Introduction
It would not be the first time that a seemingly dull case ends up opening an unexpected door and shakes the current status quo. The case Suverénní Řád Maltézských Rytířů – České Velkopřevorství v The Czech Republic is a textbook example of that. Beneath the surface of redressing decades-old restitution injustices, the European Court of Human Rights (the Court) shifted its approach to consistency of the case law, recalibrated the threshold for the Court’s intervention, and opened the way for claims to a right to a grand chamber before domestic apex courts. Moreover, by overlooking the specific role of constitutional courts, the judgment touches upon the core architecture of subsidiarity and the premise that the Court is not the next (fourth) instance.
In the judgment, the Court held that the fourth chamber of the Czech Constitutional Court had breached the principle of legal certainty by disregarding a newly established line of its own case law on the matter under consideration. By failing to refer the case to the plenary session, the chamber had not ensured consistency of practice among the different chambers of the Czech Constitutional Court, therefore a violation of Article 6 of the Convention was found.Footnote 1
This finding carries systemic implications and raises questions that extend far beyond the Czech context. What kind of consistency in case law does the Court require? Can consistency, as such, serve as a ground of review? And more generally: how does the Court account for the distinct role of constitutional courts within national constitutional orders? And where are the limits of the subsidiarity principle?
We will argue that the Court judgment implicitly adopts a maximalist understanding of consistency in case law. If followed, this approach opens almost unlimited possibilities for the Strasbourg Court to intervene in the domestic courts’ decision-making under the guise of ensuring consistency. Paradoxically, the Court is inconsistent with its own established case law on Article 6 of the Convention. By placing the Court’s judgment in a broader context, we will show why strict requirements to justify departures from case law are problematic for specialised constitutional courts, which aim to manage their caseload effectively.
Facts of the case
The applicant, Suverénní řád maltézských rytířů – České velkopřevorství, an ecclesiastical legal person and part of the Roman Catholic Church, sought restitution of land under the Church Property Settlement Act (Law No. 428/2012). The land had been confiscated after World War II pursuant to Presidential Decree No. 12/1945 and was subsequently subject to proceedings under Law No. 142/1947 on the Revision of the First Land Reform.
In 2019, the Bruntál District Court ruled in favour of the applicant, holding that the confiscation had been completed within the temporal scope of restitution laws (after 25 February 1948). The Ostrava Regional Court, however, overturned that decision, finding that the property had been taken under the Presidential Decree and that the confiscation had thus taken effect ex lege already in 1945. The Supreme Court upheld this reasoning, referring to its settled case law according to which confiscations under the Decree were effective upon its entry into force.
At the heart of the dispute lay a question whether the decisive moment for confiscation (and thus for the restitution) was the formal adoption of the confiscation measure (that is, the issuance of the Decree), or rather the effective completion of the confiscation process, including administrative implementation. The applicant argued for the latter interpretation, claiming that the property had not been effectively taken until after 1948. Relying on recent judgments of the Czech Constitutional Court that had adopted this approach, the applicant lodged a constitutional complaint.
The Czech Constitutional Court, however, dismissed it as manifestly ill-founded.Footnote 2 It held that the ordinary courts had assessed the conditions for the confiscation of the applicant’s property in a constitutionally conforming manner, and it expressly referred to the reasoning of the Supreme Court, which it found thorough and convincing. The Czech Constitutional Court reaffirmed that the legal basis for confiscation was the Decree itself, while any subsequent administrative acts had only a declaratory character. In doing so, the it explicitly referred to its earlier plenary opinion (Pl. ÚS-st. 21/05) – a unifying judgment on this matter. The Czech Constitutional Court did not apply to the present case the newly established line of case law that had created exceptions to the plenary opinion from 2005.
Judgment of the Court of 11 September 2025
The Court’s finding required two levels of reasoning. At the abstract level, the Court recognised that the right to a fair trial encompasses the protection of the principle of legal certainty and that this principle is particularly reflected in the requirement of consistency in domestic case law.
