Jaromír Fronc
Author’s affiliation: Faculty of Law, Charles University in Prague

Diffuse judicial review, marginal incompatibility, and legal certainty

Jurisprudence 2/2022 Section: Articles Page: 10-21

Keywords: Diffuse judicial review, marginal incompatibility and legal certainty

Abstract: We can find both concentrated and diffuse models of judicial review in Czech law; there are also borderline situations where both models can be conceivably activated. The main advantage of the diffuse review is operative resolution of the norm conflict in an individual case and, accordingly, the expeditious protection of the parties’ rights. On the other hand, legal certainty is regarded to be the principal advantage of the concentrated review in the continental legal system. The article tries to relativise this notion, mostly for the event of partial or marginal incompatibility where the diffuse review is less invasive in terms of legal stability. Especially in these cases, it is therefore thinkable, for example, that ordinary courts apply an international treaty concerning human rights. Finally, the article argues in favour of wider judicial discretion regarding the selection of the model of review.