463 / 532
447
STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
Constitutional Court has developed and consistently applied a doctrine of a normative
hierarchy and precedence of human rights over any other international law norms.
119
The Czech Constitutional Court specifically held, within the context of a treaty case,
that if two international law obligations of the Czech Republic conflict, priority
must be given to the human rights treaty. According to the Constitutional Court’s
reasoning, the priority of the human rights obligation in situations of normative
conflict follows both from the substantive content of the human rights treaties and
from Article 1(1) of the Constitution of the Czech Republic, which defines the
Czech Republic as a state based on the rule of law:
120
“The respect and protection of
fundamental rights are the defining elements of this substantive conceptualization of a
state based on the rule of law. Therefore, if a treaty obligation protecting a fundamental
right and a treaty obligation endangering that right exist in parallel, the former must
prevail.”
121
Importantly, this normative precedence does not involve only
jus cogens
norms but all human rights obligations of the Czech Republic.
This doctrine has its origin in a domestic constitutional law argument and
relates to the point that human rights treaties form a part of the so-called “material
core” of the Czech constitutional order (specifically covered by Article 9(2) of the
Constitution of the Czech Republic);
122
and the attained level of human rights
protection cannot be diminished for any reason.
123
However, the doctrine has had a
widespread effect on the general interpretation and application of international law
obligations by Czech courts, putting a vital emphasis on the inherent superior value of
human rights norms. This superiority of the material core of the Czech constitutional
order was asserted even with respect to European law. The Czech Constitutional
Court specifically held that in the event of a clear conflict between the domestic
Constitution (and especially its material core) and European law that cannot be
healed by a reasonable interpretation, the constitutional order of the Czech Republic,
especially its material core (including human rights), must take precedence.
124
119
Judgment of the Constitutional Court of the Czech Republic dated 15 April 2003, case No. I ÚS
752/02; Judgment of the Constitutional Court of the Czech Republic dated 3 January 2007, case No.
III. ÚS 543/06; Opinion of the Plenary of the Constitutional Court of the Czech Republic dated 13
August 2013, case No. Pl ÚS-st 37/13, para. 17; Judgment of the Constitutional Court of the Czech
Republic dated 10 September 20013, case No. III. ÚS 665/11.
See
also Klíma K et al.,
Komentář
k Ústavě a Listině,
122-123.
120
Constitution of the Czech Republic, Act No. 1/1993 Coll as amended, Article 1(1):
“The Czech
Republic is a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the
rights and freedoms of man and citizen.”
121
Judgment of the Constitutional Court of the Czech Republic dated 15 April 2003, case No. I ÚS
752/02; Judgment of the Constitutional Court of the Czech Republic dated 3 January 2007, case
No. III. ÚS 543/06; Opinion of the Plenary of the Constitutional Court of the Czech Republic dated
13 August 2013, case No. Pl ÚS-st 37/13, para. 17.
122
Pursuant to Article 9(2) of the Constitution of the Czech Republic:
“Any changes to the essential
elements of a democratic state governed by the rule of law are impermissible.”
123
Judgment of the Constitutional Court of the Czech Republic dated 25 June 2002, case No. Pl. ÚS
36/01, Section VII.
124
Judgment of the Constitutional Court of the Czech Republic dated 26 November 2008, case No. Pl.