At the concrete level, the Court substantiated the violation of the right to a fair trial on three grounds. First, the fourth chamber of the Czech Constitutional Court ruled contrary to the newly established development of that court’s case law. Second, the fourth chamber did not explain why it did not take this new case law into account. Third, the fourth chamber failed to use the appropriate mechanism provided by law to overcome the divergences in the case law. Let us elaborate on these three reasons in detail.
Although the Court reiterated that the Convention does not oblige states to provide redress for injustices pre-dating their ratification of the Convention, once a state decides to legislate for restitution, such legislation must be applied clearly and coherently to avoid legal uncertainty.Footnote 3 According to the Court, the present case reflected the evolution of the Czech Constitutional Court’s case law concerning the effects of confiscations under the 1945 Presidential Decrees and the 1947 Land Reform Act.Footnote 4 While the long-standing position, confirmed by the 2005 plenary opinion, was that confiscations under the Decrees had taken effect ex lege and were therefore excluded from restitution, in 2021 the first and second chambers of the Czech Constitutional Court developed some exceptions based on specific circumstances involving instances where there had been concurring confiscations under the Presidential Decrees and subsequent deprivations of property under Law No. 142/1947.Footnote 5
The Court held that the new strand of case law (establishing exceptions from the plenary opinion) ought to have been applied to the applicant’s case. The Court noted that the applicant’s case was pending while this new line of case law was being developed. Yet, the fourth chamber of the Czech Constitutional Court, ruling on the applicant’s complaint, did not address the new line of case law or explain why it chose not to follow it. Nor did it refer the issue to the plenary session under section 23 of the Constitutional Court Act, which provides a mechanism to ensure consistency of case law across chambers.Footnote 6
Accordingly, the Court found that the principle of legal certainty had been violated and the applicant was deprived of a fair hearing enshrined in Article 6(1) of the Convention.Footnote 7
Commentary
We argue that, while preaching consistency, the Court diverged from its own established jurisprudence, which adopted a cautious approach to discrepancies in domestic case law and, in general, accepted the minimal reasoning by the apex courts when dismissing extraordinary appeals. The Court’s deferential approach aligned with the rather minimalist understanding of consistency in the literature and with the role of apex courts within the judicial hierarchy.
Below, we explain our argument in detail. First, we situate the issue of inconsistency within the literature. Second, we show how the jurisprudence of the Court has reflected these scholarly theories. Third, we criticise that in the case at hand, the Court departed from this approach. Fourth, by zooming out, we shed light on the trickiness of the requirement to explain the deviation from the previous case law in the context of centralised constitutional courts.
Consistency of the case law as a separate ground for review?
The notion of consistency of case law is far from self-evident and it is thus necessary to distinguish between its competing conceptions. This step is not a mere theoretical detour; it clarifies what standard of consistency the Court can meaningfully apply when reviewing domestic adjudication under Article 6. Only then we can assess what consistency in case law truly demands according to the Convention – if anything at all.
The ideal of consistency – that like cases will be decided alike regardless of who decides them – has its roots in the very concept of equality before the law and legal certainty.Footnote 8 It encompasses a range of distinct ideas, from equality of outcomes to the long-term stability of case law. The more ambitiously it is defined, the less attainable consistency becomes. It is possible to distinguish three main approaches in the literature.
From one perspective, consistency can be conceived very broadly. A strand of literature understands consistency as a freestanding requirement of maximal unity in judicial outcomes – an idea related to Dworkin’s theory of law as integrity or one right answer.Footnote 9 Under this conception, consistency manifests as equality of results: like cases should be decided alike.Footnote 10 Proponents of this approach often link this type of consistency to behavioural and institutional dynamics of judging.Footnote 11 For example, Fjelstul defines consistency as ‘the degree to which the disposition of a case would change if it were decided by a different chamber of judges’.Footnote 12 Ultimately, those who adopt this broad, empirically oriented conception of consistency strive towards an unattainable ideal. Their efforts are not even aimed at achieving perfect consistency, but rather at developing means of approximating it.
