: An
Introduction to the Czech Legal System and Legal Resources Online
By Michal Bobek
Michal Bobek is a Ph.D. researcher at the European University Institute in
Published August 2006
Table of contents
1. Introduction
2. The Czech Political and Legal System in a Nutshell
2.2. The Executive
2.2.1. The President of the Republic
2.2.2. The Government
2.2.3. The Ministries
2.2.4. Other Central Authorities under
Governmental Control
2.2.5. Other Central Authorities
Independent of the Government
2.3. Self-Government
2.3.1. Territorial Self-Government
2.3.2. Professional Self-Government
2.4. The Judiciary
2.4.1. Courts of General Jurisdiction
2.4.2. Administrative Courts
2.4.3. The Constitutional Court
3.1. Sources of Law
3.2. Legislation
3.2.1. Types of Legislation
3.2.2. Legislative Process
3.2.3. Promulgation and Publication
of the Legislation
3.3. Case Law
3.4. Legal Doctrine
4. Legal Education and Legal Professions
4.1. Law Schools and Legal Education
4.2.1. Attorney
4.2.2. Public Prosecutor
4.2.3. Public Notary
4.2.4. Judge
4.2.5. Executor
5.1. Legislation Online
5.2. Law Reports and Case Law Online
5.3. Legal Databases
5.4. Major Law Journals and Reviews
5.5. Legal Publishers
5.6. Law Libraries
5.7. Bibliography
5.8. Dictionaries
The
The
Since
The
capital of the
National
currency is the Czech Crown (koruna). The
The
The
population of the
The Czech
legal system is a “continental” legal system, more specifically, due to common
historical roots, it can be said to belong to the “Germanic” legal culture. The
characteristics of the legal system are the following ones:
·
principle areas of law and procedure are codified (Civil and Criminal Codes, Codes of
Criminal, Civil and Administrative Procedure etc.);
·
the system of legal sources is
hierarchical, forming a pyramidal structure of legal force within the legal
system;
·
only written law (legislature) is, at least in theory, recognised as source of law.
The
Constitution of the Czech Republic (hereinafter CCR) (in English), adopted
by the Czech National Council on 16th December 1992 defines the
Czech Republic as a sovereign, unitary, and democratic state governed by the
rule of law, founded on respect for the rights and freedoms of man and of citizens
(Art. 1 (1) CCR).
An
important part of the Constitution and constitutional order generally is the Charter of Fundamental Rights and Basic Freedoms (Art. 3 and Art. 112 (1) CCR). Albeit being in a separate constitutional law,
it has the same force as the Constitution itself.
The
political system is a parliamentary democracy. The head of state is the
President of the Republic, elected in a joint session of both chambers of the
Parliament (Art. 54 and f. CCR). The functions of the head of state are mostly
representative; the genuine power is vested in the prime minister, who is in
turn politically responsible to the Parliament (lower chamber, i.e. the Chamber
of Deputies).
The central
state power is divided into the classical three powers, namely:
·
legislature = the Parliament of
the
·
the executive = the head of state
(the president of the Republic) and the government (as the highest body of the
executive power);
·
the judiciary = the courts of general jurisdiction (civil and criminal),
administrative courts and the
There are
other central bodies, which enjoy high degree of independence from the central
government and cannot be therefore associated with any of the three classical
powers: the Czech National Bank, the Supreme Auditing Office and the Ombudsman.
There are
also territorial self-governing units: municipalities and regions.
The
legislative power is vested in the Parliament (Art. 15(1) CCR). The Parliament
consists of two chambers: the Chamber of Deputies (Poslanecká sněmovna) and the Senate (Senát).
The Chamber of Deputies has 200 members who are elected every four
years. The renewal of the Chamber is always complete. The Chamber holds
standing sessions. It elects its Chairperson and the Vice-chairperson,
establishes committees and investigation commissions. The internal functioning
of the Chamber is regulated by the Standing Rules of the Chamber of Deputies
(law no. 90/1995 Coll., in English).
