International Human Rights Case Law in Domestic High Politics

Constitutional courts play an important role in separation of powers in modern states when checking other branches if their legislative and administrative outputs are in conformity with competences as envisaged by constitutions. The possibility to invalidate legislation passed by directly elected representatives of the people belongs to the most intrusive powers, therefore constitutional judges might welcome any additional layer of their legitimation. Case law of international human rights bodies may provide such legitimation – constitutional courts can refer to international case law based on the treaties previously agreed to by the other branches of government. On the case of the Czech Constitutional Court, the paper uncovers the factors which influence the use of international human rights case law by constitutional courts in order to invalidate domestic legislation. The Czech Republic belongs to a larger group of states which joined the ECHR system after the fall of communist regimes. The group shares certain characteristics, e.g. the initially very low level of familiarity with the ECtHR case law. With growing familiarity with the ECtHR case-law, which was enabled also by accessibility of judgments via internet, we expect its greater use when invalidating domestic laws. We focus only on the constitutional review cases leading to the annulment of a legislative act, because these cases are the most closely related to the issue of separation of powers. Our study combines political science and legal approaches in order to contribute to the discussion on the influence of international jurisprudence on the domestic practice. We try to understand the process of proliferation of references to international HR case law by constitutional courts and identify factors that influence the use of such references. We conduct the study on the case of the Czech Republic and suggest hypotheses for further confirmation by other countries. First, using the network analysis, we identify the crucial nodes which “introduced” international jurisprudence to the Czech national case law. We expect that in the course of time, the network will be less centred around few crucial nodes as the availability of international case law (with the accessibility via internet) and also familiarity with international case law (with growing expertise with the system) will increase and references will be made directly to international case law. The individual judges in constitutional courts then should not rely so much on the previous domestic case law as in early years, but can make their own research on international human rights jurisprudence. After identifying the crucial nodes, the study looks deeper in these important domestic cases and tries to identify the shared characteristics. Moreover, interviews with the constitutional judges and experts on the Constitutional Court will be conducted in order to identify the crucial elements which led to the use of international case law. The legal expertise will help in identifying cases in which the international case law could have been clearly used, but was not. Such a check should help in strengthening our conclusions.