Second, if perfect equality of outcomes is unattainable, perhaps judicial consistency must be understood more modestly: it arises only where two rules set by case law are in a direct logical conflict (they are contradictory), not where their application in the case at hand leads to different outcomes.Footnote 13 For MacCormick, consistency in case law is satisfied by non-contradiction: ‘a set of propositions is mutually consistent if each can, without contradiction, be asserted in conjunction with every other and with their conjunction’.Footnote 14 Inconsistency therefore concerns the concurrent existence of two conflicting rules. In this sense, the elementary function of consistency arises – it ensures that the rules form a predictable system capable of providing guidance, as required by the very nature of the rule of law.Footnote 15
A third way in which consistency may be understood is expressed through adherence to the established case law.Footnote 16 The court acts inconsistently if it openly decides to change its established case law and thereby treats someone differently from others in the past. Therefore, in this sense, consistency as an element of legal equality means that departures from established case law must be properly justified. However, proponents of this understanding argue that the binding force of a court’s own prior decisions does not amount to a legal obligation but rather works as a presumptive reason.Footnote 17 The requirement of consistency in this sense does not entail slavish adherence to precedent, not even in the face of long-standing practice.Footnote 18 It is a consideration that judges must make and that, in cases of doubt, should incline them towards following precedent.Footnote 19
It goes beyond the scope of this article to offer an exhaustive account of consistency and to argue that any one of the competing conceptions outlined above represents the single correct understanding of the concept. However, the choice of the approach must be responsive to institutional context and analytical purpose. What matters for the Court review is not absolute uniformity in judicial outcomes, but the preservation of legal certainty, equality, and other rule-of-law subprinciples protected at the individual level by the right to a fair trial. For this reason, in the context of the European Court of Human Rights, a minimalist, systemic understanding of consistency should apply. It aligns with MacCormick’s conception of non-contradiction: case law is consistent insofar as it does not generate mutually incompatible normative guidance capable of undermining the legal certainty and predictability.
The institutional context of the Court is examined in detail in the following section. However, before delving into that, we want to stress that this minimalist understanding of consistency is based on the following premises.
First, in the adjudicatory practice, consistency has no value in itself; it has only instrumental value as it protects several rule-of-law subprinciples, namely legal certainty and equality. Pursuing consistency for its own sake is eventually unrealistic and normatively empty.Footnote 20 The fact that a decision is consistent does not mean it is right and fair. A certain degree of inconsistency – or at least the appearance of inconsistency – is always present in adjudication. That holds particularly in constitutional adjudication, which the Court most frequently reviews.Footnote 21 Many alleged inconsistencies in constitutional case law are in fact nothing more than variations in the balancing of competing principles based on the factual circumstances of the case.Footnote 22
Any belief in consistency for its own sake is thus a ‘foolish’ one.Footnote 23 Determining whether a court acts consistently means determining whether two cases are alike or similar enough – something that is a foundational element of judicial reasoning itself, not a distinct doctrinal question.Footnote 24 In this logic, Hart observed that the principle of consistency – understood as ‘like case should be decided alike’ – is ultimately empty, because the criteria of ‘likeness’ of the cases at hand will always depend on the particular circumstances and can never be fully captured by a general rule.Footnote 25
Subsequently, consistency in itself cannot serve as a separate ground of review, particularly by the Court. As Foran observes, such calls arise from confusion about the true nature of the principle of legal equality and legal certainty.Footnote 26 Only inconsistencies of sufficient gravity, amounting to a breach of legal certainty or other rule-of-law sub-principles, can constitute a ground of review.
The distinction between various approaches towards consistency is crucial considering the benchmark they represent. Our minimalist, systemic understanding of consistency provides the operative benchmark for the following analysis. Under this benchmark, inconsistency becomes relevant only where divergences are sufficiently serious and they persist over time so as to undermine rule-of-law sub-principles, namely legal certainty and equality.
