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Czech law, often referred to as thelegal order of the Czech Republic (právní řád České republiky), is thesystem of legal rules in force in theCzech Republic, and in the international community it is a member of. Czechlegal system belongs to the Germanic branch of continental legal culture (civil law).[1] Major areas ofpublic andprivate law are divided into branches, among them civil, criminal, administrative, procedural and labour law, and systematically codified.
Written law is the basis of the legal order, and the most importantsource of law are:legal regulations (acts of parliament, as well asdelegated legislation),international treaties (once they have beenratified by the parliament andpromulgated), and such findings of theConstitutional Court of the Czech Republic, in which a statute or its part has been nullified asunconstitutional. It ismade public by the periodically publishedSbírka zákonů, abbreviatedSb. (“Collection of Law”, “Coll.”), andSbírka mezinárodních smluv, abbreviatedSb. m. s. (“Collection of International Treaties”).
The system of law and justice in the Czech Republic has been in constant development since the1989 regime change. In 1993, theConstitution of the Czech Republic has been enacted, which postulates therule of law, outlines thestructure and principles of democratic government, and declares human rights and rights of the citizen. Since 2004, the membership in the EU means the priority ofEuropean Union law over Czech law in some areas. Recently, a brand new Criminal Code entered into force in 2010, and the Civil Code followed in 2014.
Sources of Czech law are (in this hierarchical order):[1]
Acts of parliament and other legal regulations enter into force on the day they arepromulgated (published) in the officialCollection of Law (Sbírka zákonů, abbreviated asSb. –Coll. – when referring to statutes), although they may take effect at a later date. International treaties are similarly published in theCollection of International Treaties (Sbírka mezinárodních smluv, abbreviatedSb. m. s.).[5]
Czechconstitution is written, and it consists of severalconstitutional acts (one of themthe Constitution of the Czech Republic), together they are known as theconstitutional order of the Czech Republic (ústavní pořádek).
The constitution can be viewed asentrenched, because constitutional statutes are more difficult to adopt, amend, supplement or repeal them than ordinary laws of the country. A special majority (constitutional supermajority) is required of three-fifths of all Deputies and a qualified majority of three-fifths of all Senators present.[1][6] This is to promote continuity and stability of the political system.
Most important constitutional acts are:
The 1992Constitution of the Czech Republic declares sovereignty (self-government) of the people and the values of freedom and democracy. It defines the separation of the three powers in a system ofChecks and balances. It gives the legislative power to the popularly electedCzech Parliament consisting of two chambers, theChamber of Deputies and theSenate. The executive power is divided between thePresident and thePrime Minister. It describes the functioning of thejudiciary, especially theConstitutional Court. Two more institutions are established, theCzech National Bank and theSupreme Audit Office.
TheCharter of Fundamental Rights and Basic Freedoms (Listina základních práv a svobod) is abill of rights document enacted in 1991 by theCzechoslovak Federative Republic. In the Czech Republic it was kept in its entirety and forms a part of the constitutional order (i.e. has the same legal force as the Constitution). It postulates the sanctity of natural human rights and fundamental freedoms as well as citizens' (political) rights, the equality before the law, rights of minorities and so on.
The Constitution has been seriously modified in February 2012, introducing a controversial popular vote of thePresident of the Czech Republic:[6]
On joining theEuropean Union, the Czech Republic committed itself to respect the principle of the supremacy ofEuropean law over Czech law in defined areas.[9]
The most important treaty in this category is theCouncil of Europe’sConvention for the Protection of Human Rights and Fundamental Freedoms.[1]
Major areas of Czech law are codified in a systematic manner.
Most important statutes in the criminal justice field are:
Since 2010, Czechcriminal law is regulated mainly, though not only, by the Criminal Code Act 2009 (trestní zákoník), which codifies substantive criminal law. The comprehensive regulatory statute for criminal procedure is the Criminal Proceedings Code Act 1961 (trestní řád). The two codes are complemented by the Juvenile Criminal Justice Act 2003, which deals with alleged offenders aged between 15 (the threshold of criminal liability as well asage of legal consent) and 17.
Until 2009, the criminal code statute in force dated back to 1961. In spite of numerous amendments made since 1989, it still conformed to the communist ideology, oriented on punishment of perceived enemies of the socialist regime. As a part of an effort to comprehensively reform law and justice, a brand new codification has been written. The Ministry of Justice announced it as an "elaborate piece of work boiled down from the experience and knowledge of foremost expert on criminal law", which can be proudly compared to modern criminal codes of other democratic countries.[11]
The purpose of the 2009 codification was to bring the criminal justice system in line with the rest of Europe. The main change introduced by the code was transition from material to formal conception of criminal offence. Another thing the lawyers drafting the 2009 code had in mind, and expressed it in the area of sentencing tariffs, was a new balance of punishment against rehabilitation effect on the criminal. On one hand we see the sentences for felony (zločin) which carry a sentence of at least 5 years. On the other a newly created category of misdemeanour (přečin) introduces a host of community sentences (alternativní tresty), including community payback (veřejně prospěšné práce) or house arrest (domácí vězení). The code also outlaws doping.[11]
Less serious breaches of law are calledcontraventions (přestupek).[12] These are not normally dealt with by the courts of law, but rather punished either by the police on the spot, or through a procedure in front of a committee at the local or municipal authority, or sometimes other administration body. The result is not a conviction, and so such a punishment will not blemish the culprit's criminal record. Like with other administrative acts, the outcome of this procedure can be challenged through the administrative justice process.[13] A typical example of contraventions in Czech law this are driving offences. (In the common law world, acts falling into this category would be classed assummary offences.)
