2016 Global Review of Constitutional Law

multimillionaire. And he owns several of
the most prominent Czech media and one
of the major business corporations. In 2016,
Parliament passed a law on conflicts of interest
(labeled as “Lex Babiš”) which prohibits
active politicians from owning media
and limits their ability to engage in business
activities (for example, their companies are
not eligible for state subsidies). It will be an
often-raised question even in 2017 whether
such a regulation conforms to the constitution
or not.
From all the possible options, we chose
one particular 2016 controversy for further
analysis – the idea to constitutionally entrench
the right to possess and bear arms to
protect the country. In accordance with the
draft bill, there should be a new provision
in the Constitutional Act on State’s Security
reading: The Citizens of the Czech Republic
have a right to obtain, possess and
bear arms and ammunition in order to protect
lives, health, and property, and to take
part in securing domestic order, security
and protection of territorial integrity, sovereignty
and democratic foundations of the
Czech Republic. Conditions and details are
set by a statute.
This draft bill left many startled. It is not easy
to grasp what led the Ministry of Interior to
come up with such a piece of legislation.
Why amend our constitutional order with
a new constitutional right resembling the
2nd Amendment to the U.S. Constitution?
And why have it in the Constitutional Act
on State’s Security? There are no other
constitutional rights in this act whatsoever.
Ministry of Interior noted that in the wake
of terrorist attacks in Europe, it is much
more effective for the ordinary citizens who
have a gun permit to act and protect themselves
and fellow citizens against terror.
The Ministry observed that the possibility
of finishing a terrorist attack is much lower
if there is an active and timely defense, not
necessarily carried out by security forces.
The problem with this draft bill is that it
does not seem to be legally necessary. The
sub-constitutional law already allows what
the Ministry of Interior would like the Parliament
to legislate. Classic criminal law
concepts of self-defense and emergency
provide sufficient regulation for the cases
the Ministry of Interior intends to address.
Why adopt such a constitutional amendment
in a pretty peaceful “heart of Europe,”
then? Some argue that it might be a reaction
to the EU’s intentions to limit gun rights. Or
that it might be an easy attempt by the Interior
Minister to gain political points. One
way or the other, we do not think that this
draft bill is consistent with European constitutional
traditions. There is no “pressing
social need” to introduce such a constitutionally
protected right. It is already, in substance,
sufficiently set in sub-constitutional
law. Nevertheless, the draft bill remains in
the legislative process. And despite heavy
criticism, the Czech Republic may become
the first EU country to constitutionally recognize
its own version of the “right to bear
arms.”
IV. MAJOR CASES
In this part of the report, we briefly discuss
four major cases of the Court. We chose
these four because, in our opinion, they
are the most relevant from the comparative
point of view. Two of them are plenary
judgments. In these two, the Court reviewed
the constitutionality of an enacted
law. The remaining two are judgments
on individual constitutional complaints.
Discussion of the selected cases follows in
their chronological order.
LGBTQ Rights (judgment no. Pl. ÚS 7/15
of 14. 6. 2016)
In this judgment, 4 the Court granted the motion
of the Prague Municipal Court for the
annulment of Section 13 (2) of the Act on
Registered Partnership (“the Act”). This provision
precluded the adoption of a child to
persons living in a registered partnership.
The crux of the case was that the Civil Code
allows adoption by a single person. But the
Act explicitly precluded that such a person
lives in a registered partnership. The law
took the possibility to adopt a child away
for those who entered registered partnership.
The Court came to the conclusion that the
law violated the right to human dignity. It
held in the judgment that the Act excluded
a specific group of people, who merely enter
registered partnership, from the enjoyment
of a right. And it made them de facto “second
class citizens.” In the Court’s view, the law
implied registered partners’ inferiority. And
apparently, even an inability to take care of
children properly.
As we wrote elsewhere, 5 we endorse the verdict.
But the Court’s reasoning is not convincing.
Initially, the Court worked with the
right to private and family life in conjunction
with the prohibition of discrimination. But
this line of argumentation was unexpectedly
left out. The Court surprisingly twisted the
reasoning to the protection of human dignity.
This U-turn was probably motivated by the
Court’s conservative definition of family. In
the Court’s view, the family is not a social
construct. It is primarily a biological one
covering only the cohabitation of parents
with their children, and other forms of cohabitation
emulating the biological parental
ties (e.g. adoption, foster care, etc.). These
passages of the judgment are in sharp contradiction
with the understanding of family
life in the case-law of the European Court
of Human Rights (hereinafter “ECtHR”).
It accepts that stable relationships of samesex
couples fall within the notion of “family
life.” The Court made no attempt to make a
distinction of the case from the Strasbourg
case-law. It probably did not intend to provide
any foundations for future cases concerning
LGBTQ rights (such as second-parent
adoption). For these reasons, we are
afraid that the judgment is actually more of a
loss for the LGBTQ community than a win.
4
The full text of the judgment in English is available here: http://www.usoud.cz/en/decisions/20160614-pl-us-715-civil-partnership-as-preclusion-to-individual-adoption-of-a-child/.
5
Zdeněk Červínek and Martin Kopa, “Czech Constitutional Court: Czech Law Forbidding Registered Partners to Adopt Children is Unconstitutional But Is
the Judgment *Really* Good News for LGBTQ?” (Int’l J. Const L. Blog, 29 July 2016) http://www.iconnectblog.com/2016/07/czech-constitutional-courtczech-law-forbidding-registered-partners-to-adopt-children-is-unconstitutional-but-is-the-judgment-really-good-news-for-lgbtq
accessed 27 January 2017.
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