Introduction

1. The Constitutional Court of the Czech and Slovak Federal Republic (CSFR) was in operation from February 1992 until 31 December 1992 when the CSFR dissolved. The Constitution of the Czech Republic, adopted on 16 December 1992, made provision in Chapter 4 for the establishment of the Constitutional Court of the Czech Republic (hereinafter "the Court"). The statute regulating its operations in detail (Act no. 182/1993 Sb., on the Constitutional Court) was adopted on 16 June 1993, after which in July 1993 the first 12 members were appointed and the Court began operations. By January 1994 three other members had been appointed, making up the total membership of 15 provided for in the Constitution. Of the current Justices, four were formerly members of Parliament, four were former Justices of the CSFR Constitutional Court, four are professors, five are professional judges, and several had been lawyers in private practice.
2. The Court does not form part of the system of ordinary courts.

l. Basic texts
Chapter Four, Articles 83-89 of the Constitution. Act no. 182/1993 Sb., on the Constitutional Court.

II. Composition and organisation

1. Composition
The Constitution provides that the Court shall consist of 15 Justices, and there are currently 15 sifting Justices. All members are appointed by the President with the consent of the Senate (the Senate was not yet established when the first 15 Justices were appointed, so the Assembly of Deputies approved them in its stead). The Chairperson of the Court and two Vice-Chairpersons are appointed by the President (consent of the Senate is not required). The Justices are appointed for a 10-year term of office, and there is no restriction on reappointment.
The minimum qualifications for appointment as a Justice of the Court are that the person have a character beyond reproach, be eligible for election to the Senate (which means that they must have reached the age of 40 and be eligible to vote), have a university legal education, and have been active for at least ten years in the legal profession. There is no limitation on a person's eligibility to be appointed merely because she was a member of the government or of Parliament prior to her nomination. However, while holding office, a Justice may not be a member of a political party. In addition, a Justice is restricted from holding any other compensated position or engaging in any other profit-making activity with the exception of managing her own assets and engaging in scholarly, teaching, literary, or artistic activities.
Justices assume their office upon taking the following oath of office administered by the President: "I pledge upon my honour and conscience that I will protect the inviolability of natural human rights and the rights of citizens, adhere to constitutional acts, and make decisions according to my best convictions, independently and impartially."
Justices enjoy a general immunity from criminal prosecution: they may not be prosecuted for misdemeanours and may be prosecuted for felonies only in the Senate consents to the prosecution (failing which, they are for ever exempt from prosecution for the act at issue). They may be arrested only if caught in the act of committing a felony (flagrante delicto) or immediately afterwards. A Justice has a privilege to refuse to testify concerning matters about which he learned in connection with his judicial duties, and otherwise has a positive obligation to maintain confidentiality about such matters.
A Justice may be deprived of his seat only in a very limited number of cases: loss of eligibility for the Senate, final conviction for an intentional criminal offence, or a decision by the Court's Plenum to terminate his office due to a disciplinary infraction. The definition of a disciplinary infraction is any conduct which "lowers the esteem and dignity of the office or tends to undermine confidence in the independent and impartial decision-making of the Court, as well as any other culpable elation of the duties of a Justice" or any conduct qualifying as a misdemeanour.
The Court administration is directed by the Chairperson. Each Justice has her own staff made up of a legal assistant and a secretary. More detailed rules are contained in Act no. 182/1993 Sb.

2. Procedure
The Court acts in its Plenum or in three-Justice chambers (of which there are four). Only the Plenum may decide to annul an Act of Parliament or another generally applicable enactment, or make decisions concerning the impeachment or incapacity of the President or the dissolution of a political party. All other matters are heard by chambers: constitutional complaints by persons or municipalities, electoral or eligibility disputes concerning members of Parliament, and conflicts of competence between central State authorities and local autonomous bodies.
Oral hearings are not mandatory if parties agree to dispense with them. For the Plenum to make a decision, at least 10 Justices must be present. A super-majority of 9 Justices is required to vote in favour of a decision to annul an Act of Parliament, as well as for decisions concerning the impeachment or incapacity of the President.

III. Powers

The Court has jurisdiction over the following matters:

 1. Abstract constitutional review of enacted norms (ex post facto or repressive control):
    a.  Petitions lodged as a prerogative of office (ex officio):
      i. Acts of Parliament, if proposed by the President or a group of either 41 deputies or 17 senators;
      ii. other enactments, if proposed by the govern-ment or a group of either 25 deputies or 10 senators.
    b.  Petitions lodged incidental to a dispute:
Within the context of a specific dispute, an ordinary court hearing a case, a panel of the Court when deciding a constitutional complaint, or a person in conjunction with his submission of a constitutional complaint, may submit a petition to annul an Act of Parliament or another enactment.

