CYIL 2014

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.

447