Conflicts between Fundamental Rights in the Jurisprudence of the Constitutional Court of the Czech Republic

Abstract

It is generally assumed that the Czech Constitutional Court is to a significant degree influenced by the jurisprudence of the German Federal Constitutional Court. At first sight, conflicts between fundamental rights do not seem to be an exception. Indeed, the Czech Constitutional Court borrowed a version of practical concordance and a three-step test of proportionality. However, this paper reveals that a weighing formula of the Czech Constitutional Court departs from the one applied by its German counterpart. Furthermore, the paper argues that different criteria apply in abstract and concrete judicial review on the one hand, and individual constitutional complaint procedure on the other. More specifically, it points to two major differences between the above mentioned types of procedure: (1) reversal order of the two components (i.e. balancing and a version of practical concordance) of the proportionality test in the strict sense; and (2) different content of the balancing component.

Part 1 introduces the basic framework of the Czech Constitutional Court and fundamental rights protection in the Czech Republic. It briefly describes the jurisdiction of the Czech Constitutional Court, its procedure and the crucial provisions of the Czech Charter of Fundamental Rights and Basic Freedoms. Part 2 focuses on the proportionality test applied by the Czech Constitutional Court and examines this test step-by-step with the emphasis on conflicts between fundamental rights. Part 3 discusses selected examples of collision of fundamental rights in the case law of the Czech Constitutional Court, both in abstract constitutional review and individual constitutional complaint procedure. Part 4 attempts to modify the “Czech balancing formula” and develops a claim that the different tests for abstract review and individual complaints, as applied by the Czech Constitutional Court, should not be sustained.

Keywords: fundamental rights, proportionality, balancing, conflicts of rights, practical concordance, abstract review of constitutionality, concrete review of constitutionality, constitutional complaints, constitutional law, Czech Constitutional Court, Czech Republic