Editor’s Note: Today we publish the 2016 Report on Czech constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Martin Kopa, Assistant Professor at the Law Faculty of Palacký University, Olomouc; Maxim Tomoszek, Assistant Professor at the Law Faculty of Palacký University, Olomouc; Zdeněk Červínek, Junior Lecturer and Doctoral Researcher at the Law Faculty of Palacký University
Last year was constitutionally rich in the Czech Republic. The process of gradual replacement of Justices of the Constitutional Court (hereinafter “the Court”), which lasted for several years, was completed and thus all current Justices have been appointed by President Zeman. Both constitutional scholars and the general public impatiently awaited several of the Court’s decisions. We analyze four of them below. But it was not just the case-law of the Court that mattered. There were controversies of constitutional relevance which became points of wide public debate. We chose one of them for further analysis in part III of this report: a draft bill to constitutionally acknowledge the people’s right to bear arms.
II. The Constitution and the Court
Where in the world have they established the first constitutional court as a sole specialized judicial institution to review laws vis-à-vis their conformity with the constitution? There is a dispute on the correct answer to this question between Austria and countries of the former Czechoslovakia. Both Austrians and Czechs like to argue that their constitutional court was the first one. Both are right in a way. Czechs were first on paper. It was the Czechoslovak Constitution of 29 February 1920 which, as the first constitution in the world, established a constitutional court in the meaning specified above. But the Austrian Constitutional Court founded by the Austrian Constitution of 1 October 1920 started working earlier than the Czechoslovak one.
Sadly, the work of the Czechoslovak Constitutional Court had been interrupted during the Nazi occupation of our country and subsequent communist regime. We had to wait until 1992, when the Federal Constitutional Court started working again. But it did not last long because, at the end of that year, it was clear that Czechs and Slovaks would “get divorced” peacefully. The Czech Constitution, which came into force on 1 January 1993, is regarded as a follow-up to the 1920 Czechoslovak Constitution in terms of values and constitutional traditions. Therefore, it came as no surprise that it included a strong constitutional court.
The Court has the power to review the constitutionality of statutes. It also reviews sub-statutory regulations. The Court’s third important review-of-constitutionality competence concerns treaties before their ratification. The Court had an opportunity to exercise this competence twice in the past. Both cases concerned the Lisbon Treaty.
Does the Court have the power to annul constitutional statutes? Constitutional scholars are not in total agreement on this topic. It is the classic dilemma of what to do in case of unconstitutional constitutional amendments. The Court had to address this issue only once so far. In the Melčák case (judgment no. Pl. ÚS 27/09 of 10. 9. 2009), it derogated a statute which was, in its form, a constitutional one. It was an ad hoc constitutional statute on shortening the fifth electoral period of the House of Deputies. The Parliament did not intend to follow the constitutionally foreseen mechanism on the dissolution of the House. And it enacted a constitutional statute by which it shortened its actual term of office. But one of the deputies disagreed and filed a constitutional complaint. The Court observed, simply put, that this statute did not satisfy the necessary criteria to qualify as a statute, not setting a generally applicable rule of law. In the Court’s view, this “statute” amounted to a one-time “rupture” in the Constitution, circumventing the provisions contained in the Constitution appropriate for the situation at hand. For these reasons, the Court, whose task is to protect constitutionality, had to annul it.
The absolute majority of the Court’s work covers decision-making on individual constitutional complaints. On average, the Court receives 4.000 of them every year. Moreover, the 15-member Court had managed to decide nearly the same number of cases in the past two years. In 2016, the Court found a constitutional violation in nearly 200 cases. In these cases, the Court had to annul decisions of ordinary courts and return the case to them for a new decision.
In addition to these oft-used competences, the Court has several others, e.g. to protect the self-governing regions against unlawful interferences of the state with its right to self-government; to resolve certain electoral matters; or to decide on the impeachment of the President. The Czech Constitution counts on the Court to be an effective protector of constitutionality. For that reason, the Constitution entrusted the Court with necessary competences, making it a key constitutional actor.
