CYIL 2014

429

STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS

Czechoslovakia and later the Czech Republic have never adopted a comprehensive

statute regulating State immunity.

In line with the continental tradition, the law

has contained a single statutory provision providing for the immunity of foreign

States in accordance with international law, leaving it for the courts to determine the

scope of that immunity.

Until the dissolution of Czechoslovakia in 1992, Czechoslovak courts were

not constitutionally authorized to apply international law directly unless a statutory

provision specifically stated so.

Even after the new Constitution was adopted in 1993,

and the constitutional provision regulating the relationship between international and

domestic Czech law was further amended in 2001, Czech courts are still unable to

directly apply the totality of international law. Pursuant to Article 10 of the Czech

Constitution, only international treaties binding on the Czech Republic, ratified by

the Parliament and published in the Collection of Laws constitute a part of Czech

law, and may be applied by courts directly and take precedence over domestic

statutes.

Other sources of international law, including customary international law,

may be directly applied only on the basis of a statutory

renvoi

; otherwise, they may

merely be taken into consideration as an interpretative tool under the rule of statutory

construction in conformity with international law.

is used or designated for such exercise. (2) Czech courts shall have jurisdiction over other conduct, acts,

and circumstances to the extent in which courts of another state have jurisdiction over claims against a

foreign state pursuant to general international law or an international treaty. (3)

Persons, international

organizations, and institutions enjoying immunity in the Czech Republic pursuant to international treaties,

general international law or Czech law shall not be subject to the jurisdiction of Czech courts to the extent

that such immunity applies. (4) Sections 1 and 3 apply also to … execution of decisions…”

In contrast, the UN and European Conventions, and main common law jurisdictions have adopted

comprehensive statutes based on a general rule of immunity to which an exhaustive list of exceptions

is provided, such as the commercial transactions, employment contracts, and tort exceptions (for

example, United Kingdom, State Immunity Act, 1987; United States, Foreign Sovereign Immunities

Act, 1976; Canada, State Immunity Act, 1985; Australia, Foreign States Immunities Act, 1985).

See

Judgment of the Supreme Court of the Czech Republic dated 14 December 2011, case No. 22

Cdo 4048/2009. Such provision, for example, was § 2 of Act No. 97/1963 Coll., on International

Private and Procedural Law, pursuant to which an international treaty binding on Czechoslovakia

was to take precedence over the provisions of the statute. As such, for example, the framework set

up through Dohoda mezi vládou Československé socialistické republiky a vládou Svazu sovětských

socialistických republik o odchodu sovětských vojsk z území Československé socialistické republiky

[Agreement between the Government of the Czechoslovak Socialist Republic and Union of the Soviet

Socialist Republic on Departure of Soviet Army from the Territory of Czechoslovak Socialist Republic]

of 28 February 1990 (published in the Czechoslovak Collection of Laws under No. 71/1990 Coll.)

took precedence over the general immunity regime and allowed claims for damages caused by the Soviet

army within the territory of Czechoslovakia. Judgment of the Czechoslovak Supreme Court dated 30

April 1991, case No. 1 Cz 3/91.

Pursuant to Article 10 of the Constitution of the Czech Republic

in fine

“if a treaty provides something

other than that which a statute provides, the treaty shall apply.”

Accordingly, for example, the Vienna

Convention on Diplomatic Relations, which is a part of Czech law, takes precedence over any domestic

statute, including any statutory reference to international custom.

This requirement on the organs of the Czech Republic, including courts, to interpret domestic

law in conformity with international law is generally considered to derive from Article 1(2) of the