Co.Co.A. Comparing Constitutional Adjudication. A Summer School on Comparative Interpretation of European Constitutional Jurisprudence

Transcription

1 Co.Co.A. Comparing Constitutional Adjudication A Summer School on Comparative Interpretation of European Constitutional Jurisprudence 4th Edition The "dialogue of judges" and the mutual influence of constitutional concepts in Europe : How the interpretation of national fundamental rights is influenced by the fundamental rights of the ECHR and the EC general principles as well as by a horizontal exchange of ideas of national constitutional courts. Czech Republic The "dialogue of judges" and the mutual influence of constitutional concepts in Europe: How the interpretation of national fundamental rights is influenced by the fundamental rights of the ECHR and the EC general principles as well as by a horizontal exchange of ideas of national constitutional Courts? Examples from the Czech Republic Prepared by: Marian Kokeš 1

2 The "dialogue of judges" and the mutual influence of constitutional concepts in Europe: How the interpretation of national fundamental rights is influenced by the fundamental rights of the ECHR and the EC general principles as well as by a horizontal exchange of ideas of national constitutional Courts? Examples from the Czech Republic Marian Kokeš I. Introduction The European Convention on Human Rights (also the Convention ) came into being on 4 th November Since this year, there has been an enormous development and fifty years later, the European Court for Human Rights (also the Court ) has become the strong point of a system of human rights protection which radiates out through the domestic legal orders of 41 European contracting states with a combined population of some 800 millions. As former president of the Court, Prof. Wildhaber said, the Court sets common legal standards which permeate the legal orders of the Contracting States, standards which influence and shape domestic law and practice in areas such as criminal law, the administration of justice in criminal, civil and administrative matters, family law, property law etc. Over the years and through the case-law of the Court, the Convention has become deeply entrenched in the legal orders of the Contracting States. The Convention and its case-law constitute today a ius commune of the Contracting States to the Convention for the protection of human rights and fundamental freedoms. The Report of the Group of Wise Persons to the Committee of Ministers of the Council of Europe of 15 2

3 November considered that the judicial control mechanism based on the European Court, whose jurisdiction is binding on all the Contracting States, and also on the right of individual application, enshrined in Articles 34 and 35 of the Convention, represents today an essential part of European legal culture in the field of human rights. The Wise Persons report also suggests that the protection mechanism confers on the European Court of Human Rights a constitutional mission to lay down common principles and standards relating to human rights and to determine the minimum level of protection which States must observe 2. So do constitutional Courts today in continental Europe 3. Thus the Court has always placed its relationships with the superior national (constitutional) Courts at the centre of the Convention mechanism. From its earliest judgments the Court recognized the subsidiary character of the Convention system, by which it meant that it was primarily for the national judicial authorities to secure the rights enshrined in the Convention. As it is said in a short introduction to this section - The Court for Human Rights functions as an additional guarantee to the national protection and as a control mechanism on the national solutions. The Court plays another constitutional role. The main aspect of this point of view (which is supported 1 See www pages of The Council of Europe The Committee of Ministers - 5&BackColorLogged=FFAC75 2 See Report of the Group of Wise Persons, 24 3 Finally, fundamental rights are also safeguarded within the European Union. In accordance with the jurisprudence of the European Court of Justice, Article 6 (2) of the Treaty on European Union stipulates that [t]he Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms... and as they result from the constitutional traditions common to member States, as general principles of Community law. The Charter of Fundamental Rights, which was solemnly proclaimed in December 2000 in Nice, still has the status of a legally binding declaration; in the event of the entry into force of the Treaty of Lisbon, that makes a reference to the Charter. 3

4 by the great majority of legal theory in the Contracting States 4 ) is that fundamental rights protection is administered by both national constitutions and the Convention. The Convention is being a formal part of the national constitutional order and the case-law of the Court is being the essential criteria for the interpretation of internal fundamental rights by national constitutional Courts. Thus many national (not only constitutional) Courts refer to judgments of the Court in support of the ratio decidendi of cases. II. The Convention as a part of the Czech legal order The Czech constitutional Court created after the split of the former Czechoslovak federation in 1993 represents a typical example of modern constitutional Courts inspired by the position of the Federal Constitutional Court of the Federal Republic of Germany (Bundesverfassungsgerichtshof). The Constitutional Court has, therefore, huge competences covering the abstract and the concrete constitutional review, the a priori constitutional review of international treaties, the procedure on conflict of the competences, the impeachment of the president etc. And also the procedure on individual constitutional complaints for the direct protection of human rights, such in Spain (recurso de amparo) or in Germany (Verfassungsbeschwerde). But the Czech Constitutional Court had to solve a problem which human rights and freedoms could be claimed by complainants in individual constitutional complaints. Only that human rights and freedoms which are entrenched in the Constitution and in the Czech Charter of Fundamental Rights and Basic Freedoms or also that human rights and freedoms which are guaranteed in the Convention? The Convention was incorporated into the Czech legal order on 13 th March 1993, by virtue of Article 10 of the Czech Constitution as incorporative norm 5. From this point of view all international 4 See Arnold, R. The Emergence of European Constitutional Law. Electronic Journal of Comparative Law, Vol (December 2007), p Art. 10 of the Czech Constitution: «Promulgated treaties, to the ratification of which Parliament ha given its consent and by which the Czech Republic is bound, form a part of the legal order; if a treaty provides something other than that which a statute provides, the treaty shall apply». 4