The Constitution originally established a rather typical parliamentary form of government with the slightly stronger role of President, tailored to fit Václav Havel. The executive used to be fully dependent on the Parliament. The Government can only exist as long as it retains the confidence of the Parliament’s House of Deputies. And both houses of the Parliament (i.e. including members of the Parliament’s Senate) used to elect the President. But in 2012, the Constitution was amended, introducing direct election of the President. Since there was no persuasive constitutional reason for such a change, it was most likely a result of controversies linked to the way the presidential election was carried out in the Parliament.
This change was criticized by many constitutional lawyers as non-systemic and destabilizing for the constitutional system. Former Prime Minister of Czechoslovakia and former President of the Parliament’s Senate Petr Pithart once wrote that the direct election of the President is like “semtex” put in the bedrock of our Constitution. Given the fact that the Czech Republic is a parliamentary republic, providing the President with strong legitimacy deriving from the people creates tensions (similar to so-called cohabitation known from other constitutional systems) between the President on the one hand and Parliament and Government on the other. The Constitution itself says that the Government is the highest body of the executive power. That is why most important President’s actions within the executive power must be countersigned by the Prime Minister or a member of the Government designated by him. This, however, does not fit the expectations related to a directly elected President, who needs to appeal to voters and to achieve political goals set by electoral agenda.
The presidency of Miloš Zeman proves Petr Pithart was right. The current President “stretches” his competences in contradiction with their meaning and purpose in our constitutional system. This resulted in several political conflicts (appointment of Prime Minister Rusnok against a counter-majority in the Parliament which led to his Government’s failure in a vote of confidence; rejection to appoint professors nominated by their universities for professorship, etc.). Despite the “scratches” it has suffered lately, the Constitution has not “exploded,” yet. And luckily, it keeps deflecting the democratic backslide experienced by Poland and Hungary.
III. Constitutional Controversies
One certainly cannot argue that there was no constitutional controversy to speak of in 2016. The absolute majority of them concerned the executive. One might even argue that the executive has been in the form of constitutional transition since the 2012 changes concerning the position of the President. Many of the controversies demonstrated this “off-stage transition,” reshaping roles of key executive players—the Government and the President.
Just to name some of the controversies, the President became a defendant in a civil defamation case because he said publicly that the late Ferdinand Peroutka, one of the most prominent Czech writers and publicists of the 20th century, wrote an article admiring Adolf Hitler, calling him “a gentleman.” This case led to many questions concerning the liability of the President for false statements. Who should be liable in such cases, the President himself or the state? There was another controversy closely related to the President. More than 60 deputies came up with a draft bill to re-criminalize defamation of the President. One might question whether this draft bill goes against our constitutional traditions in the protection of free speech or not.
One more controversy we would like to mention briefly concerns our Minister of Finance Andrej Babiš. He happens to be a multimillionaire. And he owns several of the most prominent Czech media and one of the major business corporations. In 2016, Parliament passed a law on conflicts of interest (labeled as “Lex Babiš”) which prohibits active politicians from owning media and limits their ability to engage in business activities (for example, their companies are not eligible for state subsidies). It will be an often-raised question even in 2017 whether such a regulation conforms to the constitution or not.
From all the possible options, we chose one particular 2016 controversy for further analysis – the idea to constitutionally entrench the right to possess and bear arms to protect the country. In accordance with the draft bill, there should be a new provision in the Constitutional Act on State’s Security reading: The Citizens of the Czech Republic have a right to obtain, possess and bear arms and ammunition in order to protect lives, health, and property, and to take part in securing domestic order, security and protection of territorial integrity, sovereignty and democratic foundations of the Czech Republic. Conditions and details are set by a statute.
This draft bill left many startled. It is not easy to grasp what led the Ministry of Interior to come up with such a piece of legislation. Why amend our constitutional order with a new constitutional right resembling the 2nd Amendment to the U.S. Constitution? And why have it in the Constitutional Act on State’s Security? There are no other constitutional rights in this act whatsoever. Ministry of Interior noted that in the wake of terrorist attacks in Europe, it is much more effective for the ordinary citizens who have a gun permit to act and protect themselves and fellow citizens against terror. The Ministry observed that the possibility of finishing a terrorist attack is much lower if there is an active and timely defense, not necessarily carried out by security forces.