Members of
the Chamber of Deputies are elected by secret ballot on the basis of universal,
equal and direct right to vote, according to the principle of proportional
representation.
The upper
chamber, the Senate is a permanent body. It is composed of
81 senators, who are elected to a six-year term of office. Every second year
elections for one third of the senators are held. There is thus partial renewal
of the Senate every 2 years.
Senators
are also elected by secret ballot on the basis of universal, equal and direct
right to vote, however according to the principle of majority rule. The
election has normally two rounds: in the first round, a person is elected who
receives total majority of all votes given (i.e. more than 50% votes). If no
one is able to unite the total majority in the first round, a second round is
held; in the second round, simple majority of votes is sufficient (i.e. the
first pass the post system).
The Senate
has a stabilising role in the constitutional system; firstly, because of its
permanent session, it is empowered to adopt legislative measures even when the
Chamber of Deputies is dissolved (Art. 33 CCR). Secondly, because of its
continuity, it tends to be a more moderate body than the Chamber of Deputies. The
internal functioning of the Senate is regulated by the Standing Rules of the
Senate (law no. 107/1999 Coll., in English).
The
executive power is shared between the President of the Republic and the
Government.
The
President (president republiky)
is the head of state. He/she is elected at a joint meeting of both chambers of
the Parliament. The term of office is 5 years, with one re-election possible.
The powers
of the president are mostly of representative and ceremonial nature. There is a number of powers the president is entitled to realise
acting alone (i.e. without the consent of the prime minister or the responsible
minister). These are contained in Art. 62 CCR.
The
president’s powers contained in Art. 63 CCR
and those established by law do, however, require the countersignature of the
Prime Minister or of a member of the government designated by him. In the case
of the exercise of these powers, which are more numerous than those of the president
acting alone, the government is politically responsible for the decisions of the
President.
The first
president of the independent
The
government (vláda)
is the highest body of executive power. It consists of the Prime Minister,
deputy prime ministers and ministers.
The
government is politically responsible to the Chamber of Deputies. Following a
general election, the President of the Republic designates a potential Prime
Minister. Upon the proposal of the designated Prime Minister, the President of
the Republic appoints other members of the government and entrusts them with
the management of the respective portfolios. Within 30 days of the appointment,
the government as a college shall go in the Chamber of Deputies and ask it for
a vote of confidence (for the detailed procedure and its variations see Art. 68
CCR).
The
government decides as a college by an absolute majority of all its members.
Members of
the Government are generally at the same time heads of respective ministries.
There are not many members of the government without a ministerial
responsibility for a department (so-called “ministr bez portfeje”).
The
ministers are appointed by the President of the Republic upon the proposal of
the Prime Minister. The President of the Republic will also recall a minister
or a member of the cabinet if the Prime Minister so proposes.
The number
and portfolios of individual ministries are established by a statute (law no.
2/1969 Coll., on the Establishment of Ministries and Other Central Bodies of
State Administration, as numerously amended). The current number of ministries
is 15. These are:
There is a considerable number of other central agencies,
established by a statute, that perform vital administrative tasks. These
agencies are not managed by a member of the Government. Their head is, however,
appointed by the government. These agencies include:
There are
other central authorities, that are, to a high degree, independent of the
government. The bodies are entrusted with realising administrative task
sometimes running against the interests of the government of the day. Their
independence is guaranteed by the special way of appointing the head of the
body (typically for a fixed period of time) and financial independence.
The
Supreme Auditing Office performs audits on the management of state property and
the implementation of the state budget. The president and the vice-president of
the Supreme Auditing Office are appointed by the President of the Republic on
the basis of the nomination made by the Chamber of Deputies. The functioning of
the Office is regulated by law no. 166/1993 Coll., the Supreme Auditing Office
Act (in English).
The Czech
National Bank is the state central bank, entrusted with maintaining the price
stability, issuing of banknotes and supervision of banking regulations.
Detailed regulation is laid down by law no. 6/1993 Coll., the Czech National
Bank Act.