Consistency of the case law as an aspect of Article 6 of the Convention
The minimalist understanding of (in)consistency in the case law is also mirrored in the landmark judgments of the Court. The Court constantly reiterates that it is not a court of the next (fourth) instance.Footnote 27 This stance has become even more pronounced in recent years – a period often described in the literature as one of procedural turn, subsidiarity, and judicial avoidance, since the Court has been facing growing challenges to its own authority.Footnote 28
In this light, the Court held that, although the principle of legal certainty must be protected as it is ‘implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law’,Footnote 29 it does not ‘confer an acquired right to consistency of case law’.Footnote 30 The possibility of conflicting judicial decisions is an inherent feature of any judicial system, and such discrepancies may even occur within a single court. This, in itself, cannot be regarded as contrary to the Convention.Footnote 31
The ground of the Court’s review thus far is not a consistency of case law as such but the principle of legal certainty. In cases involving inconsistent domestic case law, the Court’s concern has traditionally been less about protecting individual applicants and more about safeguarding all those subject to the law. Violations were not found merely because an applicant received the less favourable of the two competing interpretations (because like cases were not to be treated alike), but because serious divergences in the case law persisted and the relevant mechanisms – if any existed in the domestic legal systems – had failed to resolve them.
In other words, the Court assesses whether the inconsistency interferes with the legal certainty in such an intensive way that it is not justifiable in the light of the right to a fair trial under Article 6. This reflects a minimal, systemic understanding of inconsistency – one that threatens legal certainty and undermines public confidence in the judiciary as a whole.Footnote 32 Indeed, in the context of constitutional courts, this argument might carry particular weight, as the highest judicial authorities in a country should not themselves become a source of legal uncertainty, thereby undermining the principle of legal certainty and weakening public confidence in the judicial system. Although ensuring internal consistency in constitutional adjudication is inherently challenging, in cases of manifest and profound divergence, it is precisely these constitutional courts whose credibility and authority are most at risk and the most needed.
Accordingly, the Grand Chamber set out three criteria for determining when divergences in the case law of domestic courts amount to a violation of Article 6 of the Convention:
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1. whether profound and long-standing differences exist in the case law of the domestic courts;
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2. whether domestic law provides a mechanism for resolving such inconsistencies; and
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3. whether that mechanism has been applied and, if so, with what effect.Footnote 33
As to the first criterion, the Court has stressed that both elements – profundity and duration of inconsistency – are cumulative. Where divergences are profound but not long-standing, they will not infringe the principle of legal certainty.Footnote 34 As regards the element of profundity, it is naturally difficult to establish any predictable scale of what qualifies as a ‘profound’ inconsistency and what does not. Nevertheless, the very emphasis on profundity indicates that, under the Court’s case law, not every inconsistency should be treated as a violation of the Convention; rather, the Court assesses the intensity of the divergence before finding a breach.
In assessing the ‘long-standing’ aspect, the Court usually takes into account, among others, the timeframe during which divergence in the case law has lasted and the number of opportunities that the domestic courts have been given to express their view on the relevant issue during that period.Footnote 35 Even though the circumstances of each case significantly differ and it is impossible to discern a one-size-fits-all approach, the Court, until now, has only recognised long-term inconsistencies in cases where conflicting judgments have been handed down over a period of several years.Footnote 36
Regarding the second and third criteria, the Court has generally found no violation where domestic mechanisms for resolving conflicting case law operated promptly and effectively, thereby eliminating such inconsistencies within a short time.Footnote 37 The very existence of these criteria additionally reflects the Court’s systemic understanding of inconsistency outlined above. The Court does not seek to resolve internal inconsistencies in place of domestic courts – it does not assume responsibility for determining which of two parallel, conflicting lines of case law is correct. Rather, its role is limited to verifying whether appropriate mechanisms for addressing such inconsistencies exist within the domestic legal system and whether those mechanisms have been duly applied. The widespread mechanism to remedy inconsistencies, which emerged within one apex court, is the activation of the grand chamber. These court formations, which have a larger number of judges than other formations and carry a higher authority and legitimacy compared to smaller chambers, act as coordinating bodies for addressing divergences among individual chambers and by issuing decisions binding upon them.Footnote 38 By this, they are able to improve the doctrinal quality of case law, which is a crucial factor underpinning the apex court’s authority.Footnote 39
To sum up, the Court’s established case law has adhered to a minimalist understanding of consistency. For the Court to intervene, divergences had to be both profound and long-standing – that is, situations in which domestic case law, over an extended period of time, articulated mutually incompatible positions – effectively affirming both A and non-A. Moreover, the Court has not limited its assessment to the mere existence of such inconsistencies. It has also examined their gravity and whether and how domestic courts have sought to address and resolve them. The Court has not engaged in reviewing the mere consistency of outcomes in individual cases, i.e. whether two cases should have been decided alike. The Court’s case law on the consistency of domestic courts has therefore always rested on the idea that the Court provides rather a form of guidance for maintaining consistency, aimed at safeguarding public confidence in the apex courts.
