Important decision
The Constitutional Court has rejected a proposal by the non-parliamentary Communist Party of Czechoslovakia (KSČ) to repeal a part of the Criminal Code that will explicitly allow the promotion of communism to be punished from 1 January 2026. The court did not consider the party’s motion at all – it rejected it for lack of active legitimacy, i.e. on the grounds that a political party cannot file such a motion.
The Communist Party of Czechoslovakia symbolically submitted the proposal on 17 November, describing the amendment as a discriminatory infringement on freedom of expression and political rights. In particular, it criticised the fact that the provision on the criminal offence of founding, supporting and promoting a movement aimed at suppressing human rights and freedoms would now explicitly name Nazi and communist movements. The wording, effective from 1 January 2026, provides for a penalty of up to five years in prison for “whoever establishes, supports or promotes Nazi, communist or other movements” of this type; the CPC proposed deleting the words “or” and “communist”. The amendment has long been rejected by the KSČM, which calls it purposive and discriminatory.
The Constitutional Court recalled that a motion to repeal a law or part of a law can only be filed by entities expressly permitted to do so by the Constitutional Court Act – typically the President of the Republic, a group of deputies or senators, or, under certain conditions, by courts and other entities defined by law. A political party is not one of them. For this reason, the CPC’s proposal “fell under the table” purely on procedural grounds, without the court making any comment on the actual constitutionality of the new regulation.
In practice, this means that abstract review of this amendment can only be opened through one of the constitutionally entitled petitioners – the political party itself does not trigger it by its submission. However, there is also a way of concrete (incidental) review of constitutionality: an individual may, together with his or her own constitutional complaint, submit a motion to annul the contested provision, but he or she must allege and prove that the final decision or other intervention of a public authority directly affected his or her subjective constitutionally guaranteed rights and that the contested norm was applied in his or her case. It is therefore likely that the amendment will be subject to further research and expert interpretation in the future.
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