2. Concrete constitutional review of decisions and official Acts - Constitutional complaints:
    a. a person submitting a complaint must claim that their constitutionally protected rights have been violated and that they have exhausted all other legal remedies. Citizens do not have a general right to complain of unconstitutionality (actio popularis). A petition to annul an Act of Parliament or other enactment may be attached only if it formed the basis of the violation;
    b.  a municipality or self-governing region must claim that the State has encroached upon its right to self-government;
    c. a political party or movement must claim that it was dissolved by the government in violation of the Constitution or laws.

3. Cases concerning impeachment of the President or his incapacity to hold office.
4. Disputes concerning a member of Parliament's election or eligibility for office.
5. Jurisdictional disputes between State bodies and self-governing regions.
6. Decisions on how to implement decisions of interna-tional tribunals.
The Court has no preventive norm control and has no power to give advisory opinions.

IV. Nature and effect of judgments

    1. If the Court finds a legal provision to be unconstitu-tional, it annuls it in whole or in part. Generally, the provision shall be annulled on the day the judgment is published in the Collection of Laws, unless the Court decides otherwise (delays it, for example, to allow Parliament time to adopt substitute legislation). Judgments concerning the impeachment or incapacity of the President or a member of Parliament's election or eligibility for office are enforceable when announced by the Court. Other judgments are enforceable when an official copy of it has been delivered to the parties.

    2. Article 89 of the Constitution states that all judgments of the Court are binding on all governmental bodies and persons (erga omnes effect). It is still unclear whether that holds true as well for constitutional complaints, or whether they have merely inter partes effects. If the judgment annulled a provision on the basis of which a person was criminally convicted, the case may be reopened. Otherwise, legal decisions made or legal relations created on the basis of an unconstitutional statute remain unaffected if they arose prior to the statute being declared unconstitutional.

    3. Judgments annulling an Act of Parliament or other enactment, or concerning the impeachment or incapacity of the President, must be published in the Collection of Laws (Sbirka zakonu Ceske republiky). Other judgments containing legal principles of general significance may be published in the Collection of Laws. The Court publishes its own collection at least once annually (Sbirka nalezu a usneseni Ustavniho soudu). This collection contains all of its judgments (including concurring and dissenting opinions).

Statistical data: 1 May 1996 - 31 August 1996

• Decisions by the Plenary Court: 6
• Decisions by chambers: 26
• Number of other decisions by the Plenary Court: 9
• Number of other decisions by chambers: 356
• Number of other procedural orders: -
• Total number of decisions: 408

Important decisions

Identification: CZE-96-2-004
a) Czech Republic / b) Constitutional Court / c) Second Chamber / d) 05.05.1996 / e) II.US 98/95 / f) Violation of the right to counsel by the refusal to permit counsel to be present while his client is making a statement to the police / g) / h).

Keywords of the systematic thesaurus:
Fundamental Rights - Civil and political rights -Procedural safeguards - Fair trial - Rights of the defence.

Keywords of the alphabetical index: Criminal proceedings, safeguards / Right to counsel.

Headnotes:
By not permitting the complainant's authorised attorney to be present while the complainant was making a statement required by § 12 of the Czech National Council Act no. 283/1991 Sb., on the Police of the Czech Republic, the police violated the complainant's rights under Article 37.2 of the Charter of Fundamental Rights and Basic Freedoms, which guarantees each person in proceedings before courts or other State or public administrative bodies the right to the assistance of counsel from the very beginning of the proceedings.

Summary:
The complainant brought an action against the conduct of a policeman who had called him in to make a statement pursuant to § 12 of Act no. 283/1991 Sb.,on the Police of the Czech Republic, but who did not allow his attorney to be present. The reason given for this omission was that the Act on the Police of the Czech Republic did not provide for the right of the assistance of counsel, in the circumstances in question, since the making of a statement is only a preliminary act and, under the Code of Criminal Procedure, a person's right to the assistance of counsel does not arise until the actual criminal proceeding.

The Constitutional Court came to the conclusion that the lack of appropriate legal provisions in the Act on the Police in no way alters a person's fundamental right under Article 37.2 of the Charter of Fundamental Rights and Basic Freedoms, which provides that in proceedings before a court or other State or public administrative body, any person shall be entitled, from the very beginning of the proceeding, to the assistance of counsel. In the case under consideration, the police violated this fundamental right. Therefore, the Constitutional Court ordered them to cease their unconstitutional conduct.