The (in)consistency within the present case
At first sight, the reasoning of the Court in the present case may seem restrained: the Court appears as if it indeed does not review the substance of the domestic courts’ judgments, but merely the ‘existence of inconsistency’. However, even though the judgment formally invites the Constitutional Court only to resolve its internal inconsistencies, the consequences in this case reach much further.
First of all, we argue that the Court did not follow the Grand Chamber’s established criteria for assessing inconsistencies in domestic case law. Although it took into account the existence of a procedural mechanism intended to address divergences, it failed to engage with the first and most important criterion – the existence of profound and long-standing inconsistencies. The omission in assessment is striking, as this point had been explicitly raised by the Government in its submissions.Footnote 40
Moreover, not only did the Court ignore the ‘profound and long-standing differences assessment’, but it simultaneously explicitly admitted that the fourth chamber of the Czech Constitutional Court in the present case disregarded ‘the newly established development of the constitutional case law’. To us, the newly established development seems to be in stark contrast to the presence of the long-standing differences, as required by the Grand Chamber.
The Court identified a discrepancy between the decision of the fourth chamber from November 2021 and two earlier judgments – II. ÚS 1920/20 (January 2021) and I. ÚS 1975/20 (March 2021).Footnote 41 At the time the fourth chamber delivered its decision, however, the discrepancy within the case law had existed for ‘only’ a few months. It was, in truth, a newly established development rather than a long-standing divergence. To sum up, not only did the Court fail to address the long-standing condition, but, in our view, that criterion was not even met.
Moreover, serious doubts arise as to whether the ‘profundity criterion’ (i.e. the depth and gravity of inconsistency) is met. To us, the nature of the fourth chamber’s decision under review cannot be overlooked. The Czech Constitutional Court issues two types of rulings: judgments (nálezy) and decisions in the narrow sense (usnesení). In addition, the plenary session may adopt opinions (stanoviska) if the mechanism for overcoming inconsistencies is triggered.Footnote 42 Pursuant to the Czech Constitutional Court’s interpretation of Article 89(2) of the Czech Constitution, only judgments (nálezy) are binding erga omnes and only these judgments establish the threshold for activation of the mechanism designed to overcome divergences the Court referred to. The quasi-substantive decisions (usnesení) have little or even no precedential effect.Footnote 43 By them, the Czech Constitutional Court merely affirms that rulings of ordinary courts do not raise any concerns about unconstitutionality.
One would submit that real ‘profound’ inconsistency can emerge only between judgments (and not between decisions). On the one hand, we do not formally argue that no inconsistencies can arise between decisions and judgments. The line between a decision that dismisses complaints as manifestly ill-founded and a judgment that rejects the complaint on the merits is blurred. Judgments rejecting the complaints are very rare, and the ‘quasi-substantive’ decisions often include extensive substantive considerations. The chambers prefer to ‘say no’ to applicants in decisions rather than judgments for it is significantly less time-consuming.Footnote 44
On the other hand, however, it is necessary – when assessing the depth of divergences in the case law – not to overlook that a decision (usnesení) does not establish any binding legal opinion with precedential effect (according to the Czech Constitutional Court established jurisprudence). The profundity of inconsistency between a decision and judgments carries less weight, especially when compared to situations where the Czech Constitutional Court contradicts itself across multiple judgments (not even plenary judgments), which are, strictly speaking, the only binding rulings that have a precedential effect.