5 treaties automatically become effective in our domestic law from the very moment they come into force in the international order, and can affect individuals directly (provided of course that their norms are self-executing). The formal publication of the treaty in the Czech Collection of Laws is the only precondition for its integration into our domestic legal order. In the decision No. Pl. US 36/01 of 25 th June 2002 the Czech Constitutional Court claimed that the constitutional basis of a general incorporative norm, and thereby the overcoming of the dualistic concept of the relationship between international and domestic law, the scope of the constitutional order concept cannot be interpreted only with regard to Art. 112 para. 1 of the Czech Constitution, but must be interpreted in view of Art. 1 para. 2 of the Constitution and must include ratified and promulgated international agreements on human rights and fundamental freedoms. In context with aforementioned conclusions of cited decision no law in our legal system can be interpreted in a sense that conflicts with Czech international obligations (Art. 1 para. 2 of the Czech Constitution), so that law in our legal system must be construed and interpreted in conformity with human rights treaties ratified by the Czech Republic and so among others, but especially the European Convention on Human Rights. So individual complainants (a natural or legal person) can in own individual constitutional complaint rely the protection of her/his fundamental rights and basic freedoms that are guaranteed in the Convention because of it is part of the Czech constitutional order. III. The dialogue between the Czech Constitutional Court and the European Court for Human Rights: the Court Case-law as ratio decidendi of cases before the Czech Constitutional Court The relationship between the Court and the Czech Constitutional Court is harmonious because of both pursue the same goal of the protection of human rights and freedoms. I would like to mention a few examples of one of many aspects of dialogue between the Court and the Czech Constitutional Court that the Czech Constitutional 5

6 Court adopts in its daily work the aspect when the Court Case-law functions as ratio decidendi of cases before the Czech Constitutional Court. There exist, of course, many other aspects of dialogue between the Czech Constitutional Court and the Court; for example within the situation the question of execution of the judgments of the Court when the national Court decisions have been found by the Court to be incompatible with the requirements of the Convention (i.e. the legal regulation dealing with the regulation of rents, delays in criminal proceedings or the problematic of restitutions and restitute property). Another aspect arises within the proceedings concerning measures necessary to implement a decision of an international Court (also the European Court for Human Rights) by virtue of Art. 87 para. 1 lit. i). There the Czech Constitutional Court should have decided in a criminal matter in which an international Court found that, as the result of the encroachment of a public authority, a human right or fundamental freedom was infringed in conflict with an international treaty, a petition for rehearing may be submitted against such decision of the Czech Constitutional Court under the conditions set down in the Act on the Constitutional Court. If the Czech Constitutional Court s judgment is in conflict with the international tribunal s decision, the Czech Constitutional Court shall quash that judgment; otherwise it shall reject the petition on the merits. In its new judgment the Czech Constitutional Court shall proceed on the basis of the international tribunal s proposition of law. The problem is if the Czech Constitutional Court in its new judgment Court is bound to opinion in judgment of the international Court, i.e. the European Court for Human Rights or not. My opinion is that the Czech Constitutional Court is not bound to that opinion but in its new judgment the Czech Constitutional Court should follow and reflect on the international Court s judgment. So the Czech Constitutional Court could decide as well as before but with respect to opinions and conclusions which are involved in international Court s judgment. But now I would like to mention a few examples of the main mentioned above aspect of dialogue between the Court and the Czech Constitutional Court the aspect 6