Languages: Czech.

Identification: CZE-96-2-005
a) Czech Republic / b) Constitutional Court / c) First Chamber / d) 28.05.1996 / e) I.US 127/96 / f) Legal definition of a coalition in an election / g) / h).

Keywords of the systematic thesaurus:
Constitutional Justice - Types of claim - Claim by a private body or individual - Political parties.
Fundamental Rights - Civil and political rights -Electoral rights - Right to be elected.

Keywords of the alphabetical index: Electoral coalition, definition / Elections / Electoral subject, definition.

Headnotes:
Act no. 247/1995 Sb., on Elections to the Parliament of the Czech Republic, does not set forth conditions of public law for the creation of coalitions, nor for their activities, and does not grant to any State body the authority to decide the question whether a political party or a movement or a grouping of them should be considered to be a coalition taking part in the elections. Consequently, no State or other public body is authorised to take decisions interfering with the pre-election activities of political bodies, and it manifestly was not the intention of the legislature to intervene by public authority into the creation of electoral coalitions.
It may be inferred from the present state of the law, that it is only political bodies themselves who may decide whether they want to participate in an election as an independent (electoral) subject or as part of an (electoral) coalition. When there is a lack of other legal rules, the only relevant issue is the means by which the subject registered its list of candidates. This follows also from the fact that, in addition to political parties, the cited law also lists coalitions as among those persons authorised to submit lists of candidates for elections without any further specification or characteristics. The creation of an (electoral) coalition is subject to the agreement of the parties, which public law in no way regulates or forbids. The cited law does not attach to such actions any legal consequences for the parties presenting candidates, nor does it designate that only members of such a party may be registered in the list of candidates. Under the present legal rules, the creation of a coalition is a free act, that is, it is an expression of intention on the part of two or more political parties or movements to create a coalition, which is not subject to any further approval or review by State bodies.

Summary:
The complainant, the political party Free Democrats -National and Social Liberal Party (SD-LSNS), submitted a constitutional complaint against the decision of the Central Electoral Commission (CEC) to the effect that a registered list of candidates of SD-LSNS in the elections to the Assembly of Deputies of the Czech Parliament, held on 1 May and 1 June 1996, was in fact a list of candidates of a coalition between SD-LSNS and SPR (Party of Entrepreneurs, Farmers and Tradesmen). It objected that if this decision, which the CEC was authorised to issue, remained in effect, then the SD-LSNS would be disadvantaged in relation to other political parties, because, instead of needing to receive 5% of all votes cast, which is what individual parties need in order to secure representatives in the Assembly of Deputies, as a two-member coalition it would need at least 7%. This decision accordingly diminished their chances for success in the elections.
The Constitutional Court agreed with the complainant because no law, not even the Electoral Act, no. 247/1995 Sb., either defines a coalition or authorises anybody, even the CEC, to decide with binding force whether a political body is a coalition or not. The term coalition is well known from political practice, deriving mostly from the co-operation between the parties of a governing coalition, which has already for a long time had a settled meaning. In other situations, the term coalition can designate various types of relationships, from mere co-operation between any parties, closer and freer liaisons, up to a level of co-operation that precedes the merging of parties. In the case that legal rules are lacking, it is necessary to be guided by the rule that only a political party itself may freely decide if it will take part in the elections as a party or as a coalition, and the political party SD-LSNS has registered as an independent electoral subject.
For these reasons, the Constitutional Court ordered the Central Electoral Commission to annul its decision, to return the SD-LSNS its status in the elections as an independent subject, and to inform the voters thereof by means of the press.

Languages: Czech.

Identification: CZE-96-2-006
a) Czech Republic / b) Constitutional Court / c) Plenary Session / d) 10.07.1996 / e) PLUS 35/95 / f) Executive bodies may not issue regulations implementing a constitutional provision where the Constitution itself requires a statute / g) / h).

Keywords of the systematic thesaurus:
Constitutional Justice - The subject of review – Rules issued by the executive.
General Principles - Separation of powers.
Institutions - Executive bodies - Application of laws - Delegated rule-making powers.
Fundamental Rights - Economic, social and cultural rights - Right to social security.
Fundamental Rights - Economic, social and cultural rights - Right to health.

Keywords of the alphabetical index:
Fundamental rights, implementation by statute / Health care, cost-free / Health insurance, cost-free / Medical assistance.