Furthermore, as several dissenting opinions suggest, there was even an open question within the Czech Constitutional Court itself as to whether this new line of judgments – regarded by the Court as applicable – was consistent with the 2005 plenary opinion.Footnote 45 By finding that the fourth chamber was inconsistent with this ‘newly established’ line of case law, the Court in fact took a stance on whether that new case law was itself consistent with the earlier plenary opinion. This is crucial, since if it were not, then the decision under review may in fact have been consistent with the long-standing plenary case law. This is another reason why even the profoundness of the inconsistency was far from clear.
Nonetheless, even if we accept that the divergence was profound, the two conditions of the first criterion are, as mentioned, cumulative. The absence of one of the conditions means that legal certainty is not violated. Moreover, as we have shown, the Court did not address these criteria at all. As the Court did not take into account the relevant case law of its Grand Chamber, it seems that it reproached the Czech Constitutional Court for disregarding case law while doing precisely that itself.
This aspect of the judgment is particularly concerning and poses the greatest risk should the Court choose to build upon it in the future. Under the Court’s earlier case law, inconsistency could amount to a violation of Article 6 only where it was profound and long-standing, reflecting a structural divergence within domestic jurisprudence. In the present judgment, however, the Court has stepped beyond that, and it now appears to treat any inconsistency as incompatible with the Convention, when the other two criteria (the absence and/or inappropriate use of mechanisms for overcoming inconsistencies) are met.
This also raises concerns regarding the principle of subsidiarity – the cornerstone of the Strasbourg system of fundamental rights protection.Footnote 46 By failing to examine whether the divergence in question amounted to a long-standing and profound inconsistency within the domestic case law, the Court’s reasoning necessarily turned on merely determining whether the case ought to have been decided in accordance with the newly established line of case law or with the earlier, general rule stemming from the Czech Constitutional Court’s unifying plenary opinion. In essence, the reasoning collapses into a simple claim: the Czech Constitutional Court should have decided differently. However, simply asserting that the domestic court should have decided differently by applying certain case law does not fully reflect the principle of subsidiarity. In our view, the Court did not apply a test of ‘inconsistency violating legal certainty’, but rather a test of consistency, thereby shifting its focus from the systemic protection of the legal certainty to the mere consistency of outcomes. Such a yardstick throws the doors of Strasbourg wide open.
That said, we do not argue that the reviewed decision of the Czech Constitutional Court was necessarily correct. The question is different: even if the decision was wrong, is it for the Court to correct it under the guise of inconsistency if no other breach of the Convention has been found?
We believe that such a maximalist conception of consistency cannot serve as a separate ground of review, since it does not correspond to any right (or even unwritten principle) protected by the Convention. Under the Court’s own case law, only inconsistencies of sufficient depth and duration – those that create a systemic risk to legal certainty – may reach the threshold of a Convention violation. The present case did not meet that standard, and the Court did not even attempt to explain why it would. This is precisely the risk identified and illustrated theoretically above in this case note: the danger that the Court may begin to treat any form of inconsistency, however marginal or context-dependent, as a violation of the Convention.
Finally, another indication that the Court understands consistency inconsistently with its own case law can be found in the very principles it relies on in the judgment under discussion. In paragraph 71, for example, the Court emphasised that ‘case law development is not, in itself, contrary to the proper administration of justice, since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement’. Yet this understanding of consistency is misplaced in the present case. It does not concern consistency in the sense of adherence to established case law, as discussed in the theoretical section (in which case, the question of case law development would be relevant). As we explained, by issuing a decision (usnesení), which strictly speaking does not contain any binding legal opinion, the fourth chamber of the Czech Constitutional Court did not explicitly overrule an earlier legal opinion – thus there was no case law development.
