanent contraindication. The Czech Charter of Fundamental Rights and Freedoms (hereinafter “the Charter”) grants a broad discretion to the legislator in shaping economic, social and cultural rights, including the right to education (see Art. 41 of the Charter). For that reason, the Court opted for the deferential standard of review, the so-called rationality test. Within its framework, the Court found the contested provision rational because it did not interfere with the core of the right to education, it follows a legitimate aim (the public health protection), and it fulfils the requirement of rationality. The CCC held that vaccination, as means of immunization against selected infectious diseases, presents a social benefit which requires shared responsibility of all members of society. Undergoing the minimal risk connected to vaccination represents an act of social solidarity as only vaccination of sufficient majority of the population prevents the spread of selected diseases and creates so-called collective (“herd”) immunity. Considering these findings, the CCC found the vaccination requirement rational and it found no violation of the appellant’s right to education.
Case no. I. ÚS 1253/14 of 22. 12. 2015 concerned alleged unconstitutionality of a fine imposed on parents for committing a minor offence by not letting their child to undergo a compulsory vaccination. They relied on their thought, conscience, ethical, rational and philosophical beliefs. In this case, the CCC created an exception from the general duty to undergo vaccination on the basis of the conscientious objection based not only on religious, but also on secular reasons. Unlike the conscientious objection based on religious belief or faith, the secular one might substantially vary in its content. It is always determined by specific conviction, motivating the constitutional rights holder to object. The exception from the general legal duty in both cases arises only in exceptional circumstances, closely related to the affected person or his or her next of kin (e.g. in case of a person‘s previous highly negative reaction on vaccination or if such a reaction appeared in case of his or her child). In this particular case, the CCC found that such exceptional circumstances existed. Given the high level of vaccination coverage of the population, they have justified the non-enforcement of the vaccination. Sanctioning the parents was not necessary.
Access to Court
Since 1993, when the CCC was established, it has been involved in many cases concerning various forms of obstacles to the right of access to court. These obstacles have been gradually removed and the “black holes in which a legal norm exists but the public body is free to violate it without the possibility of judicial review” (Barak: Judge in Democracy, 2008, p. 194) have been narrowed.
In 2015, the case-law of CCC continued in this trend. In the plenary judgment no. Pl. ÚS 12/14, the CCC dealt with an exemption from judicial review in respect of suspended payment of a part of a subsidy co-financed from the EU budget. The managing authority (i. e. the governmental agency responsible for projects’ monitoring) was entitled to suspend subsidy payments in case of suspected violations of grant rules (such as requirements of public procurements). These decisions (that were based solely on suspicion of the agency) were excluded from judicial review. The Supreme Administrative Court challenged this exclusion before the CCC. It decided that it was unconstitutional to avoid judicial review of these administrative decisions. The judgment is based on two reasons. Firstly, for the CCC, a democratic State governed by the rule of law is characterized by the principle of legal certainty, consisting, inter alia, of the fact that legal rules must be clear and precise and must ensure that legal relationships and their consequences remain predictable for their addressee. The principle of legal certainty must be connected with a prohibition of arbitrariness so that the margin for discretion on the part of governmental authorities is limited by procedures preventing abuse of such discretion. At the same time, the best prevention of and subsequent protection against arbitrary conduct is ensured by access to justice, i.e. to a court that will subject the administrative discretion to judicial review.
Secondly, the Charter explicitly prohibits the exclusion of judicial review of administrative decisions in cases concerning human rights. According to the judgment, once the grant is awarded to a particular grantee, there is a legitimate expectation created. The grantees expect that they will receive the subsidy if they fulfil all grant rules. Such expectations are part of the human right to the protection of ownership (under Art. 11 of the Charter). Therefore the administrative decision to suspend payment of the subsidy is a decision concerning human rights and cannot be excluded from judicial review.
In case no. IV. ÚS 3572/14 of 13. 10. 2015, the CCC considered the issue of standing to initiate the judicial review of land use planning documents. The appellant, an association (non-profit making corporation of civil law), asked the court to review the development principles of the South Bohemian region. The access to court in land use planning issues is based (in accordance with the § 101a of the Code of Administrative Justice) on the injury standing doctrine. Only those who are directly affected by the plan can ask the court to review it. In most cases the initiators are the landowners whose property is regulated by the plan.
The CCC found the opinion of the Supreme Administrative Court, according to which associations founded with a view to nature conservation and protection of the landscape and environment lack standing to file an application for annulment of a measure of general nature, an inadmissible denial of access to court.
In general, standing can be established subject to certain preconditions. An association claiming annulment of land use plan must primarily assert that the measure affected its rights. Such an assertion must specifically define the interference that was allegedly caused by the regional or local government. It is not sufficient if the association claims that the given measure of general nature or the procedure leading to its issue was unlawful – without simultaneously asserting that the unlawfulness affects its legal sphere. Substantial criterion must again lie in the local (geographical) relationship of the applicant to the given locality and, furthermore, the professional focus of the association on an activity that has local sense. Substantive (material) grounds of legitimacy that are based on the association’s objects of activities are then inferred from the local relationship to the contested measure of general nature. In some cases, the local and substantive reasons may act in mutual synergy and the association need not in fact be “ecological”. If citizens living in a certain city or town found an association to protect their interests and a certain measure of general nature is to interfere with the recreational area where they are accustomed to spend their free time, it might be possible to acknowledge the association’s standing.