The problem with this draft bill is that it does not seem to be legally necessary. The sub-constitutional law already allows what the Ministry of Interior would like the Parliament to legislate. Classic criminal law concepts of self-defense and emergency provide sufficient regulation for the cases the Ministry of Interior intends to address. Why adopt such a constitutional amendment in a pretty peaceful “heart of Europe,” then? Some argue that it might be a reaction to the EU’s intentions to limit gun rights. Or that it might be an easy attempt by the Interior Minister to gain political points. One way or the other, we do not think that this draft bill is consistent with European constitutional traditions. There is no “pressing social need” to introduce such a constitutionally protected right. It is already, in substance, sufficiently set in sub-constitutional law. Nevertheless, the draft bill remains in the legislative process. And despite heavy criticism, the Czech Republic may become the first EU country to constitutionally recognize its own version of the “right to bear arms.”
IV. Major Cases
In this part of the report, we briefly discuss four major cases of the Court. We chose these four because, in our opinion, they are the most relevant from the comparative point of view. Two of them are plenary judgments. In these two, the Court reviewed the constitutionality of an enacted law. The remaining two are judgments on individual constitutional complaints. Discussion of the selected cases follows in their chronological order.
1. LGBTQ Rights (judgment no. Pl. ÚS 7/15 of 14. 6. 2016)
In this judgment, the Court granted the motion of the Prague Municipal Court for the annulment of Section 13 (2) of the Act on Registered Partnership (“the Act”). This provision precluded the adoption of a child to persons living in a registered partnership. The crux of the case was that the Civil Code allows adoption by a single person. But the Act explicitly precluded that such a person lives in a registered partnership. The law took the possibility to adopt a child away for those who entered registered partnership. The Court came to the conclusion that the law violated the right to human dignity. It held in the judgment that the Act excluded a specific group of people, who merely enter registered partnership, from the enjoyment of a right. And it made them de facto “second class citizens.” In the Court’s view, the law implied registered partners’ inferiority. And apparently, even an inability to take care of children properly.
As we wrote elsewhere, we endorse the verdict. But the Court’s reasoning is not convincing. Initially, the Court worked with the right to private and family life in conjunction with the prohibition of discrimination. But this line of argumentation was unexpectedly left out. The Court surprisingly twisted the reasoning to the protection of human dignity. This U-turn was probably motivated by the Court’s conservative definition of family. In the Court’s view, the family is not a social construct. It is primarily a biological one covering only the cohabitation of parents with their children, and other forms of cohabitation emulating the biological parental ties (e.g. adoption, foster care, etc.). These passages of the judgment are in sharp contradiction with the understanding of family life in the case-law of the European Court of Human Rights (hereinafter “ECtHR”). It accepts that stable relationships of same-sex couples fall within the notion of “family life.” The Court made no attempt to make a distinction of the case from the Strasbourg case-law. It probably did not intend to provide any foundations for future cases concerning LGBTQ rights (such as second-parent adoption). For these reasons, we are afraid that the judgment is actually more of a loss for the LGBTQ community than a win.
2. Freedom of Expression of Judges and Their Political Activities (case no. I. ÚS 2617/15 of 5. 9. 2016)
The applicant is a judge. He owns a cottage in a little village. There were municipal elections, and he entered the pre-election campaign. He personally made and distributed leaflets describing his personal view on the elections, the political parties taking part in them, and their individual candidates. After the elections, he wrote an article in a local magazine to address the election results and possible coalition alternatives. He also speculated who could become the village’s mayor. The President of the Prague Municipal Court, where the applicant served as a judge, filed a disciplinary action against him. And the Disciplinary Chamber of the Supreme Administrative Court found that he had endangered judicial dignity and abused his judicial position to pursue his private interests. But the Disciplinary Chamber did not impose any disciplinary sanction.