This brings us to the next section, where we show how the Court’s approach to assessing the consistency of domestic case law fails to account for the distinct role constitutional courts play in handling constitutional complaints.
Inconsistent approach towards reasoning of apex courts
Although the alleged divergence in the case law did not meet the first criterion set out by the Grand Chamber, and the case should have stopped at this point, the Court examined the existence and use of the mechanism for overcoming these inconsistencies. Here, it laid down quite strict requirements for the reasoning of rulings that deviate from the previous case law, including the justification for why the tool for overcoming inconsistencies had not been triggered. This requirement stands out in the context of apex courts, which are generally not under a strict duty to justify their decisions.Footnote 47
Given this, a brief context of the Czech Constitutional Court’s role is in order: the Czech Constitutional Court is a centralised constitutional court with the power to both constitutionally review laws and hear individual constitutional complaints. Constitutional complaints constitute the majority of the docket (around 95%). The Czech Constitutional Court sits either in a full court (so-called plenary session, which serves as the grand chamber) or in four chambers composed of three justices.Footnote 48 Constitutional complaints are predominantly decided in one of the four chambers, unless it is one of the exceptional matters that are dealt with by the plenary session by law (including matters ad hoc attracted by the plenary) or that are submitted to the plenary session by the chamber itself. This happens for two main reasons: (1) it is an issue of major significance that has not yet been addressed (a recent example is the climate lawsuit); or (2) the chamber comes to a legal opinion that diverges from another opinion of the Czech Constitutional Court expressed in its judgment (nález).Footnote 49 Regarding the latter, the plenary session may adopt an opinion by which it unifies the discrepancies in the chambers’ case law. The latter option is also the mechanism the Court referred to in the case at hand. As Kühn pointed out, the system, where the vast majority of complaints are decided in three-membered chambers, yields many inconsistencies within the case law.Footnote 50
The Czech Constitutional Court technically has no power to select its cases. The docket is mandatory, and there is no formal discretionary docket control.Footnote 51 However, the overwhelming number of constitutional complaints has compelled the Czech Constitutional Court to develop ‘an implicit discretionary docket control’ by selection of cases to be examined on their merits. Therefore, approximately 95% of cases are dismissed as ‘manifestly ill-founded’, which means that the Czech Constitutional Court does not review the case in detail. These ‘quasi-substantive’ decisionsFootnote 52 provide a brief (usually 3–5 pages) reasoning of why the case did not raise any constitutional issue, although, since 2013, the Czech Constitutional Court has had the power to dismiss manifestly ill-founded complaints without reasoning.Footnote 53 Pursuant to section 43(3) of the Act on the Constitutional Court, ‘the decision dismissing the complaint … must be … briefly justified by stating the legal ground on which the complaint is dismissed’. In other words, the Czech Constitutional Court provides reasoning that goes beyond what is strictly required by law.
In recent years, the Czech Constitutional Court has faced criticism that it churns out hundreds of judgments about issues that lack ‘the constitutional dimension’ and there are calls for limiting the docket and focusing on important constitutional issues. The proponents of this criticism call for using the possibility to dismiss manifestly ill-founded decisions without reasoning.Footnote 54 That aligns with the endeavour of the transformation of several European supreme courts from courts of appeals to a prospective court that clarifies and develops law for the future.Footnote 55
Nevertheless, the Strasbourg Court in general accepts the very brief or even no reasoning of an apex court, when it simply applies a specific legal provision to dismiss an appeal on points of law as having no prospects of success. It is sufficient to simply refer to the legal provision authorising such dismissal. This conclusion assumes that there had been a prior detailed judgment on the issues and/or a hearing before a lower court. If a state decides to allow parties to proceedings to appeal to the apex court, it enjoys a wide margin of appreciation in determining the conditions for the admissibility of such an appeal and in conducting proceedings on it.Footnote 56
Backed by this rationale, the Court previously found that no – or very brief – reasoning of the supreme courts of Greece, Hungary, and Finland, the French Conseil d’État, and the UK House of Lords’ committee is in line with Article 6. Even more importantly, the Court has accepted the practice of the German Federal Constitutional Court, which – like its Czech counterpart – may dismiss manifestly ill-founded complaints without providing reasons.Footnote 57
At the same time, though, the Court requires that even a constitutional court with a specialised jurisdiction must provide reasons why it departed from one of its previous judgments.Footnote 58 In this environment, it appears safer to keep the cards close to Czech Constitutional Court’s chest and dismiss the constitutional complaint without reasoning (if the domestic law allows that) rather than to provide reasons that will not be found sufficient by the Court.
