Pavel Rychetský: Foreign constitutional Courts in the case law - The Czech experience (ABSz, 2022. Különszám, 4-10. o.)

I. Introduction

Four centuries ago, British poet John Donne said: "No man is an island."[1] I, as the President of the Czech Constitutional Court (hereinafter: "CCC"), can add to this that no constitutional court is an authority unto itself. Constitutional courts, too, are part of a greater whole, which influences, conditions, and develops them.

Constitutional courts are assumed to be an ultimate authority, and this is deduced from their position at the top of the national systems of judiciary and from the fact that their decisions are final, formally unchallengeable, and not irrevocable by any other governmental power. So as to keep constitutional law from being the monolog of a handful of justices, the constitutional court cannot function without an institutional framework and functional ties, which exist within the state, but also outside of it. If one of the basic principles of the modern democratic state is the division of power into the legislative, the executive, and the judicial branches, which keep each other in a state of mutual checks and balances, it is impossible to avoid conflicts over the execution of these rights, which must be resolved in a peaceful, though decisive, way. If this very state enters into international agreements, on the basis of which it transfers some of its rights to international organizations or absorbs the international agreements in its own legal system, then constitutional courts must, in their decision-making, take into account other, extraterritorial, aspects.

Working with international expertise, sources, and procedural analyses of the bodies of constitutional protection from other countries that may have found themselves faced with the same application-related questions in the past can help a constitutional court find the right solution for the, often difficult, tasks it is entrusted with. My goal is to illuminate the experiences of the CCC with the implementation of foreign jurisprudence.

II. Defined by the Constitution - References in the Constitutional Court's Decisions

Pursuant to Article 83 of the Constitution of the Czech Republic (hereinafter: "Constitution"), the CCC is the judicial body responsible for the protection of constitutionality. Its task is to hear disputes over constitutionality and to act as the highest interpreter of the constitutional order. The "constitutional order" is linked to the fact that the Constitution is comprised of several constitutional acts and thus the concept of constitutional order - which is binding on the CCC - is comprised of a set of laws of the highest legal force, i.e. laws with the force of a constitutional law. Although a legal definition, such as the Czech one, is not typical in other constitutions, the Czech legislature chose to define specifically which legislation should fall within the concept of constitutional order, which also determines the CCC's decision-making, since noncompliance with the constitutional order is a criterion for repealing a piece of legislation - or any provisions thereof, and is also a criterion for assessing conformity of an international treaty with the constitutional order of the Czech Republic. Article 88 (2) of the Constitution then says that in making their decisions, the justices of the CCC are bound only by the constitutional order and by the Act on the Constitutional Court. The precise definition of the constitutional order is also important in situations when the Senate wishes to file a constitutional action against the President of the Republic, as such action may be filed also for gross violation of the Constitution or any other part of the constitutional order. This is also important for judges of ordinary courts who may bring a matter before the CCC if they believe that a piece of legislation they have to apply is in conflict with the constitutional order.

Although the European Court of Human Rights (hereinafter: ECtHR) in Strasbourg cannot be perceived stricto sensu as a constitutional court, in the first decade during which the CCC formed its initial case law, the ECtHR served as an inspiration and influence on constituting the key theses and doctrines of the CCC. This was further reinforced by the fact that the language of Article 10 of the Constitution stated that "Promulgated treaties, to the ratification of which Parliament has given its consent and by which the Czech Republic is bound, form a part of the legal or-

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der; if a treaty provides something other than that which a statute provides, the treaty shall apply."

Taking this design into account, the Constitutional Court has often reviewed the constitutional conformity of laws not only in the light of the Constitution or the Czech Charter of Fundamental Rights and Freedoms (Charter), as national reference instruments, but also that of the Convention[2]. There are a number of CCC judgments, often very important ones, which were rendered before the Euro-amendment of the Constitution.[3] The CCC judgment ÚS 43/93 abolished the offenses of defamation of the Parliament, the Government and the Constitutional Court contained in the Criminal Code for conflict with Article 17 of the Charter and Article 10 of the Convention. In doing so, the Constitutional Court relied on the ECtHR case law:

"Likewise, Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms places similar demands on our legal order in terms of the Czech Republic's international legal obligations and lays down conditions similar to those of Article 17 of the Charter, namely limits statutory restrictions of the rights and freedoms only to measures which are necessary for the protection of values which values essentially correspond to the list contained in Article 17 of the Charter (the form of words in the Charter was inspired by Article 10 of the Convention). Consequently, in reviewing Section 102 of the Criminal Code, great importance is attached to the understanding of the concept of legality and statutory restrictions of civil rights as understood by the international community under the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as their interpretation in the case law of the European Court of Human Rights."

A conflict with the Charter, but in particular with Article 6 (1) of the Convention, was the reason for a number of derogating interventions of the CCC into the regulation of administrative justice.[4] The key judgment that completely changed the design of the administrative justice in the Czech Republic was the CCC decision Pl. ÚS 16/99, by which it revoked the entire Part V of the Code of Civil Procedure. Here, too, the key reason to justify the derogation was a contradiction with Article 6 of the Convention:

"[...] the processes and competences of the current administrative judiciary in the Czech Republic are generally in compliance with the Constitution and the Charter, but fail to comply with Article 6 (1) of the Convention when the Convention clearly requires that a court or a similar authority decides on the matters of law (i.e. the substance, not the legality of a previous administrative act). In our legislation, the court can only revoke an unlawful decision, but not a materially defective one. In other words, the administrative discretion of a dependent body cannot be replaced by an independent judicial discretion. If this is the case in matters of ‘civil rights and obligations' and ‘administrative penalties' within the meaning of the Convention, this situation is unconstitutional ..., ... it is contrary to Article 6 (1) of the Convention and, in general, to the constitutional order of the Czech Republic. In the Constitutional Court's view this defect cannot be solved other than by a fundamental change of the design of administrative justice. Given the extensive ECtHR case law, it will be the task of the legislator to ensure full judicial control in all areas which are considered to be ‘civil rights and obligations' under Article 6 (1) of the Convention in this case law [...]."