The applicant filed a constitutional complaint against this decision. He argued that his freedom of expression had been breached. The Court made it clear that judges do enjoy the freedom of expression, but it referred to the case-law of ECtHR to stress that judges have special duties of loyalty and discretion. They are necessary prerequisites for the proper and effective functioning of the independent and impartial judiciary which enjoys public trust.
The Court observed that the duty of discretion is important because of our historical experience with the communist regime. It is vital for the judges to stay as far away from the political competition as possible. Judges should comment on politics with restraint. It is always necessary to determine whether the judge’s expression contradicted the values of a democratic legal order. Or whether it violated the public trust in the independence and impartiality of the judiciary. Judges must abide by these rules even in private life. But specific circumstances of their expression matter. One needs to be stricter if a judge specifically points out that he or she is a judge. The same applies if the expression is made to a group of people who know that the person talking to them is a judge. On the other hand, expressions of judges concerning administration and organization of the judiciary enjoy a high level of protection. In this particular case, the Court concluded that the applicant failed to observe his duty of discretion. In the leaflets, he explicitly stated that he was a judge and specifically supported a political party. He strongly entered the public debate by publishing an article in local media which was linked to his judicial position. Therefore, he actively, openly, and excessively entered the political competition. The Court considered that wrong. It found no violation of the applicant’s freedom of expression.
3. Admission of Legal Trainees with Foreign Legal Education to the Bar (case no. II. ÚS 443/16 of 25. 10. 2016)
The applicant obtained his law degree from Jagiellonian University in Krakow. But he wanted to practice law in the Czech Republic. He requested the Czech Bar Association (hereinafter “CBA”) to register him in the register of legal trainees. But the CBA declined to do so. Czech law provides that graduates of foreign law schools may be registered if 1) their law degree is recognized as equivalent to the Czech one by the Ministry of Education, and 2) the contents and the scope of their law degree corresponds to a Czech law degree. In the CBA’s view, the applicant did not satisfy the second condition, because he only knew Polish law.
The applicant sued CBA. He requested the Court to order CBA to register him. But even the ordinary courts thought that he had no right to be registered. Courts did not agree with the applicant that his right to be admitted to the Czech Bar results from EU law. They argued that the case-law of the Court of Justice of the EU (hereinafter “ECJ”) provides member states with a large room to maneuver in recognition of foreign law degrees.
The applicant filed a constitutional complaint. The Court ruled in his favor. It found a violation of the freedom to choose an occupation. It is not only theoretical knowledge of the law—law on the books—that counts. Lawyers also need to possess practical experience and skills. In the Court’s interpretation of the ECJ’s case-law, domestic authorities should not take account of only the diplomas or the certificates of one’s education they should also consider their practical experience. In addition, the Court observed that Jagiellonian is the no. 1 law school in Poland. And generally, Polish legal education, including the development of clinical legal education there, serves as a “golden standard” for legal education in Europe.
The Court found the perspective of CBA to be too narrow. Despite not having been formally admitted to the Czech Bar, the applicant had practiced law for many years. His law degree was a high-quality one. The Court added that it was the business of a legal trainee’s supervisor, whom she hires as a trainee. It is the Bar exam where a trainee must prove his knowledge and skills. Therefore it was not proportionate to reject the applicant’s registration. The Court found that the rejection did not meet the criterion of necessity as the second stage of proportionality assessment. There was one option which would fulfill the aim pursued by the CBA (safeguarding the quality of legal services), and at the same time, it would be less restrictive to the applicant’s right: to register him and let him practice under the supervision of an attorney-trainer, who would be responsible for everything the trainee does.
4. The Right to Privacy and Access to Information in Communist Secret Service Archives (case no. Pl. ÚS 3/14 of 20. 12. 2016)
It is an important part of the transition to democracy to allow the public access to the documents produced by law enforcement of the former totalitarian regime. In the Czech Republic, this access is granted by Act on Archives (hereinafter “Archive Law”). It provides that, unlike other archive documents, the access to archives of totalitarian police cannot be prevented by the people whose personal data are contained in those materials. One such person sued the Czech Republic for compensation of immaterial harm caused by granting access to archive materials to a journalist. The case arrived before the Supreme Court, which came to a conclusion that the relevant provision of Archive Law is a disproportionate limitation to privacy. And it referred the case to the Court.
