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Constitutional Act No. 23/1991 Coll., that introduces THE CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS as a Constitutional Act of the Federal Assembly of the Czech and Slovak Federal Republic

The Constitutional Act No. 23/1991 Coll. was adopted on 9 January 1991. The Charter of Fundamental Rights and Freedoms (hereinafter “the Charter”) and the introductory Constitutional Act came into effect by their promulgation on 8 February 1991.

Even though most of the citizens did not realize it at the time of its adoption, the Charter constitutes the most important law adopted by the Czechoslovak constituent assembly in reaction to the transition from the totalitarian regime to a democratic one (new Czechoslovak Federal Constitution was never adopted due to the national and jurisdictional disputes between the Czech and Slovak political representation that amounted into the dissolution of Czechoslovakia). The Charter consists of six chapters. Chapter one contains general provisions that enshrine, among others, freedom and equality in dignity and rights and also inherence, inalienability, imprescriptibility and irrevocability of fundamental rights and freedoms, prohibition of discrimination and limits of fundamental rights. Chapter two is dedicated to fundamental rights and freedoms and political rights. Chapter three enshrines rights of national and ethnic minorities. Chapter four includes economic, social and cultural rights. Chapter five encompasses the right to a fair trial. Chapter six named “general provisions” contains rather unsystematically incoherent provisions as the right to asylum, common restrictive clause on social rights and distinctions as to which fundamental rights are enjoyed by aliens. The Constitutional Act No. 23/1991 Coll. also includes an introductive text of interpretative and technical nature (see below) that is followed by the text of Charter itself.

The Charter constitutes the cornerstone of efforts on the way of the Czech and Slovak Federal Republic (and later both of its successor states) to the democratic system of rule of law. Immediately after its adoption, the charter became the basis for decision-making of all public authorities in relation to individuals in the Czech and Slovak Federal Republic and it was also one of the conditions of admission of the Czech and Slovak Federal Republic and later both successor states to the Council of Europe and later also important evidence of efforts for accession to the European Union in a sense of the Copenhagen criteria. That is how the Charter fulfilled one of its main goals - “the return to Europe.”

The Charter is based on the conception of natural law (the state guarantees and enshrines fundamental rights and freedoms but does not create them). When drawing up the Charter, the main sources of inspiration were the international conventions on human rights, particularly the European Convention on Human Rights, also the Universal Declaration of Human Rights and to a lesser extent also the constitutions of other countries and philosophical sources (Greek philosophy, Christianity, the theory of natural law, separation of powers, the theory of substantive conception of the rule of law or the conception of social state). In this context it is necessary to note that the European Convention on Human Rights and the Charter differ in many aspects. Not only that the catalogue of rights protected by the Charter is longer (economic, social and cultural rights, right to asylum, rights of national and ethnic minorities) but also the number of legitimate aims justifying restrictions to political rights is lower and the number of unqualified rights (without its own restrictive clause) is greater and there is a number of other differences.

Especially the absence of a general restrictive clause and, on the other hand, the enshrinement of the common restrictive clause of social rights are specific and distinctive traits of the Charter. In times of its adoptions the Charter enjoyed in fact supraconstitutional power and became sort of a superconstitutional law. It is so due to § 1 section 1 of the introductory Act No. 23/1991 Coll., which stated that “constitutional acts, other acts and other legal regulations, its interpretation and its use must be consistent with the Charter of Fundamental Rights and Freedoms” (emphasis added). The introductory law also contained the “cleansing clause” that stated that any laws and other legal regulations that were not after 31 December 1991 consistent with the Charter of Fundamental Rights and Freedoms became ineffective (§ 6 section 1 of the introductory Constitutional Act No. 23/1991 Coll.). The aim of such elegant move was to eliminate all provisions incompatible with the new democratic regime.

The adoption of the Charter was very complicated, especially due to disagreements between the Czech and Slovak representation on the wording of the Charter. That is why each republic produced on 22 November 1990 its own draft. The Federal Assembly did not want to exacerbate the conflict and that is why it had to draft its own, third, version. It was also the Federal Assembly who decided to introduce the Charter by the introductory Act that made it superconstitutional law. The most controversial was the question of the protection of the human life before birth contained in art. 6 section 1 of the Charter and the wording of the art. 24 and art. 25 of the Charter (the rights of the national and ethnic minorities), in this area the Hungarian deputies produced its proposals. In the end, the Charter was successfully adopted in the wording of five amendments on 9 January 1991.

At the time of its adoption the Charter also had important federative aspect. According to its original conception, the Charter was supposed to represent the federalwide standard of human rights that was to be developed in republic constitutions and adapted to its (mainly national) conditions or left without changes (see § 4 section 1 of the introductory Act No. 23/1991 Coll.). Therefore the Charter only constituted the minimal standard of the protection of human rights. Given the dissolution of the federation by 1 January 1993 this provision of the introductory Act became obsolete.

After the dissolution of the federation the fate of the Charter differed in each country. The Slovak Republic incorporated the Charter with appropriate adjustments into its Constitution (the Constitution of the Slovak republic published under No. 460/1992 Coll.). The Czech Republic left the Charter unchanged after extensive debates (though without the introductory Act) as a separate document and made it a part of a broader term of “constitutional order” (see art. 112 section 1 of the Constitution of the Czech republic) through a reference in the art. 3 of the Constitution of the Czech Republic. The Charter was published in the Journal of Laws as a Decision No. 2/1993 Coll. (and not as a constitutional act), that is why the correct citation of the Charter is as follows: “The Charter of Fundamental Rights and Freedoms promulgated by the decision of the Presidency of the Czech National Council No. 2/1993 Coll. as a part of the constitutional order of the Czech Republic.” This clumsy solution still causes a number of interpretative problems.