The office
of the Ombudsperson (the Public Protector of Rights) was created in late 1990
modelled on the Scandinavian example. The task of the Ombudsperson is to
protect people from administrative malpractice or inactivity. Detailed
provisions are contained in the law no. 349/1999 Coll., the Public Protector of
Rights Act (in English).
There are
two types of self-government in the
Territorial
self-government (územní samospráva)
is realised on two levels:
The
(i)
the
power of self-administration in certain areas, where the
territorial unit remains free to adopt legislation if it wishes to do so (area
of independent powers of self-administration);
(ii)
the
exercise of public authority, where the territorial unit acts
in the exercise of public authority and of concrete public competence and where
it is obliged to act following detailed instruction issued by the central
government. In this latter function, territorial units act as a kind of
decentralised bodies of the government (area of the exercise of assigned public
administration).
There are
14 regions. They were created by the constitutional law no. 347/1997 Coll., on
the Creation of Higher Territorial Self-governing Units (in English). The
composition, functioning and powers of the regions are set by law no. 129/2000
Coll., the Regions Act.
The
composition, functioning and powers of municipalities are laid down by law no.
128/2000 Coll., Municipalities Act.
Article
105 CCR provides for the possibility of the state administration being
delegated to self-governing bodies if so provided by a statute. Statutory basis
for professional self-governance (profesní samospráva) can be found in a number of statutes
setting up professional self-regulatory bodies, such as:
The
chambers typically exercise certain degree of disciplinary, ethical and
regulatory powers vis-à-vis its members, with membership being the
precondition for the exercise of the respective regulated profession. Most of
the decisions of the bodies of these chambers can be reviewed at administrative
justice.
The basic
regulation of the judicial function in the Czech Republic is provided by law
no. 6/2002 Coll., Courts, Judges, Lay-judges and the State Administration of
Courts Act [the Judges Act 2002], available in Czech.
There are
three distinct jurisdictions: courts of general jurisdiction, administrative
courts and the
There is
no trial by jury. There is, however, the laic participation in the
administration of justice in the form of laypersons sitting as judges in
chambers, hearing cases at first instance. Laypersons are elected by local
councils (§ 64 and f. Judges Act 2002). Two lay judges sit with a professional
judge, hearing non-specialised cases at first instance. Appellate and Supreme
courts´ chambers are composed of professional judges only.
The
There is a
limited self-administration of the courts, mostly at the supreme level. The
state administration of courts has repeatedly been criticised on the
international as well as domestic forum (cf. e.g. the decision of the
Constitutional Court of
The
territorial as well as personal competence of the courts together with the exact
address of each court and other useful information may be found on the server of the Czech judiciary.
Civil and
criminal courts share the same judicial structure. Together, they form the
courts of general jurisdiction (obecné soudnictví). They are competent in all type of disputes
with the exception of those expressly reserved for the administrative courts or
the
The structure,
functions and powers of the courts of general jurisdiction are regulated by law
no. 6/2002 Coll., the Judges Act 2002.
The
structure of the courts is as follows:
As far as
the access to the case-law of the courts of general jurisdiction is concerned,
only the decisions of the Supreme Court are published. Firstly, there is the
official selection of the Court’s case-law, published in its Collection of the decisions
of the Supreme Court published by C.H.Beck Publishers.
All decisions of the Court (from 2000 onwards) are also accessible electronically.
The
decisions of lower courts are not published, apart from occasional case-notes
in one of the legal periodicals.
Civil Justice
Apart from
the Judges Act 2002, the most important piece of legal regulation in civil
matters is the law no. 99/1963 Coll., the Code of Civil Justice [CCivJ], in Czech, or
alternately here.
The
general courts of first instance are the district courts. In enumerated cases
(Art. 9 CCivJ), the courts of first instance are
regional courts. The list of cases when regional courts act as courts of first
instance is quite long and complex, the most important cases are:
Regional
courts decide on appeals (odvolání) against the decisions of district courts rendered
on the first instance. In cases where the court of first instance is the
regional court, the appellate court is one of the two High Courts.