The Court decided that the law at hand was fully compatible with the Constitution. According to the Court, there is a significant difference between granting access to personal data contained in archive documents and their publication. When the law grants public access to the archive documents, it does not automatically allow their publication. Even repeated individual access by different people to archive documents is not the same as their publication since it represents a significantly lesser limitation of the right to privacy of persons whose personal data are at stake. According to the Court, this difference was clear also in the case decided by the Supreme Court, where the publication of the information gathered in the archives was stopped after the affected person refused to give their consent to it. Mere access of the journalist to the archive documents could not cause defamation since the information was not made public and thus could not affect the reputation of the affected person.
The decision of the Court is very important for drawing a clear line between individual access to information and their publication. In this way, the public is guaranteed “the right to know” without automatic destruction of one’s reputation. This principle is applicable in several areas besides archives, like freedom of information, investigative journalism, and others.
Seven judges concurred with the majority reasoning, stating that the unlimited access to archives of the Communist Secret Service, although in the form of individual requests, would be a disproportionate limitation of privacy. However, according to the minority opinion, there is a special provision in Act on Access to Archives of the Communist Secret Service which is applicable and grants at least a moderate level of protection to individuals whose personal information is contained in the archives.
The two mentioned cases reviewing the constitutionality of legislation serve as evidence of the growing importance of ordinary courts in judicial review. Both cases were referred to the Court by other courts. In 2015 and 2016 combined, ordinary courts asked the Court to review the constitutionality of applied law in 20 cases, many of which have not been decided yet.
In all four discussed cases, the Court has protected the constituent values of the Czech Republic—equality, freedom, and democracy. All four cases also have significant overlap with other situations, especially based on more general considerations made by the Court.
Considering the latest developments in Poland and Hungary, we appreciate that the Court retained its independence and a moderate level of activism, preserving its position as the most important safeguard of democracy and the rule of law in the Czech Republic. Even though many acts of the current president Miloš Zeman were very controversial, the timely and balanced appointment of judges of the Court was one of his most positive achievements.
 See English excerpts from Tomáš Langášek, Ústavní soud Československé republiky a jeho osudy v letech 1920-1948 (Constitutional Court of the Czechoslovak Republic and its fortunes in years 1920-1948) (Vydavatelství a nakladatelství Aleš Čeněk, 2011) available at Usoud.cz, “Constitutional court of the Czechoslovak republic and its fortunes in years 1920-1948” (Usoud.cz, 2015) http://www.usoud.cz/en/constitutional-court-of-the-czechoslovak-republic-and-its-fortunes-in-years-1920-1948/ accessed 8 January 2017.
 Petr Pithart, “Semtex položený do základů – Přímá volba prezidenta a její rizika v českém prostředí (ENG: Semtex in the Bedrock – Direct Election of the President and Its Dangers in Czech Setting)” (Pithart.cz, 20 February 2012) http://www.pithart.cz/archiv_textu_detail.pp?id=518 accessed 27 January 2017.
 The court of the first instance and the appellate court so far concluded that the state is liable for speech made by the President in his official capacity. The case is pending before the Supreme Court.
 The full text of the judgment in English is available here: http://www.usoud.cz/en/decisions/20160614-pl-us-715-civil-partnership-as-preclusion-to-individual-adoption-of-a-child/.
 Zdeněk Červínek and Martin Kopa, “Czech Constitutional Court: Czech Law Forbidding Registered Partners to Adopt Children is Unconstitutional But Is the Judgment *Really* Good News for LGBTQ?” (Int’l J. Const L. Blog, 29 July 2016) http://www.iconnectblog.com/2016/07/czech-constitutional-court-czech-law-forbidding-registered-partners-to-adopt-children-is-unconstitutional-but-is-the-judgment-really-good-news-for-lgbtq accessed 27 January 2017.