Asylum and Alien Law
In 2015, the CCC faced several interesting asylum and alien law cases. There are three of them which we find worth discussing even from a comparative point of view.
Case no. II. ÚS 1017/14 of 26. 5. 2015 concerned the constitutional appeal of a Russian woman who requested her release from preliminary (extradition) detention. The applicant was detained because Ukraine requested her extradition for the purposes of criminal prosecution. At the same time, Czech Ministry of Interior granted subsidiary protection to the applicant. The reason for granting subsidiary protection was the real risk of serious harm in her home country – Russia. The applicant argued that she could not be extradited since the subsidiary protection was granted to her. For that reason, the CCC had to decide whether a person, who enjoys subsidiary protection, may actually be removed to another country, which is not covered by the territorial extent of the granted subsidiary protection. The CCC stated that such a removal is possible. But at the same time, it emphasized that it is necessary to carry out thorough individual assessment of several issues, namely the observance of the non-refoulement principle. The CCC held that the applicant would not face real risk of ill-treatment or fair trial violation in Ukraine. The subsidiary protection only concerned her facing a real risk of serious harm in Russia. In the CCC’s view, the granting of subsidiary protection did not in itself block the applicant’s extradition to another country. It followed that Minister of Justice still had green light to make a decision on the applicant’s extradition and her detention could therefore continue.
In 2015, the CCC also had to deal with one case concerning the so-called health non-refoulement (decision no. IV. ÚS 3608/14, 20 April 2015). Ukrainian applicant requested international protection in the Czech Republic. After his arrival to the country, he was diagnosed with HIV. He argued that he would face inhuman and degrading treatment if he was removed to his home country, because there is no adequate health care in Ukraine. The CCC did not come to the conclusion that HIV infected persons would be deprived of health care and placed on the edge of the society in Ukraine. In the Czech Constitutional Court’s view, the general level of health care in a given country cannot, in itself, be a reason for granting asylum. It also stressed that there is no legal entitlement to the humanitarian asylum. It depends on administrative discretion of Ministry of Interior. Exercise of this discretion is not reviewable by the CCC. It may only assess if the administrative interpretation of law was arbitrary or not. Since it was not the case, the CCC declared the application manifestly ill-founded.
Case no. IV. ÚS 3608/14 may be regarded as another episode in the health non-refoulement saga (Strasbourg cases like D. v. the United Kingdom and N. v. the United Kingdom or Luxembourg cases like Abdida and M’Bodj). Everyone can’t wait for the “grand finale” of this saga which is highly expected from the ECtHR judgment in Paposhvili v. Belgium case heard before the Grand Chamber more than a year ago. We’ll see what the Strasbourg judges come up with and what consequences will the Paposhvili case have for domestic case-law including the case-law of the CCC.
The last case we would like to address in the asylum and alien law part of the 2015 review is judgment no. I. ÚS 860/15 of 27. 10. 2015. In this case, the applicant claimed that he was subjected to degrading treatment in the course of his administrative removal. The CCC noted that the quality, maturity and humanity of every society depends on the way it treats the most vulnerable and those who ended up on its edge for whatever the reason. This includes aliens who reside in the country without the necessary permission. The CCC did not question the fact that the decision on removal may be executed by the police even against the alien’s will. But it must be executed in a way fully respecting the dignity and rights of removed aliens. They are not mere objects that need to be transfer from point A to point B at any time chosen by the police. The removal must be humane and respectful to a person as a subject of rights. These conditions were not met in this case. The applicant had not been informed on the time and way of his removal sufficiently in advance. It was probably the reason why he did not co-operate. This resulted in the use of force by the police. Police should prevent conflict and decrease the tension, not in increase them, or even cause them. The CCC therefore found that there was a violation of the prohibition of degrading treatment.
- Press release in English available here
In 2015, the CCC faced a lot more challenges in other cases not addressed above. The subject-areas the CCC has to deal with are extremely wide. And the CCC still faces substantial backlog (as of 31. 10. 2016, there were 1,700 unfinished cases). Last year, the CCC received nearly 4,000 constitutional appeals and other motions. That is all, indeed, a lot for a 15-member court. But it managed to decide nearly the same number of cases in 2015 – there were 222 judgments and 3633 decisions rejecting the constitutional appeals. In 194 cases, the CCC found a violation of the constitution. In 2016 report from the case-law of the CCC, we will analyze if it managed to keep up the pace.
Suggested Citation: Zdeněk Červínek, Martin Kopa, Maxim Tomoszek, Jaroslav Benák, Ladislav Vyhnánek, Developments in Czech Constitutional Law: The Year 2015 in Review, Int’l J. Const. L. Blog, Nov. 16, 2016, at: http://www.iconnectblog.com/2016/11/developments-in-swedish-constitutional-law-the-year-2015-in-review