In the instant case, the fourth chamber of the Czech Constitutional Court did provide a reasoning. It noted that, regarding the disputed legal issue at hand, there is no need to deviate from the 2005 opinion of the plenary session. The fourth chamber did not further address the argument of the applicants that the legal opinion the ordinary courts adopted diverges from the opinion of the Czech Constitutional Court expressed in the judgments II. ÚS 1920/20 and I. ÚS 1975/20. The fourth chamber concluded that the legal opinion of ordinary courts is in line with the 2005 plenary opinion and did not find it necessary to refer the case to the plenary session again.
Again, we do not say that the reasoning of the fourth chamber is sufficient or not. However, in the environment where the Court accepts that apex courts may filter the docket by dismissing complaints without reasoning, quite strict requirements for sufficient justification of departure from the newly established case law seem confusing. The Court opens the door for the right to a grand chamber claim before the Court and puts the Court into the role of the fourth-instance procedural court.
Conclusion
The judgment Suverénní Řád Maltézských Rytířů is a textbook example of how the pursuit of doing justice in an individual case can tip the balance at the systemic level. What looked like a dry, technical case turned out to be fuel for the litigation over national courts ignoring their own past case law.
In this case note, we have showed that the Court departed from the previous approach towards inconsistency of case law; the approach that was set by the Grand Chamber and was in line with the prevailing theoretical approaches in the scholarship. So far, the Court has required that the divergences within the case entail a violation of the principle of legal certainty as an aspect of Article 6, only when ‘profound and long-standing differences’ are present and a mechanism for overcoming these differences is missing or is not applied or applied inappropriately. Put differently, not every discrepancy, but only a qualified inconsistency within the case law has been recognised as a violation of the legal certainty of individuals. That goes hand in hand with the literature that does not consider the pure consistency as a value in itself, but rather as a vehicle for satisfying legal certainty and procedural equality of individuals.
In the present case, however, the Court did not follow these criteria. Although we explain that arguably both and at least one of the cumulative conditions – profundity and longevity – were not met, the Court disregarded these criteria. Moreover, it found a violation even though it explicitly stated that the case law, from which the deciding fourth senate was supposed to deviate in the instant case, was newly established.
Further, by situating the judgment of the Court in the broader context, we illuminated why the strict requirements for justification of deviating from the case law are problematic when it comes to specialised constitutional courts, which strive to regulate their docket.
That said, we want to stress that we do not deny the value of consistency in case law, nor do we dispute that, in certain circumstances, inconsistency may amount to a breach of the principle of legal certainty and Article 6 of the Convention. However, such inconsistency must be of a certain quality: its recognition depends on specific criteria previously outlined in the Court’s own jurisprudence – criteria that the Court has overlooked in the case at hand. Instead of assessing the significance of the inconsistency it identified, the Court reduced its reasoning to a simple equation: ‘insufficiently explained inconsistency equals a violation of the Convention’. This calls into question the subsidiarity principle and opens the door to virtually unlimited litigation claiming a ‘right to a grand chamber’ of the respective apex court.
Taking this judgment seriously, it is difficult to predict in what situations the Court will decide to interfere under the banner of ensuring consistency. This leads – paradoxically – to more legal uncertainty. We cannot but conclude that in the present case, the Court condemned judicial inconsistency by setting a new example of its own inconsistency.
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