Abstract
The Czech legal system is the example of the country in transition from the communist authoritarian system of the 1980s into a new democracy. The issue of precedent (or case law) is a good example of this. In discussing the role of case law, the era of the 1990s was full of debates about the actual importance of judge-made law in a newly emerging legal system. Many lawyers in the 1990s or early 2000s rejected any value which precedents might have in a civil law system. In contrast, the second decade of the twenty-first century is facing a completely different scenario. Now one can hardly find a Czech scholar who would continue to claim that case law has no law making function and no force. Instead, new problems emerged, including temporal application of new precedents. With the beginning of the second decade of the twenty-first century the issue of prospective effects of precedents started to be analyzed. First, this debate took place in judicial decisions, then legal doctrine followed. The case law and legal scholarship try to outline several basic models of temporal effects of case law. The actual model depends on the area of law and parties involved.
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Notes
- 1.
According to some authors, that is one the reason the independence of judges is “a concept often misunderstood” in the post-Communist region. Cf. Emmert 2002.
- 2.
In the course of the late 1990s and early 2000s, while being a practitioner before Czech law courts, I encountered such an attitude many times.
- 3.
Supreme Court has published all its case law since 2000. All decisions of the Supreme Administrative Court (which started to operate in 2003) and the Constitutional Court (created in 1993) are now available on-line.
- 4.
The Law No. 335/1991 (all numbers of laws referred therein refer to the Official Gazette, in Czech Sbírka zákonů), on courts and judges, as amended by the law No. 30/2000. Today the same institution is in the Law No. 6/2002, on courts and judges (§ 20). The Czech law has been inspired by the German model (see Alexy and Dreier 1997, 17). Cf. the en banc practice of US Federal Courts of Appeals which usually decide in three-judge panels, but one reason to transfer such a case to a larger composition is the fact that it is desired to depart from case law established in that particular circuit. For a general overview of this practice, see, e.g., Ginsburg and Falk 1991.
- 5.
The Law No. 150/2002, procedural code on administrative judiciary (§ 17).
- 6.
Cf. the Constitutional Court’s judgments of 20 September 2006 No. II. ÚS 566/05, of 11 September 2009 No. IV. ÚS 738/09 (both with respect to the Supreme Court) or the judgment of 18 April 2007 No. IV. ÚS 613/06 (with respect to the Supreme Administrative Court).
- 7.
This seems to be the consensus of Czech legal scholarship, quite often influenced by German scholarship. Cf. Melzer 2010.
- 8.
Cf. the Constitutional Court’s judgment of 5 August 2010 No. II. ÚS 3168/09 and the text relating to the footnote 52 below.
- 9.
A good example of the theoretical problems relating to case law in the 1990s was the case referring to the sudden change of case law by the Supreme Court – judgment of the Constitutional Court of 18 February 1999, No. I. ÚS 526/98 (as translated at http://www.usoud.cz/en/decisions/): “Consideration of the predictability of the law (its consequences) cannot be restricted only to its grammatical text. It is judicial decision making which – although it does not have a classical precedential nature – interprets the law, or completes it, as the case may be, and its relative constancy guarantees legal certainty and also insures general confidence in the law. This applies particularly to the Supreme Court, which is the supreme judicial body in the field of the general judiciary (cf. Art. 92 of the Constitution). This, of course, does not deny that judicial case law can develop and change with regard to a number of aspects, in particular with regard to changes in social conditions.”
- 10.
In fact what made the change of the Czech conception of precedent was not legal scholarship but the case law of the Czech Constitutional Court. It shall be noted that Constitutional Court in its first decade was composed of several legal philosophers who were trained in the West. One of the ‘Founding Fathers’ of the Czech Constitutional Court’s jurisprudence was Pavel Holländer, a legal philosopher who served as justice between 1993 and 2013. In more detail see Kühn 2011, Chapter 5.
- 11.
The judgment of 21 November 1996, No. IV. ÚS 200/96. Cf. similarly the German Federal Constitutional Court, BVerfGE 18, 224 (240) and BVerfGE 84, 212 (227).
- 12.
The first decision in that line is the judgment of 25 November 1999, No. III. ÚS 470/97.
- 13.
Civil Code, Law No. 89/2012.
- 14.