7 when the Court s Case-law functions as ratio decidendi of cases before the Czech Constitutional Court. The Court case-law is very often followed by our Court and is being very often used as ratio decidendi of cases before our Court. Typically right to fair trial (Art. 36 etc of the Czech Charter) has been often interpreted with accordance with Art. 6 of the Convention, especially within criminal procedure - for example the question of admissibility of evidences (decision no. IV. ÚS 335/05 of the 6 th June 2006), custody regulation (decision no. I. ÚS 603/07 of the 7 th June 2007) or non-pecuniary compensation of damages for previous unlawful limitation of personal freedom (decision no. I. ÚS 85/04 of the 13 th August 2006). In this decision the Czech Constitutional Court said that «the claim for compensation is constructed not only in the area of simple law, but also by the Convention on the Protection of Human Rights and Fundamental Freedoms, in Art. 5 par. 5, which is, under Art. 10 of the Czech Constitution, a directly applicable norm in the domestic legal order of the CR, and which must be given priority in application before statutes. Regardless of how the content of the institution of compensation of damage is treated by the domestic legislature, the case law of the general Courts and the constitutional Court, or domestic civil doctrine, in domestic application of the Convention one must start with the concept of compensation of damage as it is treated by the national European constitutional Courts and supreme Courts, whose case law gives rise to the case law of the ECHR. As regards specifically state liability for limiting personal freedom, and thus the relationship of the domestic civil law of offenses and Article 5 par. 5 of the Convention, the situation in individual European states is that the classic dogmatics of civil legal institutions gave way to direct application of Article 5 par. 5 of the Convention, which is interpreted fully autonomously by the national Courts. The Constitutional Court also bases this position on the case law of the European Court of Human Rights which has consistently ruled that the Convention s institutions can have completely autonomous content and a scope not dependent on their legal classification under domestic law». 7

8 Another case of our Court where the Strasbourg Court s case-law was used as ratio decidendi was decision no. IV.ÚS 23/05 #2 on the 17 th July 2007 concerns with human dignity and freedom of speech. Here the Czech Constitutional Court claimed that «the requirement that critics themselves must prove the facts claimed is a European constitutional standard (e.g. the confirmed also by case law of the European Court of Human Rights (e.g. resolution of the Grand Chamber dated 17 December 2004 in the case Pedersen and Baadsgaard v. Denmark). Other general principles applied in case law of European constitutional Courts, as well as in case law of the ECHR, are as follows». It is also possible to point out on decision no. I. US 752/02 issued on 15 th April 2003 in which the Czech Constitutional Court assessed the extradition to the criminal prosecution of Moldovan state citizen to his native country in situation of a conflict between international obligations following from international treaties. It is possible to cite from the reasoning of this decision. The Czech Constitutional Court claimed that «under the case law of the ECHR concerning Article 3 of the Convention, and under Art. 3 of the Convention Against Torture, the Constitutional Court reviewed whether there are substantial grounds to believe that the complainant, if expelled, was in danger of torture (the "substantial grounds test")». And the last example is the case No. II. US 586/06 on 20 th February 2007 where the Czech Constitutional Court had to define and interpret the term family life because of, both Art. 10 par. 2 of the Czech Charter, and Art. 8 of the Convention speak generally about protection of family life, or respect for family life, without, however, defining in legal terms what they mean by the term family life. The Czech Constitutional Court claimed that «the family is a social group of related persons, among whom there are close ties blood, psychosocial, emotional, economical, etc. Thus although at the level of social reality the concept of family is very changeable (as 8

9 stated above, the social reality of the family has undergone successive transformations, and through them the traditional European concept of the family has disintegrated more and more noticeably, and legal regulation of the family and family life is necessarily also subject to these transformations), nevertheless it cannot be overlooked that the basis of family ties is traditionally precisely the biological bond of a blood relationship between family members. Therefore, on the one hand we cannot rule out the fact that legal protection as a family can also be enjoyed by a social group of persons living outside the institution of marriage, or a group of persons not related by blood, among whom there are nonetheless the abovementioned emotional and other ties (persons living together as mates, partners living together with a child that was born to one of the parents from another relationship, etc.). And that scope of the concept of family life also arises from the case law of the European Court of Human Rights. On the other hand, that concept of family and family life also assumes the importance of blood ties between family members. In Kroon and others v. the Netherlands the ECHR gave priority to the biological tie between the father of a child living in a de facto bond with the mother and that child, and denying the paternity of the mother s husband, over the legal situation and the legal construct of the family: respect for family life requires that biological and social reality prevail over a legal presumption [ ]» (Kroon and others v. the Netherlands, par. 40). IV. Conclusion The examples observed above should have illustrated the general tendency in the case-law of the Czech Constitutional Court to reflect and to use the Strasbourg Court s Case-law as ratio decidendi of its own decisions. So in purpose of the topic - the dialogue between judges I could claim that the Czech Constitutional Court s Case-law is in particular cases strongly influenced by the Strasbourg Court s case-law. But in fine it has to be also mentioned that similarly as the Czech Constitutional Court s caselaw is in particular cases inspired and influenced by the Strasbourg Court s Case-law, there is also a distinguishable impact of the German Federal Constitutional Court s (Bundesverfassungsgerichtshof) jurisprudence on the case-law of the Czech 9

10 Constitutional Court as well (for example the decisions on the positions and functions of political parties, the decisions on electoral law, and recently the judgement on the relationship between the domestic constitutional law and the EC law inspired by the Solange II doctrine decision No. Pl. ÚS 50/04). 10