Papers (English) by Zdeněk Kühn
Journal of Public Policy, 2010
Given far-reaching changes in the legal systems of East Central Europe since the mid-1990s, one m... more Given far-reaching changes in the legal systems of East Central Europe since the mid-1990s, one might expect administrative court judges to have modified the way in which they decide cases, in particular by embracing less formalistic adjudication strategies. Relying on an original dataset of over one thousand business-related cases from the Czech Republic, Hungary and Poland, this article shows that – despite some variation across countries and time – judges have largely failed to respond to the incentives contained in the new constitutional frameworks. They continue to adopt the most-locally-applicable-rule approach and are reluctant to apply general principles of law or to rely on Dworkinian ‘policies’ in deciding hard cases. The analysis links these weak institutional effects to the role of constitutional courts, case overload and educational legacies.
Papers by Zdeněk Kühn
Ius comparatum, 2019
Administrative courts at the onset of the new century face the challenge of ever-changing legisla... more Administrative courts at the onset of the new century face the challenge of ever-changing legislation. Frequent amendments do solve some gaps but create even more gaps which have to be filled by the courts. In the Czech Republic relative ease of judicial review by the courts of first instance and the wide open access to the Supreme Administrative Court mean that many administrative cases are resolved in four instances-two instances of administrative proceedings and additional two instances of judicial proceedings. All these things considered, it is not surprising that neither legal scholarship nor case law defines any general concept of judicial deference (or self-restraint) to the administration. Various areas of public law contain some expressions of judicial deference (most notably the limitation of judicial review of administrative discretion and subsidiarity of judicial review). Nevertheless, both case law and scholarship are far from subsuming these concepts under the common label of "judicial deference to the administration". This paper provides an in-depth analysis of the notion of judicial deference in the Czech Republic as well as some prospects in this field.
The Judiciary in Central and Eastern Europe
The book analyses the judicial culture in East Central Europe from the era of Stalinism up to the... more The book analyses the judicial culture in East Central Europe from the era of Stalinism up to the post-Communist period of the 1990s and 2000s. The book targets the judicial ideology and the conception of law, phenomena most resistant to change.
The Application of EU Law in the New Member States, 2010
This chapter reflects the first experience with the new legal order in the Czech Republic. It fir... more This chapter reflects the first experience with the new legal order in the Czech Republic. It firstly deals with the pre-accession phase and instances of the use of EU law in the Czech courts before the enlargement itself. Secondly, the post-accession case law of the Czech Constitutional Court is examined in order to identify any emerging constitutional doctrine vis-a-vis European Union law. Thirdly, day-to-day judicial application of EU law is discussed, together with the practice of administrative authorities. Fourthly, this chapter offers an overview of Czech references for preliminary ruling to the European Court of Justice and their domestic context. Finally, direct actions involving the Czech Republic as claimant (Article 230 EC) or as defendant (Article 226 EC) are examined against their domestic background and political context.
The Application of EU Law in the New Member States, 2010
The application of EU law in Slovakia following the accession in 2004 poses a series of intriguin... more The application of EU law in Slovakia following the accession in 2004 poses a series of intriguing questions. The perhaps most puzzling one lies in the comparison with its western neighbor - the Czech Republic. Why does the domestic application of EU law, its quantity as well as quality, differ in two countries, which, for about 80 years shared their legal history and most of the legal rules? Searching for some answers, this chapter firstly deals with the absence of argumentative use of EU law by Slovak courts prior to the fifth enlargement of the European Union. Secondly, the rather scarce post-accession constitutional case law is analyzed. Thirdly, the application of Community law in ordinary courts following the enlargement is assessed. Fourthly, the chapter offers an overview of the up-to-date Slovak references for the preliminary ruling within their national context. Finally, it outlines direct actions and infringements proceedings before the Court of First Instance and the European Court of Justice involving Slovakia or Slovak nationals/companies.
Ius Comparatum - Global Studies in Comparative Law, 2019
Administrative courts at the onset of the new century face the challenge of ever-changing legisla... more Administrative courts at the onset of the new century face the challenge of ever-changing legislation. Frequent amendments do solve some gaps but create even more gaps which have to be filled by the courts. In the Czech Republic relative ease of judicial review by the courts of first instance and the wide open access to the Supreme Administrative Court mean that many administrative cases are resolved in four instances-two instances of administrative proceedings and additional two instances of judicial proceedings. All these things considered, it is not surprising that neither legal scholarship nor case law defines any general concept of judicial deference (or self-restraint) to the administration. Various areas of public law contain some expressions of judicial deference (most notably the limitation of judicial review of administrative discretion and subsidiarity of judicial review). Nevertheless, both case law and scholarship are far from subsuming these concepts under the common label of "judicial deference to the administration". This paper provides an in-depth analysis of the notion of judicial deference in the Czech Republic as well as some prospects in this field.
