CYIL vol. 7 (2016)

500

MARTIN KOPA

CYIL 7 ȍ2016Ȏ

Senate.

Is it constitutionally admissible, then, that the same majority does not apply

to human rights treaties? These can be ratified after consent given by both chambers

of the Parliament and such consent may be given by a simple majority.

The practice

of the government in negotiating and ratifying international human rights treaties,

described in the fourth chapter of the book, therefore seems to be inconsistent

with the case-law of the Constitutional Court. And

de constitutione ferenda

, since the

Bankruptcy judgment is still good law, we may suggest that international human rights

treaties be included in Article 39 (4) of the Constitution in order for them to be ratified

after consent of the qualified majority of both chambers of the Czech Parliament.

On the other hand, I am “on board” with the author in support of the draft

amendment of Article 63 (1) (b) of the Czech Constitution under which the President

of the Republic negotiates and ratifies international treaties. If the amendment is passed,

the word “negotiates” will be left out from this provision. That would be a reasonable

step, since the government is the actual “engine” of negotiation of international treaties,

as the author emphasizes (p. 71).

3. Human rights treaties in domestic law

What I liked about the book is that it escalates in terms of suspense. And the sixth

chapter brought a very interesting plot change. I must confess that I always regarded

myself as an opponent of the Bankruptcy judgment of the Constitutional Court

mentioned above. I supported the critics of this judgment who persuasively argue

that it is plainly wrong and that it turned the “Euroamendment” of our Constitution

on its head. But Ivo Pospíšil, author of the said chapter, made me revisit this position.

He argues that judges of the first instance courts, who are buried under truckloads of

cases they have to deal with, simply have no time to follow the developments in case-

law of human rights courts. Do you remember the story of my criminal case I told

you above? You cannot have better evidence proving that Ivo Pospíšil has a point.

Besides, the human rights principles are so general and vague that uniformity in

understanding which legal rule is in contradiction with international human rights

treaty may be pretty hard to reach. In the specific Czech circumstances, unification

of case-law would be slow and ineffective (p. 103). The author adds an illustrative

example of a case

where the requirement of direct application of Article 5 (4) of the

European Convention on Human Rights only led to destabilization of practice and

the Constitutional Court later had to derogate the particular provision of the criminal

procedure code

to safeguard the legal certainty of everyone involved. I must admit

that the author’s arguments are persuasive from the practical point of view.

See Article 39 (4) of the Czech Constitution.

See Article 10 and Article 49 of the Czech Constitution.

The judgment of the Constitutional Court no. I. ÚS 573/02, 23. 3. 2004.

The judgment of the Constitutional Court, Pl. ÚS 45/04, 22. 3. 2005.