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po-special-issue-2023-cervinek-t
The Necessity Test in the Practice of
the Czech Constitutional Court: Between the Devil of Judicial Activism and the
Deep Blue Sea of Judicial Resignation
JUDr. Zdeněk Červínek, Ph.D.,
an assistant professor at the Department of Constitutional Law, Faculty of Law,
Palacký University in Olomouc.
Právny obzor, 106, 2023,
special issue, pp. 41-65.
Published online: 20.2.2024
https://doi.org/10.31577/pravnyobzor.specialissue.2023.03
Abstract. The
proportionality analysis is the dominant method of constitutional review
throughout the world, and this is also the case in the Czech Republic, where its
application took hold not long after the re-establishment of the Constitutional
Court in the early 1990s. This paper analyses the Czech Constitutional Court’s
jurisprudential approach to one of the sub-tests of the proportionality analysis,
the necessity test. Building on comparative and theoretical foundations, the
text first presents the general theoretical background of the necessity test
before moving on to a summary of the variations of the abstract definition of
the necessity test and its content in the practice of the Czech Constitutional
Court. Subsequently, the application of the variants is compared and evaluated
using case-studies of individual cases ruled upon by the Czech Constitutional
Court. Finally, the paper concludes with a normative assessment of the variants
of the necessity test which paves the path for judicial practice to evade the
devil of judicial activism and the deep blue sea of judicial resignation, two
structural pathologies that threaten its practical application.
Keywords:
Proportionality Analysis; Necessity Test; Constitutional Review; Czech
Constitutional Court
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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OPEN ACCESS