Russian Law Journal
The success of the legal transitions occurring in the 1990s was quite dubious. Although, as a res... more The success of the legal transitions occurring in the 1990s was quite dubious. Although, as a result of enlargement of the EU, much of the “other Europe” became part of the European Union, it would be too simplistic to assume that, with the fall of the Berlin Wall, the region became part of Western European political and legal landscape. While the books of the old era were discarded, legislation repealed and new institutions created, one should not underestimate the continuing strength of the old values, principles and legal thought in general. After all, the authors of those discarded books remained in the academia, even if they seemingly started to produce – virtually overnight – new works, while defending new values and principles. Alongside with the academics, the entire legal personnel of the old era survived the systemic change, and this contributed to the persisting spirit of old legal culture. That is why the philosophies of the old socialist legal system were able, not only...
Časopis pro právní vědu a praxi, 2021
Tento text se zaměřuje na kapitolu knihy Domestic Judicial Treatment of European Court of Human R... more Tento text se zaměřuje na kapitolu knihy Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance (KOSAŘ, D. et al. Routledge, 2020) věnovanou používání judikatury Evropského soudu pro lidská práva Nejvyšším správním soudem. Článek poukazuje na další důležité aspekty, které ovlivňují používání judikatury ESLP českými vrcholnými soudy. Tyto aspekty vyniknou zejména při srovnání se situací v Maďarsku a Polsku. Článek dále kriticky komentuje judikaturu Ústavního soudu při posuzování souladu zákona a mezinárodní lidskoprávní normy. Konečně, autor nabízí své situované úvahy soudce Nejvyššího správního soudu k případům, kdy se vnitrostátní soud vymezí proti rozsudku Evropského soudu pro lidská práva.
Croatian Yearbook of European Law and Policy, 2018
Svět přelomu 20. a 21. stoleti je judicializovan; soudci rozhoduji i o otazkach dřive jim vzdalen... more Svět přelomu 20. a 21. stoleti je judicializovan; soudci rozhoduji i o otazkach dřive jim vzdalených. Hovoři se o globalni expanzi soudcovske moci. Evropský soudni dvůr (ESD) v Lucemburku vytvořil Evropska spolecenstvi tak jak je zname dnes: považuje se za nesporne, že nebýt expanzivnich rozhodnuti tohoto soudu v prvnich třech dekadach, EU by dnes vypadala zcela jinak a byla by jen jednou z mnoha organizaci tohoto typu. Domaci ustavni (popř. nejvyssi) soudy hraji v Německu, USA, Spanělsku, Italii, ve středni Evropě a v řadě dalsich zemi světa zasadni roli a jejich rozhodnuti se nevyhnutelně promitaji take v politice. Soudcovska moc tedy bezesporu hraje v celosvětovem srovnani roli, ktera nema historicky obdoby.
Περιμένοντας τους Bαρβάρους. Law in a Time of Constitutional Crisis., 2021
The paper describes the development of constitutional judiciary in the region of Central Europe, ... more The paper describes the development of constitutional judiciary in the region of Central Europe, facing the rise of illiberalism in this region. Constitutional courts and constitutional review are in conflict with illiberalism. Illiberal regimes do not favor constitutional review of legislation because they consider any such control an inappropriate limitation of democracy. In this view, democracy is based on the will of the people and therefore the people should not be constrained by any means, by any institution. It is not likely that constitutional courts will be abolished altogether in Central and Eastern Europe in the foreseeable future. The global rise of constitutional adjudication still controls the mainstream political rhetoric. Even authoritarian regimes do not want to be viewed as autocrats who are off the leash, unrestrained by any checks and balances. But the genuine importance of constitutional courts is nonetheless withering away. Some constitutional courts in the region are now politically loyal constitutional tribunals similar to those operated in the few countries which practiced constitutional review at socialist times prior to 1989 (Poland and Yugoslavia). Keywords Constitutional courts; Constitutional review; The rule of law; Illiberalism; Central Europe * This article was written with the support of the Czech Science Foundation (GA ČR) project reg. no. 19-10723S What unifies current law and what fragments it from the perspective of legal theory and judicial practice? The usual disclaimer applies.