Cf. with regards to common law Juratowitch 2008, 199 ff. Cf. Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, s. 379 (Lord Goff of Chieveley states that prospective overruling has no place in British common law). Recently, this strict legal opinion has been somewhat modified in the judgment of the House of Lords National Westminster Bank plc v. Spectrum Plus Limited and others [2005] UKHL 41 (“Never say never”, noted in para 41 Lord Nicholls of Birkenhead after an in-depth analysis of US, Indian, ECHR and ECJ case law; cf. also para 74 of Lord Steyn opinion: “I would not rule out the possibility that in a wholly exceptional case the interests of justice may require the House, in the context of a dispute about the state of the common law or even about the meaning or effect of a statute, to declare that its decision is not to operate retrospectively.”).
- 15.
It is the old rule that reopening of the proceedings is in such situations impossible. To put it simply, reopening could be possible only if new evidence arose. New evidence is a factual issue, that is why overruling earlier case law is never the issue of fact. Cf. already judgment of the Czechoslovak Supreme Administrative Court of 29 October 1937 No. 15043/37, recently judgment of 1 March 2004 No. IV. ÚS 792/02 (“different (subsequent) interpretation of law, as made in the judgment of the Constitutional Court, is not the circumstance which would justify reopening of proceedings”). The only exception to this rule is derogation of unconstitutional law by the Constitutional Court – according to Constitutional Court Act, Art. 71 para 1 (law No. 182/1993) if criminal judgment had been made according to the law which has been found unconstitutional, the proceedings shall be reopened if the actual judgment has not yet been served.
- 16.
West Midland Baptist (Trust) Association Inc v Birmingham Corporation [1970] AC 874, at 898.
- 17.
I emphasize modern as earlier civil law prior to nineteenth century did not satisfy those requirements. In Austrian Empire these formal requirements were stated for the first time by creation of Imperial code (Reichsgesetzblatt) in 1849. Cf. Bobek 2007.
- 18.
Cf. for instance Czech Supreme Administrative Court’s judgment of 20 August 2009, No. 1 Afs 33/2009 – 124, paras 25 and 26. The Supreme Administrative Court accepts case law of the Constitutional Court conflicting with its own case law without referring the case to the grand chamber. However, if there is conflicting case law of both courts for some time, it might be the problem to say when finally the Supreme Administrative Court accepted the constitutional case law. Quite often, the change takes place gradually, through a series of step by step judgments. In contrast, the Czech Supreme Court requires any change of its case law to take place through its grand chambers, so even though overruling is mandated by the Constitutional Court case law, it is still necessary to send the case to the grand chamber. The precise moment of overruling is obviously much more visible in the latter example.
- 19.
This happened before the Czech Supreme Court overruled its case law on statutory non/limitation of defamation claims. Before, the judgment of the High Court in Olomouc of 17 February 2004, No. 1 Co 63/2003, was published in the Supreme Court case reporter as No. 4/2008 [Sbírka soudních rozhodnutí a stanovisek].
- 20.
It seems that pure prospectivity is applied only in the USA, and there very exceptionally. In 1964 the US Supreme Court applied this doctrine in England v. Medical Examiners, 375 U.S. 411 (1964).
- 21.
See the opinion of the Constitutional Court sitting en banc of 14 December 2010, No. Pl. ÚS-st. 31/10. The Constitutional Court proclaimed that search and seizure made according to the provision which was found unconstitutional by the Court cannot be challenged if it had happened before the publication of the Court’s judgment.
- 22.
Judgment Defrenne II, 43/75, ECR 455 (1976).
- 23.
Paras 70–75.
- 24.
For instance in Austria this is the case of Franz Bydlinski, a scholar influential in his writings also in the Czech Republic. See Bydlinski 2001
- 25.
Cf. also § 19 of Czech Criminal Code, Error of law: (1) Who is not aware of unlawfulness of his action while committing criminal offence does not cause crime if he could not avoid this error. (2) Error could be avoided if the perpetrator shall know the law due to his statutory duties, decision of the administrative agency, contract, profession, position or function or if the perpetrator shall recognize unlawfulness without obvious problems.
- 26.
The opinion of the Constitutional Court of 1 November 2005, No. Pl. ÚS-st 21/05, published as No. 477/2005 Official Gazette.
- 27.
The judgment of 1 July 2010 No. Pl. ÚS 9/07, published as No. 242/2010 Official Gazette, para 54 (restitution of the Church property case).
- 28.
The judgment of 4 December 2008, No. I. ÚS 428/06.
- 29.
Cf. Constitutional Court’s judgments of 25 September 2008 No. II. ÚS 519/08; of 25 June 2009 No. I. ÚS 89/07; of 5 August 2009 No. I. ÚS 566/07.
- 30.
Judgment of 5 August 2010 No. II. ÚS 3168/09. Cf. case note Kühn 2010.