The
Supreme Courts decides, as the court of third and last instance, about
extraordinary appeals (dovolání)
against the final decisions of regional or high courts, acting as appellate
courts. This type of extraordinary remedy should be limited to cases of general
legal significance (cf. Art. 237 CCivJ).
Criminal Justice
The
procedural norm in the area of criminal justice is law no. 141/1961 Coll., the
Code of Criminal Justice (CCrimJ), in Czech. A special procedural regime was recently
introduced for criminal liability of persons under 15 years of age (law no
218/2003 Coll., Juvenile Criminal Justice Act).
The courts
of first instance in criminal matters are generally district courts. If,
however, the criminal offence is punishable by at least 5 years imprisonment,
the courts of first instance become the regional courts.
An appeal
against the first-instance decision of the district court goes to the regional
court. Appeals against decisions rendered on the first instance by regional
courts are assessed by a High Court on appeal.
The
Supreme Court decides on extraordinary appeals (dovolání) against final appellate
decisions of regional courts and high courts. An extraordinary appeal should be
limited to questions of law only. There is another special remedy in criminal
matters before the Supreme Court, the so-called complaint of illegality (stížnost pro porušení zákona). Only the Minister of Justice is entitled to
file this extraordinary remedy before the Supreme Court; its availability is
limited to substantial flaws in the procedure, which may have caused the
illegality of a (otherwise final) decision (§ 266 CCrimJ).
Administrative
judiciary (správní soudnictví) is
a two-layer system: specialised administrative chambers within regional courts act
as courts of first instance. The court of second and last instance is the Supreme Administrative Court (Nejvyšší správní soud), seated in
The
organisation of the administrative justice is laid down in the law n. 150/2002
Coll., the Code of Administrative Justice (English translation), [CAJ
2002].
Specialised
chambers of regional courts are the administrative courts of first instance.
The general remedy against a final decision of a court of first instance in
administrative matters is the cassation complaint , which is dealt with by the
The task
of the administrative courts is to protect individual rights in the area of
public law. The task is realised in 4 main types of proceeding (cf. § 4 CAJ
2002):
Administrative
courts furthermore decide on election matters (registration, voting etc) and
matters concerning political parties and political movements (registration, dissolution).
Competence
conflicts between the administrative court and the courts of general
jurisdiction (civil courts) are resolved by a special judicial panel composed
of equal number of justices of the Supreme Court and the
The
decisions of the
The
constitutional jurisdiction is represented by one specialised
The
structure and functions of the
The
contemporary
There are
various types of procedure before the
In both
cases, the
The second
type of review of constitutionality is the “concrete”
review: this is realised in the form of decisions over constitutional
complaints against final decisions or other encroachments by public authorities
infringing constitutionally guaranteed fundamental rights and basic freedoms.
In this type of proceeding, any type of an act or omission of a public
authority or judicial decision can be challenged.
The
decisions of the
The Czech
legal system is a civil law system. It can be grouped within the Germanic
continental legal culture.
The
substantial areas of law are codified. The main codes are:
The main
procedural codes are:
Sources of
law are nowhere fully or exhaustively listed. The sources of law and their
hierarchy are discerned by the legal doctrine and followed by the practice and
in the case-law.
The legal
order is assorted in a pyramidal-type structure (the Kelsenian pyramid of norms), where the lower levels of the
pyramid have to be compatible with the higher.
The
structure is as follows:
Since the
The
various types of legislation are distinguished by two key elements:
Constitutional laws (ústavní zákony) are
legislative acts of the highest force. They are passed by a special majority
being necessary in both Chambers of Parliament and with the agreement of both
chambers (the concurrence of three-fifths of all Deputies and three fifths of
all senators present – Art. 39 (4) CRR).
There is a
plurality of constitutional laws (i.e. not a single constitutional document),
all the constitutional laws forming the so-called constitutional order (ústavní pořádek) of
the
The most
important constitutional laws are:
International
treaties ratified under Art. 10 CCR take precedence over simple laws. This
means that in the case of conflict between a provision of a law and a provision
of an international treaty adopted under Art. 10 CCR, the latter shall prevail.
