Přednostní jurisdikce Mezinárodního trestního tribunálu pro bývalou Jugoslávii v. český právní řád (K jednomu příkladu vnitrostátní realizace mezinárodních závazků ČR)

Although being an organ of application of law and not a law-making organ, the International Criminal Tribunal for the former Yougoslavia has contributed by its first decision on jurisdictional matters to the confirmation and enhancement of role of international humanitarian law. At the same time it became the first international criminal tribunal after the Nuremberg Tribunal. The decision of the Appeals Chamber (of 2 October 1995) in Tadic case gave a clear and firm answer to the question of legality of the Tribunal and its competence, including primacy over national courts. The problem has been resolved under international law. From the point of view of the implementation of the Statute and decisions of the Tribunal in Czech law, however, many legal issues seem to be open. Since the Statute of the Tribunal, adopted by the UN Security Council, is not an international treaty, the clause in § 375 of the Czech Code of Penal Procedure, providing for the priority application of international treaties, could not serve as a guidance for Czech courts. As the International Tribunal may request any Member State to extradite any person suspected of serious violations of international humanitarian law, the Czech Constitutional Court could perhaps decide, according to Art. 87 (1)(i) of the Constitution, on measures necessary to implement decisions of an international court binding for the Czech Republic. However, one should not rely on the remedy by the Constitutional Court, which is considered as subsidiary to the legislative initiative to be taken by the Government. Moreover, the Tribunal may not be recognized as “international court” under Art. 87, because it is not “international organ authorized to decide complaints against violations of human rights and fundamental freedoms” on the basis of the ratified and promulgated international treaties on human rights binding the Czech Republic (Law on Constitutional Court, § 117). The present situation, when the Czech authorities may either comply with internal law and violate thus the international obligation of the Czech Republic, or act in accordance with international law but in violation of the rules of Czech law, is undesirable. The appropriate solution seems to be a legislative and/or constitutional amendment.