Since 2012, Czech law also recognizescriminal liability of corporations for offences committed by employees of a corporation, when acting on its behalf, being instructed by the board of directors or other representative of the company, or through lack of their action. In such cases, not only individuals will be prosecuted, but the corporation can be prosecuted as well for the same offence and punished by a host of measures, starting from certain injunctions, through fines a forfeitures, to liquidation of the company.[14][15]
Main statutes regulating this area are:
The Civil Code codifies core areas ofprivate law. It has five parts. The first part is dedicated to a legal status of a person as an individual. The second regulates family law – e.g. the institute of marriage and the rights and obligations of husband and wife, parents and children.[18] Although the Code does includeregistered partnership, it explicitly prohibits adoption to a person in a registered partnership.[19] The rest in concerned mainly with property rights.[18]
The civil code regulation effective since 1 January 2014 is a result of eleven years of work of the recodification committee of theMinistry of Justice. Together with the Commercial Corporations Act and the Private International Law Act it constitutes a complete recodification of private law in the Czech Republic.[18] It brings new and modern regulation of relations governed by civil law, with emphasis on personality rights, free will / more choice when writing a will or unified regulation of obligation laws.[18]
Theoretically, case law is not defined as a source of law in the Czech Republic. Despite that, the decisions of courts, namely supreme courts and the Constitutional Court, have a significant influence over the Czech legal system since 1989.[1] Findings of the Constitutional Court are considered a source of law, and are binding for general courts.[20] If a lower court is to rule against "consistent adjudications" of the Supreme Court on the point of law, it must give detailed reasoning, and this can often be a reason for a successful appeal. This system is largely based on judiciary's own interpretation of the Constitution, arguing that it gives citizens predictability and fairness.[21] The most significant judgements of both courts are published in the official Collection of Laws.[22]
InCzech lands, the process of 'codification' dates back to the era ofenlightened absolutism, when they were a core part of theAustrian Empire. Reforms of government were to a large extent the work of empressMaria Theresa and her sonJoseph II, who participated in creating the firstcivil code of the country in 1787, calledJosephinisches Gesetzbuch. This was a forebear of the comprehensive codification of civil law in 1811, known as theAllgemeines bürgerliches Gesetzbuch (ABGB). ABGB wasreceived in 1918 by Czechoslovakia, among other successor states, but only for Czech lands (Bohemia, Moravia and Austrian Silesia), while Slovakia kept the customary law of Hungary. Albeit updated many times, this Austrian law was kept in Czechoslovakia, along with the legal duality, until 1950, when the "Middle Civil Code" was promulgated, soon to be superseded by the civil code of 1964, which was in force until the "New Civil Code", enacted in 2009, entered into force in 2014.
Following in the tracks of their enlightenment predecessors, theConstitutio criminalis Josephina of 1707 and theConstitutio criminalis Theresiana of 1768, the most important Czechoslovakiancriminal codes were enacted in 1950, 1961 and 2009.
The history of Czechoslovak constitutionality starts with the formation of independentCzechoslovakia out of the ruins ofAustria-Hungary. In 1918, theInterim Constitution of Czechoslovakia has been enacted hastily, establishing the republic with its president and temporary parliament. TheCzechoslovak Constitution of 1920 succeeded it, inspired by western democratic constitutions, and, controversially, postulating theCzechoslovak nation. This lasted over theFirst Republic and the second world war. In 1948, the so-calledNinth-of-May Constitution was enacted after thecommunist coup – putiatively some democratic institutions and nominal human rights, and even notions of, for example an "independent" judiciary though the political reality of the country departed from it radically. The1960 Constitution of Czechoslovakia, influenced by soviet constitutions, is often dubbed the "Socialist Constitution". It changed the name of the country toCzechoslovakSocialist Republic and defined socialist, rather than democratic, character of the state, and introduced the leading role of theCommunist Party of Czechoslovakia. The 1960 constitution remained in force until 1992, although in 1968 it was substantially modified by theConstitutional Act on the Czechoslovak Federation – this transformed the unitary state into a federation of theCzech Socialist Republic and theSlovak Socialist Republic. Further radical modifications were enacted after theregime change of 1989, but they turned out to be short-lived, as in 1992 theConstitution of the Czech Republic has been promulgated after thedivision of Czechoslovakia, and entered into force in 1993.