Headnotes:
The content and extent of the conditions for and manner in which citizens may assert their right to cost-free health care can only be defined by statute. The legislature cannot avoid this duty by giving full power to an executive body to issue legal regulations having a force lesser than a statute.
The right of citizens to cost-free health insurance and medical assistance is bound to constitutional requirements as well as to the system of public health insurance. The system of public health insurance, like any other insurance system, is limited by the volume of financial resources that it receives as the result of mandatory payments made into the universal health insurance scheme under Czech National Council Act no. 592/1992 Sb., as amended.

Summary:
A group of Deputies submitted a proposal seeking the abrogation of the provisions of the Act on National Health Care and on Universal Health Insurance which empowered the government and the Ministry of Health to issue implementing regulations. They also submitted a proposal seeking the abrogation of such implementing regulations as had already been passed. The petitioners objected that limits could be placed on the constitutional right to cost-free medical health care based on public health insurance exclusively by statute.
The Constitutional Court found the petitioners' view to be correct. According to Article 31 of the Charter of Fundamental Rights and Freedoms, citizens have, on the basis of public health insurance, the right to cost free health care and to obtain medical assistance under the conditions set by statute. The legislature's obligation to define the content and extent of the conditions for and the manner in which cost-free health care will be provided may not be discharged by authorising an executive body, i.e., the government or a Ministry, to enact legal regulations having a force lesser than a statute for defining the limits to these fundamental rights and freedoms. Under Article 78 of the Constitution of the Czech Republic, the government is empowered to issue regulations for the implementation of a statute within the limits thereof, and under Article 79.3, a Ministry may enact legal regulations, on the basis of and within the limits of a statute, only when so authorised by that statute. However, executive bodies may not assert this power in the regulation of matters which, under the Charter of Fundamental Rights and Basic Freedoms, may be regulated only by statute.
For the above-stated reasons, the Constitutional Court annulled the contested legal provisions with effect from I April 1997, so that a new statute in conformity with the Constitution could be adopted by that time.

Languages: Gzech.

Identification: CZE-96-2-007
a) Czech Republic / b) Constitutional Court / c) Third Chamber/d) 11.07.1996 /e) 111. US 127/96 /f) A court's dutу to amend the designation of the defendant / g) / h)

Keywords of the systematic thesaurus:
Fundamental Rights - Civil and political rights -Proocedural safeguards - Fair trial - Rights of the defence.

Keywords of the alphabetical index: Right to correct formal errors in court pleadings.

Headnotes:
If the pleadings of a party to litigation should contain an obvious error, the correction of which would cure the failure to meet procedural requirements, and if it would not require any procedural acts on the part of the court (such as the taking of evidence) to observe this obvious error, the parties to the proceeding must be given the opportunity to correct the error. To hold otherwise would be to exalt formalism, and the result would be a sophisticated justification for a manifest injustice which would, in consequence, touch upon the meaning of § 1 of the Code of Criminal Procedure, Article 90 of the Constitution, and Article 36.1 of the Charter of Fundamen-tal Rights and Basic Freedoms.

Summary:
The case under consideration was concerned with a restitution claim, the return of property pursuant to Act no. 87/1991 Sb., on Extra-Judicial Rehabilitation. The action was originally brought against the Municipal Office of the City of R. and, after leave was given to change the naming of the defendant to the City of R., the district court dismissed the petitioners' action. On appeal the regional court modified the judgment of the lower court in that it granted the action demanding the return of the property. The defendant appealed to the Supreme Court by means of an extraordinary remedy. However, the Supreme Court did not deal with the merits of the case. Rather it set aside the regional court decision on procedural grounds and dismissed the proceeding, stating as its reason that the Municipal Office of R., the defendant in the original complaint, as a State administrative body had no independent capacity to be a party to litigation. It stated that this is an incurable defect in meeting the procedural requirements, so that it could not be corrected by changing the name of the defendant to the City of R., which is a self-governing entity that possesses legal personality.
A constitutional complaint was filed against the Supreme Court ruling.
The Constitutional Court came to the conclusion that the complainants obviously corrected the original defect in the pleadings when, instead of a State administrative body possessing no capacity to be sued and which is not in possession of the property and hence incapable of returning it to the complainants, they filed, in the course of the litigation, a complaint against the City of R. as a local self-governing unit, which does have capacity to be sued. By deciding otherwise, the Supreme Court violated the complainant's fundamental right to a fair procedure before a court in accordance with the Constitution of the Czech Republic and the Charter of Fundamental Rights and Basic Freedoms. The Supreme Court's ruling was, therefore, quashed.

Languages: Gzech.