The most important treaty in this category is the Council of Europe’s Convention for the Protection
of Human Rights and Fundamental Freedoms.
Laws (zákony) are the
universal form of decision making adopted by the Parliament. For a law to be
adopted, the simple majority of the present members in the Chamber of Deputies
and the simple majority of present senators (i.e. simple majority in both
houses) are required (Art. 39 (1) and (2) CCR).
In the
legislative process leading to the adoption of a simple law, the political will
of the Chamber of Deputies is decisive. If, in the course of this legislative
procedure, the Senate rejects a bill, the Chamber of Deputies can uphold the
bill and pass it against the will of the Senate by an absolute majority of all
Deputies (Art. 47 CCR). The same goes for the veto of the President of the
Republic, which can also be overturned and the bill approved by an absolute
majority of the all the Deputies (Art. 50 (2) CCR).
Consent
laws are special sort of laws, for the adoption of which is basically required
the concurrence of the will of both chambers, i.e. the Chamber of Deputies
cannot overturn the negative vote in the Senate. These are types of laws are
provided in Art. 39 (3) CCR and Art. 40 CRR (by
absolute majority and qualified majority respectively) and include issues such
as electoral laws, laws concerning the principles of dealings and relations of
both chambers, movements of troops or declaration of war.
Senate’s legislative measures are a special type of legislation with the force of law (Art. 33
CCR). Their purpose is to keep the legislative power of the
Government orders are a form of
derived legislation, adopted by the government as a college. Albeit being a
form of derived legislation, an express provision authorising the government to
adopt a precise order is not necessary. The government is entitled to pass
orders of its own motion, provided that the orders are strictly limited to the
implementation of the laws and that they remain within the bounds thereof (cf.
Art. 78 CCR).
Regulations (vyhlášky) – are the other
principle form of derived legislation, adopted by the ministries and other
central administrative bodies or self-governing bodies. Unlikely the government
orders, regulations can be issued only upon an express empowerment contained in
the respective law. They must of course also stay within the bounds of the law
(Art. 79 (3) CCR).
The
legislative process varies according to the type of legislation adopted. If
concentrating on the legislative process in the Parliament (i.e. adoption of
laws), all the bills (návrhy zákonů) are
introduced in the Chamber of Deputies. Bills may be introduced by Deputies,
groups of Deputies, the Senate, the government, or representative bodies of
higher self-governing territorial units (i.e. regions) (Art. 42 CCR). In
practice, the great majority of the bills are introduced by the government.
The
detailed provisions of the (floor) debate in both chambers of the Parliament
are regulated by the Rules of Procedure of both chambers (by law no. 90/1995
Coll., Standing Rules of the Chamber of Deputies Act, in English, and by law
no. 107/1999 Coll., Standing Rules of the Senate Act, in English,
respectively).
For
legislation to be valid, it must be duly promulgated first (Art. 52 CRR). The
mode of promulgation of legislation is laid down by the law no. 309/1999 Coll.,
the Collection of Laws and the Collection of International Treaties Act.
Generally speaking, all the abstract legal acts of general application must be
published in the Collection of Laws. All the international laws by which the
If an act
is published in the Collection of laws (Sbírka zákonu, abbreviated in Czech as “Sb.”),
the standard form of citation is:
“number
of the document”/”year of the publication” Coll.
The number
of every document is unique. The document number 1/1993 Coll. thus refers to
the first document published in the Collection of laws in the year 1993, which
was the Constitution of the
Both
Collections are published in a printed version by the Ministry of Interior.
They are also fully accessible online in a “pdf”
format (portable document format) from 1945 onwards at the Ministry of Interior page or on the Sagit Publishing site (access free of charge).
From the
traditional continental dogmatic point of view, case law is not a recognised
source of law. This perception still holds true of the Czech legal theory. In
practice, however, the decisions of the courts, especially the decisions of
Supreme Courts and the
From the
1989 onwards, there is an undeniable and continuous rise of the importance of
case law in the Czech legal system.
