Subsidiarity of Human Rights in Practice: The relationship between the Constitutional Court and Lower Courts in Czechia
| DOI | 10.1177/0924051918820987 |
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
| Author | Jan Kratochvíl |
| Subject Matter | Articles |
Article
Subsidiarity of Human Rights in
Practice: The relationship
between the Constitutional Court
and Lower Courts in Czechia
Jan Kratochv´
ıl
Palacky University, Czech Republic
Abstract
The principle of subsidiarity is viewed as the cornerstone of the protection of human rights. Inter-
nationally, it is primarily the responsibility of states to ensure that human rights are respected and
protected on a domesticlevel and any international protection mechanism is onlysupplementary. At
the domestic level, apex courts in acountry also provide only subsidiary protectionof human rights,
which must first and foremost be protected by lower level courts. Subsidiarity has two facets: the
obligation of lower courts to directlyapply human rights and the corresponding deference ofhigher
courts to thatapplication. Little attentionhas been given so far to how domesticsubsidiarity of human
rightsworks in practice and how human rightsare in fact applied by the primary level of courtsystems.
This articleuses Czechia as a case studyto test the hypothesisthat if lower courts apply humanrights,
then there is a lowerchance that the ConstitutionalCourt, as an apex court, will find a human rights
violation in that particular case. By statistical analysis of hundreds of decisions of Czech courts this
hypothesis is confirmed. The findings are indicative that subsidiarity actually works in practice.
Keywords
Human rights, subsidiarity, courts, Czech Republic
1. Introduction
The current buzzword in international protection of human rights is ‘‘subsidiarity’’. Subsidiarity is
inherent in any decision-making of international human rights law.
1
Numerous domestic jurisdic-
tions also employ human rights subsidiarity as a functional relationship between apex courts and
Corresponding author:
Jan Kratochv´
ıl, Faculty of Law, Palacky University, Olomouc, Czech Republic.
E-mail: kratochvil.jan@upol.cz
1. Paolo G Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97 American
Journal of International Law 38, 69.
Netherlands Quarterly of Human Rights
2019, Vol. 37(1) 69–84
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lower courts. But does subsidiarity actually work in practice? Do primary level courts actually
apply human rights law? And does the application of human rights law at lower jurisdictional
levels matter, in the sense that human rights are indeed then protected at the lowest level and the
apex courts do not need to remedy the rights violation?
The aim of this study is to examine the relationship between lower courts and an apex court in a
particular jurisdiction, which can inform us about how subsidiarity works in practice at the lowest
levels of a judicial system. The main hypothesis of this research is that when human rights have
already been invoked by lower courts, the apex court is less likely to find a human rights violation.
Human rights thus could and should be already used by first and second instance courts. They
should not be considered foreign or irrelevant to decision-making at this level of jurisdiction. This
hypothesis was tested on the example of Czechia, through a statistical analysis of hundreds of
decisions of first and second instance courts.
This article starts with a general outline of the principle of subsidiarity, which forms the
theoretical background of the hypothesis. A section on methodology describing how the data, that
is decisions of courts, were obtained, and a brief description of the compiled dataset, follows. The
subsequent main section tests the hypothesis by statistical analysis of the decisions included in the
dataset.
2. Subsidiarity of human rights
2.1. Subsidiarity in International Law
The principle of subsidiarity has its origins in the teachings of Aristotle and later in Catholic social
theory.
2
Evans and Zimmermann describe subsidiarity as ‘primarily a decentralising principle,
which favours decentralised decision-making over centralised decision-making’.
3
The substance
of subsidiarity is that decision-making at a higher level does not necessarily encroach on decision-
making at the lower level. In the context of human rights decision-making, this facet of subsidiarity
transforms into deference of higher courts to decisions taken by lower courts.
4
Yet, subsidiarity
also has another facet: in order to be fully operative, subsidiarity requires that lower courts actually
apply human rights.
The principle of subsidiarity of human rights is well known at the international level. The
European Court of Human Rights (hereinafter ‘‘the ECtHR’’) has recently been a vocal
2. See Nicholas Aroney, ‘Subsidiarity in the Writings of Aristotle and Aquinas’ in Michelle Evans and Augusto Zim-
mermann (eds), Global Perspectives on Subsidiarity (Springer 2014). There are also other conceptions of subsidiarity
(see Andreas Føllesdal, ‘Subsidiarity and the Global Order’ in ibid 209). According to some authors, the origins of the
concept have little meaning in the context of human rights, and particularly the ECtHR, which gave the term its own
meaning (see Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Con-
vention on Human Rights (Nijhoff 2009) 241.
3. Michelle Evans and Augusto Zimmermann ‘The Global Relevance of Subsidiarity: An Overview’ in Global Per-
spectives on Subsidiarity, ibid 4. Elsewhere in their book they phrase it in this way: ‘‘Subsidiarity is primarily a de-
centralising principle, which aims to empower the individual by ensuring that decisions are made, and problems are
resolved, closest to where they arise.’’ (ibid 221)
4. Subsidiarity is also the foundation for a procedural rule (admissibility criterion) of exhaustion of prior effective remedies
before appealing to a higher court. This procedural facet of subsidiarity, though of course closely linked to its substantive
aspects, is not relevant to this article and will not be discussed.
70 Netherlands Quarterly of Human Rights 37(1)
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