Subsidiarity of Human Rights in Practice: The relationship between the Constitutional Court and Lower Courts in Czechia

The principle of subsidiarity is viewed as the cornerstone of the protection of human rights. Internationally, it is primarily the responsibility of states to ensure that human rights are respected and protected on a domestic level and any international protection mechanism is only supplementary. At the domestic level, apex courts in a country also provide only subsidiary protection of human rights, which must first and foremost be protected by lower level courts. Subsidiarity has two facets: the obligation of lower courts to directly apply human rights and the corresponding deference of higher courts to that application. Little attention has been given so far to how domestic subsidiarity of human rights works in practice and how human rights are in fact applied by the primary level of court systems. This article uses Czechia as a case study to test the hypothesis that if lower courts apply human rights, then there is a lower chance that the Constitutional Court, as an apex court, will find a human rights violation in that particular case. By statistical analysis of hundreds of decisions of Czech courts this hypothesis is confirmed. The findings are indicative that subsidiarity actually works in practice