In European societies of the early 21st century, the judicialisation of politics and society seem... more In European societies of the early 21st century, the judicialisation of politics and society seems to be ‘a partial aspect of societal evolution’. Politics has become deeply judicialised and the judiciary has become profoundly involved in issues which used to be the sole domain of ‘pure’ politics. Some talk of ‘the secular papacy’, ie the judiciary of the Modern West playing the role of the 12 century papacy of the Medieval Western World. Others criticise the rise of ‘juristocracy’ and the decline of popular politics.Thus, it is not surprising that the phenomenon of ‘New Constitutionalism’ started to infl uence the emerging constitutionalisation of the European Communities in the 1960s and 1970s. A specifi c regime of European ‘constitutional tolerance’ involves constitutional and methodological pluralism among the Union and its Members, including the plurality of views on what is, and whether there is any, Grundnorm of the legal system, or who is the fi nal arbiter of European Cons...
Rule of Law in the EU, 2021
Dosud jednoznacně nejvýznamnějsi novela ceske Ustavy vyhlasena pod c. 395/2001 Sb. (dale jen &qu... more Dosud jednoznacně nejvýznamnějsi novela ceske Ustavy vyhlasena pod c. 395/2001 Sb. (dale jen "Euronovela") nesporně přinesla interpretacni problemy. Předpokladalo se, že budou dřive nebo později vyřeseny obecnou justici a zejmena Ustavnim soudem. Ustavni soud se k Euronovele vyjadřil již několik týdnů pote, co nabyla ucinnosti (nalez plena Ustavniho soudu ze dne 25. cervna 2002, vyhlasený dne 6. zaři 2002 v castce 142 Sbirky zakonů pod cislem 403/2002 Sb.). Svým rozhodnutim vsak bohužel Ustavni soud žadný z avizovaných problemů nevyřesil, vyvolal jen dalsi otazniky nejen o významu Euronovely, ale o ustavnich limitech výkladu Ustavy vůbec.
Recenze publikace - Markku Kiikeri: Comparative Legal Reasoning and European Law Dordrecht/Boston... more Recenze publikace - Markku Kiikeri: Comparative Legal Reasoning and European Law Dordrecht/Boston/London: Kluwer Academie Publishers 2001
German Law Journal, 2021
The Article deals with the actual functioning of the judicial power and the limits of its indepen... more The Article deals with the actual functioning of the judicial power and the limits of its independence facing an illiberal or authoritarian state. The Article offers a skeptical analysis of the past and especially of the judiciary’s future in Central Europe, with a primary focus on Czechia and Slovakia. After a brief excursion into the times before the installment of communist regimes in the late 1940s, attention shifts to the development of the judiciary during the three decades after the fall of communist rule. In this context, the Article deals with different models of administration of the judiciary and shows how they can function in normal democracy and under the conditions of emerging authoritarianism. It also characterizes different perspectives on the judiciary in common law and continental law and posits different capacities of judges to resist authoritarians in various legal cultures. Finally, it sketches future prospects and attempts to define the typology of judiciary mo...
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The Czech Constitution of 1992, associated with the revolutionary fervour of the 1989 Velvet Revo... more The Czech Constitution of 1992, associated with the revolutionary fervour of the 1989 Velvet Revolution, attempted to annihilate the Communist, totalitarian heritage. According to the judgments of the Constitutional Court (CCC), this meant that the rule of law in a constitutional state has not only a formal but also a substantive side, expressing the fundamental, inviolable values of a democratic society. There was a break from an approach that had seen the judiciary as a submissive and unthinking instrument of enforcement. In relation to EU law, several measures have been subject to constitutional challenges, including domestic acts implementing the European Arrest Warrant, the Data Retention Directive, and EU sugar quotas. The Czech Constitutional Court, which has a strong position, has underlined its EU-friendly approach. At the same time, for exceptional, flagrant cases, the CCC has retained the constitutional limits based on the democratic, rule-of-law-based state (unamendable provision under Art. 9(2) of the Constitution) and the protection of fundamental rights. Notably, in Landtová, the CCC declared an ECJ judgment ultra vires. In general, the reasoning of the CCC often follows that of the German Constitutional Court. In the practice of the ordinary courts, it emerges from the report that the Czech courts have adopted a rights-protective approach and carry out judicial review, including in European Arrest Warrant cases and other mutual recognition cases. The EU amendments in the Constitution are considered brief but sufficient.
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Papers (English) by Zdeněk Kühn
Papers by Zdeněk Kühn