Legal
doctrine is not a source of law in the Czech legal system.
The
general legal programme offered by the Czech law public law schools is the 5
year lasting M.A. (magistr,
abbreviated with Mgr. before the name). It is the qualifying degree and the
minimal requirement for any traditional legal profession (attorney, prosecutor,
judge).
Higher
degrees are the JUDr. (iuris utrisque doctor,
so-called “small” doctorate in law, written before the name) and the research
degree of Ph.D (“normal” doctorate in law, written
after the name). The small doctorate is obtained by submitting a written piece
of work anytime after completing the Magister. The
normal doctorate is obtained by research and after submitting a dissertation.
Other academic titles one may encounter especially with more senior lawyers are
the CSc. (Candidate of Science) or the higher degree
of DrSc. (Doctor of Science), both written after the
name. These titles are no longer
awarded.
The Czech
law faculties will gradually be obliged to implement the
There are
4 public law schools that offer full legal education: Praha (
The Charles University Law Faculty is the oldest and can be said
to be the most respected law school in the
The Masaryk University Law Faculty was founded in
1919. Its name is derived from the first Czechoslovak president, T.G. Masaryk. The faculty was closed down in 1950 by the
Communist regime and re-established in 1969 at the time of the so-called Prague
Spring. The faculty has been, especially in the last few years, a more dynamic
institution than the Charles University Law Faculty. The faculty comprises
about 3.000 students.
The Western Bohemia Law Faculty is situated in Pilsen. It is a relatively small faculty, founded in 1991.
The Palacky University Law Faculty was originally
founded in 1566, closed however in 1860. The University was re-established in
1947, the Law Faculty in 1991. The current number of students is about 1300.
The Anglo-American College School of Law is a private institution
of higher education based in
Apart from
the teaching institutions, there is also the Institute of State and Law within the Czech Academy of Science. The Institute is a research-only
institution.
There is a
special institution established for the continuing education of judges and
prosecutors, the Judicial Academy (Justiční akademie) located in Kroměříž.
Attorneys
provide individuals with legal services for remuneration. The provision of
legal services means representation before a court of law and other authorities,
defence in criminal cases, granting legal advice, drawing up legal papers,
processing legal analyses and other forms of legal aid if carried out
systematically and for a fee.
An
attorney is a person who completed a master’s degree in law followed by a 3
years of professional training with a senior attorney and successfully passed
the bar exam. The list of attorneys entitled to practice may be viewed here.
The
exercise of the profession is regulated by the law no. 85/1996 Coll., on the
Legal Profession (in English).
The
professional body is the Czech Bar Association
Public
prosecutor represents the state (public interest) in criminal proceedings.
Public
prosecutors are appointed following a 5 years study of law (magister),
3 years period of training and a professional exam.
The
functions, organisation and hierarchy of the public prosecution are laid down
in law no. 283/1993 Coll., Public Prosecutor’s Office Act.
Public
notary is a private person entrusted with the public office of notary, which
entails activities like the drawing of deeds and documents of sale of land,
verification and legalisation of documents etc.
The
profession is regulated by law no. 358/1992 Coll., Public Notaries and their
Functions Act.
The
professional body is the Czech Notary Chamber.
Judges are
appointed by the President of the Republic, following 5 years of legal studies
(magister), 3 years of legal clerkship and the
successful pass of judicial examinations. A judge must be at the time of
his/her appointment at least 30 years old. The list of current judges may be viewed online.
A new
legal profession, created by the law no 120/2001 Coll., On Judicial Executors
and Executions. Executor is a private person entrusted with the enforcement of
civil and commercial judicial decisions and awards.
The access
to the profession is conditional upon having completed 5 years degree in law (magister), 3 years of professional training and a
successful pass of the professional exam.
The
professional body is the Executors´ Chamber (Exekutorská komora).
The most important
servers providing update on the newest developments in Czech and European law
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following legal databases are available upon subscription. They contain
compendium of all the valid law (consolidated versions) and most of the
available case law.
Major
Czech publishers of legal literature include:
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