Two Steps Forward?
On May 25 2024 the Advocate General Nicholas Emiliou delivered his opinion in the Case C-406/22 CV v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky on several issues regarding the application of the safe country of origin (SCO) concept. The case could have significant impact on SCO policies of several EU Member States and the rights of refugees as it addresses the possibility of designating countries as safe with territorial exceptions as well as a more active approach to judicial review of SCO designations. If adopted by the CJEU, the AG’s suggestions could serve to enhance refugee protection, though the adoption of the Pact on Migration and Asylum might possibly counteract this.
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The New Transgender Ruling in Czechia
In a recent decision in the case of N.G. (Pl. ÚS 52/23), the Czech Constitutional Court (CCC) addressed the pressing issue of trans persons’ rights, more specifically the requirements for legal gender reassignment, involving (often involuntary) sterilisation and castration. When compared to the earlier decision in T.H. (Pl. ÚS 2/20), the new ruling represents a major shift. In fact, the CCC changed its legal position by 180 degrees, giving preference to protecting individual rights over deferring to the legislator’s choices.
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Between Return and Protection
Last month, the ECJ responded to a preliminary reference of the Regional Court in Brno concerning Czechia’s so-called return procedure. The ECJ ruled that a third country national cannot be subject to a return decision if they applied for international protection and a first-instance decision on that application has not yet been delivered. Curiously, the ECJ thereby answered a question it had not actually been asked, while contradicting the conclusion of the Grand Chamber of the Czech Supreme Administrative Court (“SAC”), rendered shortly before. While the ECJ’s ruling will nonetheless improve some of the problems that have inhered within Czechia’s approach to international protection and return procedures, its failure to answer the referred question constitutes a missed opportunity to facilitate a productive dialogue with referring courts in an area of law where preliminary references have been exceedingly rare.
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Subsidy Fraud, Relevant Markets and Presidential Elections
Former prime minister and now a member of the Czech parliament Andrej Babiš scored a victory only a few days before the upcoming Czech presidential elections. On 9 January 2023, the Municipal Court in Prague finally issued a verdict in a criminal case involving him and his colleague Ms Nagyová on charges of grant fraud and damaging the financial interests of the European Union. The court concluded that the acts of Mr Babiš and Ms Nagyová, as framed by the prosecution, did not constitute a felony. Hence, to the surprise of many, including Mr Babiš’ attorney, the court acquitted both defendants. The importance of the case can hardly be understated.
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Czechia’s First Climate Judgment
Czechia’s first climate change lawsuit ended with a small sensation. On the hot summer day of 15th June, the Municipal Court in Prague ruled that four Czech Ministries violated the plaintiffs‘ right to a favourable environment. The violation consists in the omission to set any concrete mitigation measures that would lead to reduction of greenhouse gas emissions by 55% by the year 2030 compared to the year 1990. As the Urgenda Climate Case and other landmark judgments have paved the way for climate action around the world, this first noteworthy ruling of the region blazed the trail specifically for other courts in Central and Eastern Europe.
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Evasive, Insensitive, Ignorant, and Political
Czech law stipulates that a trans person who seeks gender reassignment must undergo surgery “while simultaneously disabling the reproductive function and transforming the genitalia.” Although a majority of judges of the Czech Constitutional Court agreed that this requirement is clearly unconstitutional, the provision has nevertheless withstood constitutional scrutiny and remains part of the Czech legal order.
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Legal Safeguards for the Volunteers of Ukraine’s Cyber Militia
What is the legal status of foreigners who enlist in Ukraine’s volunteer cyber militia? The Putin regime’s brutal invasion of Ukraine means that getting clarity on this question is a matter of urgency. However, more broadly, this is a question that will remain important for future conflicts if we do not properly engage with it now.
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The Taming of the Czech Executive
On Wednesday, 2/2/2022, the Czech Supreme Administrative Court quashed an executive measure imposing the so-called “2G rule” (geimpft/genesen, i.e. vaccinated/recovered) on selected service providers, most importantly restaurants and hotels. While the vocal opponents of vaccination celebrate the ruling and refer to the judiciary as ‘the last bastion of freedom’, there was some major misrepresentation of what the SAC has (not) established in this very viral judgment. The executive measure under review was not quashed because ‘the state must not force people into voluntary vaccination’, nor because ‘kicking the unvaccinated out of pubs is illegal and must stop’. Since the only legal argument for quashing the measure was the lack of competence of the Ministry of Health, it seems like there was much ado about nothing.
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Full Steam Back
On 10 December 2021, almost exactly five years after its infamous Identity Decision, the Hungarian Constitutional Court was expected by the Government to declare the ECJ Judgement C-808/08 to be contrary to Hungary’s constitutional identity. But as a big surprise for many, the Court dodged the conflict and avoided to offer arguments against the supremacy of EU law to the Hungarian Government. Unlike Poland, it has only just prevented a full-blown conflict with the EU.
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Babiš’s Media
Just before the parliamentary elections on October 8 - 9 2021, the Czech populist Prime Minister Andrej Babiš banned a group of journalists from Czech and foreign media outlets from attending his press conference with Hungarian PM Viktor Orbán. It is telling of Babiš’s disregard for the rules of the democratic game. The erosion of freedom of press in Czechia continues, but the parliamentary election results might change the state of play.
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Post-Electoral Changes in Czechia with a Hospitalised Head of State
The Czech Republic held parliamentary elections this past weekend, on 8 and 9 October 2021. The party of the incumbent Prime Minister Andrej Babiš was defeated, albeit by a small margin, and for the first time in its history, the country will most likely be led by a government composed of no less than five political entities. Constitutionally (and traditionally), the President of the Republic moderates the post-electoral negotiations between the parties, convenes the first meeting of the newly established Chamber of Deputies, and appoints the new Prime Minister and the government. However, President Miloš Zeman was taken to hospital yesterday, on the day after the general elections, and remains hospitalised at an intensive care unit. Could the President’s illness at this very crucial moment cause a constitutional stalemate?
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