- 31.
Para 21 of the judgment.
- 32.
Even if those argument do not persuade the court, the court would have to address them and explain why they do not matter in this case.
- 33.
In his article, Bydlinski has asked cynically whether knowledge of case law would be tested and whether it matters for prospective application of case law whether or not the person knew the old case law (Bydlinski 2001).
- 34.
Cf. e.g. Constitutional Court’s judgment of 5 September 2012, No. II. ÚS 3/10.
- 35.
See the judgment of 17 December 2007, No. 2 Afs 57/2007-92. This judgment was originally met with some hesitation among justices of the SAC, so it was not published in the Official case reporter of the SAC. However, today no one disputes its validity. In fact, the SAC grand chamber soon took over its legal opinion in its decision of 15 January 2008, No. 2 As 34/2006-73, published as No. 1546/2008 SAC reporter, AQUA SERVIS v. Ministry of environment.
- 36.
Judgment No. 2 Afs 57/2007-92 (emphases added). In this case SAC noticed that overruling had taken place before the lawsuit was made so there was no need to go beyond 60 days limit to make all arguments.
- 37.
See decisions of 21 October 2008, No. 8 As 47/2005-86 and No. 6 As 7/2005-97.
- 38.
See idem, paras 57.
- 39.
Judgment of 30 January 2009, No. 2 As 41/2008-77 (Mostecká uhelná v. Krajský úřad Ústeckého kraje).
References
Alexy, R., and R. Dreier. 1997. Precedent in the Federal Republic of Germany. In Interpreting precedents – A comparative study, ed. Neil MacCormick and Robert S. Summers. Dartmouth: Aldershot.
Bobek, M. 2007. The binding force of Babel: The enforcement of EC law unpublished in the languages of the New Member States, EUI LAW working paper No. 2007/6.
Bobek, M., and Z. Kühn (eds.). 2013. Judikatura a právní argumentace [Case law and legal argumentation], 2nd ed. Praha: Auditorium
Bydlinski, F. 2001. Gegen die „Zeitzündertheorien“ bei der Rechtsprechungsänderung. Juristische Blätter, p. 19 ff.
Damaška, M. 1986. The faces of justice and state authority. A comparative approach to the legal process. New Haven/London: Yale University Press.
David, L. 2008. Co je precedent v rozhodnutí českých soudů? [What is precedent in decisions of Czech courts?]. In Dny práva. Brno: Tribun, 1240 ff.
Dawson, J.P. 1968. The oracles of the law. Ann Arbor: The University of Michigan Law School.
Emmert, F. 2002. The Independence of Judges – A concept often misunderstood in Central and Eastern Europe. European Journal of Law Reform 3: 405.
Ginsburg, D., and D. Falk. 1991. The D.C. Circuit Review, September 1989–August 1990: The Court En Banc: 1981–1990. George Washington Law Review 59: 1008.
Juratowitch, B. 2008. Retroactivity and the common law. Oxford: Hart.
Kühn, Z. 2002. Aplikace práva ve složitých případech: k úloze právních principů v judikatuře [Application of law in hard cases: The function of legal principles in case law]. Praha: Karolinum.
Kühn, Z. 2010. Ústavní soud k intertemporalitě judikatorních změn [The Constitutional Court on temporal application of overruling], Jurisprudence No. 8/2010: 32–39.
Kühn, Z. 2011. The judiciary in Central and Eastern Europe. Mechanical jurisprudence in transformation? Leiden: Martinus Nijhoff.
Kühn, Z. 2013. Časová působnost judikatury [Temporal application of case law]. In Judikatura a právní argumentace [Case law and legal argumentation], 2nd ed, ed. M. Bobek and Z. Kühn. Praha: Auditorium.
Kühn, Z., M. Bobek, and R. Polčák (eds.). 2006. Judikatura a právní argumentace [Case law and legal argumentation]. Praha: Auditorium.
Melzer, F. 2010. Metodologie nalézání práva [Methodology of law finding]. Praha: C. H. Beck.
Reynolds, W.L. 1991. Judicial process. St. Paul: West Publishing.
Varga, C. 1995. Transition to rule of law. On the democratic transformation in Hungary. Budapest: Institute for Legal Studies of the Hungarian Academy of Sciences.
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Kühn, Z. (2015). Towards a Sophisticated Theory of Precedent? Prospective and Retrospective Overruling in the Czech Legal System. In: Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions. Ius Comparatum - Global Studies in Comparative Law, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-16175-4_6
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