EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

CHAPTER XIII. THE CZECH GOVERNMENT BEFORE THE COURT 1. LEGAL STATUS OF THE CONVENTION WITHIN THE CZECH LEGAL ORDER The Czech Republic has been bound by the European Convention on Human Rights (“the Convention”) since 18 March 1992, when it had been ratified by its legal predecessor, the Czech and Slovak Federal Republic ( Kuchař and Štis v. the Czech Republic (dec.), no. 37527/97, on 23 May 2000). The Convention, together with its Protocols, is an international treaty within the meaning of Article 10 of the Constitution. As such, it forms an integral part of the Czech legal order, which is binding for all public authorities. They are obliged to abide by the provisions of the Convention in the exercise of powers conferred on them by law and to enforce their observance by other bodies and persons. According to the criterion of legal force, the status of the Convention in the hierarchy of legal norms corresponds to ordinary acts, but with the difference that it enjoys preference in application. However, the Constitutional Court upgraded international treaties on human rights to the level of constitutional laws (judgment of 25 June 2002, file no. Pl. ÚS 36/01). Therefore, through the prism of the Constitutional Court, the Convention is a part of the Czech constitutional order with all implications. If a general court concludes that the law to be applied in the case conflicts with the provisions of the Convention, it cannot resolve the issue itself, and is required by Article 95 (2) of the Constitution to submit it for determination to the Constitutional Court. The incompatibility of normative and individual legal acts with the Convention is a justifiable ground for the Constitutional Court to annul them. In the case of legislation, however, the constitutionally compliant interpretation takes precedence over the need to repeal them. Thus, where two or more arguable interpretations of a legal norm exist, in which one is in conformity with the Convention while the others oppose it, priority shall be given to the interpretation respecting the content of the Convention. The interest that all normative acts having lower legal force shall be in harmony with the Convention implies its importance in the legislative drafting. In case of legislative proposals prepared by ministries and other executive bodies are concerned (typically acts, regulations of the Government or ministerial decrees), the requirement to ensure a preliminary check of their compliance with the Convention is expressed in Section 4 (4) of the Rules of the Government’s Legislative Drafting. They stipulate a sponsor’s obligation to assess the compatibility of a white paper with the Convention and the relevant case law of the European Court of Human Rights (“the Court”). In the explanatory report, the legislative proposal must then contain a detailed explanation and justification of whether the proposed solution meets these obligations.

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EUROPEAN COURT OF HUMAN RIGHTS IN ACTION