Common constitutional traditions: report in respect of the Czech Republic

MARTINA GROCHOVA

TABLE OF CONTENTS
1. Historical background
2. General issues
2.1. Foundations
2.1.1. Does your legal system have a specific term for ‘constitutional tradition’? If yes, does the term used in the national version of the TEU differ from the English term ‘tradition’? If no, do legal traditions exist in other areas of your  system (private, criminal or administrative law)? Does your system draw distinctions between values, principles and traditions? What can constitute a constitutional tradition in your legal system – parts of a constitutional text, case law, legal theory, conventions, collective constitutional experience and/or long-standing public perception? 
2.1.2. What is the relationship between constitutional traditions and customary constitutional law?
2.1.3 Can institutional arrangements, for example a bicameral legislature or a federal infrastructure, be an expression of constitutional tradition in your system? Can legal techniques such as constitutional and statutory interpretation or – within the principle of proportionality – a balancing of clashing interests qualify as a constitutional tradition in your system? 
2.1.4 How does time factor into constitutional traditions in your system? The phrase (and especially the term used in the German text of the Treaty on European Union (Überlieferung) suggests that constitutional traditions are of some vintage – but how old must they be? A comparison between the English and German texts of the TEU raises the question whether traditions can develop (and possibly end) within a single constitutional regime. The English response is very likely to be positive, given the absence of clear breaks in English constitutional history over the past several centuries, while the German notion of Überlieferungen indicates that something may have to pass on from one regime to the next (or survive some other form of regime change or transition) in order to be an Überlieferung. What is the response to this question in your legal system? Must constitutional traditions be rooted both in
history and in contemporary law?
2.1.5 How detailed are constitutional traditions in your system (broad concepts and ideas, particular norms and precise rules, or both)? 
2.1.6 Are constitutional traditions considered typical, distinctive or unique to your system?
2.2 Subject/content of constitutional traditions 
2.2.1 What is the subject/content of constitutional traditions in your system? Are they limited to the area of human rights protection or can they include institutional arrangements? Can you list the principles that are considered to be part of the constitutional traditions, and provide a short description of them?
2.2.1.1 Democratic state 
2.2.1.2 Liberal state 
2.2.1.3 Separation of powers 
2.2.1.4 Parliamentary republic
2.2.1.5 Respect for human rights 
2.2.1.6 Rule of law
2.2.2 Does your system draw a clear distinction between administrative and constitutional law given that concepts such as proportionality, distinct techniques of statutory interpretation or principles of judicial review developed in administrative law but have crept into and strongly affected
constitutional thinking over time? 
2.3 Constitutional traditions and society 
2.3.1 What is the relationship between traditions and national identity? 
2.4 Practical application of national constitutional traditions and European influence 
2.4.1 Do courts in your system utilize constitutional traditions when dealing with purely national disputes? If so, in what types of cases/disputes? Why? 
2.4.2 Are the constitutional traditions recognized in your system purely national concepts or (also) the result of European influence (Council of Europe/ECHR or EU)? Is it possible to keep these two levels apart after decades of interaction and cross-pollination between systems? 
2.4.3 Have courts referred to Art. 6 (3) TEU or the jurisprudence of the CJEU on constitutional traditions?
2.4.4 Have national constitutional traditions been used by courts as an argument to protect the system from European influence or referred to as a driver of integration, or both?
3. Selected Fundamental Rights 
3.1 Free speech 
3.1.1 Is free speech subject to a proportionality analysis? What are the constitutional standards of scrutiny for free speech? 
3.1.2 Are there any particular types of speech that enjoy
special protection? Or on the other hand, are there any types of speech that are ruled out by the law or by the constitution? Are there limitations of free speech due on ethical grounds?

3.1.2.1 Special protection of particular types of speech 
3.1.2.2. Types of speech limited or ruled out by law
3.1.3 To what extent is anonymous speech protected? Is commercial speech an autonomous category?
3.1.4 Does free speech prevail over minority rights? Is hate speech excluded from the area of constitutionally protected speech, or is it included? If it is included, can it still be punishable if it constitutes a specific crime (defamation, incitement to race hatred, etc.)? How is the interplay fleshed
out between free speech and anti-discrimination law?
3.1.5 Do crimes of opinion exist in your country? In particular, how about blasphemy, contempt of the authorities or a religion? 
3.1.6 Is apology of a crime in itself a crime? 
3.1.7 How is holocaust denial handled? 
3.1.8 How is the matter of the display of religious symbols handled? How are religious issues handled in certain sensitive environments such as schools, courtrooms, hospitals, etc.? How is conscientious objection handled? 
3.1.9 What is the interplay between free speech and
freedom of association? Are they constitutionally separate rights, or is the latter included in the scope of the former?
3.1.10 Is burning the national flag, foreign flags or a political party’s flag allowed?
3.1.11 How have new technologies shaped the evolution of free speech law? 
3.1.12 Have there been any particular “hard cases” that have helped define the scope of this right? 
3.1.13 Are there other areas covered by free speech?
3.1.14 Can you say on which of these questions in your country there is an established legal tradition? How would you state in normative terms the legal traditions in this area?
3.2 Freedom of movement 
3.2.1 Is freedom of movement subject to a proportionality
analysis? What are the constitutional standards of scrutiny for this right? 
3.2.2 What scope is left for the national regulation of this right, considering the EU’s competence on the subject? 
3.2.3 Are there different standards between goods/services/capital/people? 
3.2.4 How is the subject handled towards non-EU countries? 
3.2.5 Are there any forms of resistance to the supranational push towards an EU-wide guarantee of freedom of movement? On what ground? What other constitutional provisions are invoked to resist the widespread protection of this right?
3.2.6 How are social and environmental considerations factored in the freedom of movement jurisprudence? Are there rules in place against the so called social dumping or eco-dumping?
3.2.7 Are there rules in place against industrial relocation abroad? Are these rules compatible with the constitution?
3.2.8 Are there any sectors where the freedom of movement is not applied? Are there rules in place protecting the so-called national champions in certain economic areas? Are there rules in place preventing foreign capitals to take control of so-called strategic businesses? Are these rules constitutional (or would they be)? 
3.2.9 Have there been any particular “hard cases” that have helped define the scope of this right?

3.2.10 Are there other areas covered by freedom of movement? 
3.2.11 Can you say on which of these questions in your country there is an established legal tradition? How would you state in normative terms the legal traditions in this area?
3.3 Judicial Independence 
3.3.1 How are judges selected, at the various levels? Is there room for political interference in the process?
3.3.2 What remedies are in place against the attempt of the political bodies to interfere with the selection and with the day-to-day activity of the courts?
3.3.3 Are some judges selected through an election process? If so, how is the campaign regulated? How about, in particular, the issue of campaign finance for judicial elections?

3.3.4 What instruments can outside groups legitimately employ to exert pressure on courts? 
3.3.5 Is a guarantee of judicial independence explicitly provided for in the constitution or can it be derived from other provisions? 
3.3.6 Are there special rules in place when the constitutional court (or equivalent body, for that matter) adjudicates disputes involving the highest authorities of the state? Do such authorities enjoy special constitutional
guarantees? 
3.3.7 Is the subject particularly topical, or the matter is relatively settled, with no relevant developments in recent years? 
3.3.8 Have there been any particular “hard cases” that have helped define the scope of this guarantee? 
3.3.9 Are there other areas covered by judicial independence? 
3.3.10 Can you say on which of these questions in your country there is an established legal tradition? How would you state in normative terms the legal traditions in this area?

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