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STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
Supreme Court (naturally) made international law standards sound quite clear and
unambiguous; yet, the State immunity regime is far from uniform. These questions
are thus truly open in the sense that more than one legal solution is often available,
and choices will have to be made.
Overall, the Supreme Court’s decisions in the three leading cases are very broadly
worded. As will become clear, they consequently require a narrow reading within the
scope of the facts of each case; otherwise, they would in many respects completely
depart from the international law standard and could potentially engage the State
responsibility of the Czech Republic. Much refinement remains for further judicial
development.
In light of the imminent ratification of the UN Convention, the European
Court of Human Rights’ (the “ECtHR”) practice,
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and the position of the Czech
government and legislature,
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Czech courts might increasingly take into account
the provisions of the UN Convention in their decision-making on State immunity.
However, as the UN Convention will (still) not be binding law, Czech courts will
be free to continue developing their independent jurisprudence and to develop the
concept of State immunity as domestic courts have always done.
The following section is intended to provide several examples of the questions
left open by the three leading cases, in order to suggest the types of issues that the
Czech courts will need to address in the future.
3.4.1 Employment Matters of Persons Involved in the Exercise
of Public Authority
In the Polish Embassy Driver Case, the Czech Supreme Court stated that Poland did
not enjoy immunity from jurisdiction in Czech courts with respect to the employment
termination dispute, because
“in a case where a State acts not as a sovereign bearer
of public authority, but as a juridical person in matters deriving from individual
labor relationships characterized by the legal equality of their participants, the rules of
of Czech constitutional law, only published treaties ratified by the Parliament and binding on the
Czech Republic form part of Czech law. However, it would have been quite in order, and arguably
even appropriate, for the courts to use the UN Convention as a persuasive authority, given that the
Czech Republic and its organs are bound not to defeat the object and purpose of the UN Convention
by virtue of Article 18 of the Vienna Convention on the Law of Treaties from the moment of its
signature. Additionally, Czech courts are required, under Article 1(2) of the Constitution, to interpret
domestic law in accordance with the international law obligations of the Czech Republic (
See
Judgment
of the Constitutional Court of the Czech Republic dated 19 November 2008, case No. Pl. ÚS 14/07,
para. 34).
See also
Stoll P-T, State Immunity, para. 15 and 23.
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The European Court of Human Rights has been holding signatories to the UN Convention to its
standards even if they did not ratify it, holding that the UN Convention expresses the state of custom,
and the fact of signing confirms that the state in question did not object to the formation of that
customary rule (and the application of the persistent objector doctrine is thus excluded).
See
, for
example
Case of Sabeh El Leil v France
European Court of Human Rights, Application No. 34869/05,
Grand Chamber Judgment of 29 June 2011, para. 58.
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See
Section 3.6 below.