scholarly journals On Constitutional Justice in Germany and Spain: The Foreign Experience

Russian judge ◽  
2020 ◽  
Vol 11 ◽  
pp. 43-45
Author(s):  
Alsu R. Garifullina ◽  
Keyword(s):  
Individual Characteristics ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
High Importance ◽  
Foreign Experience ◽  
Legal Structure ◽  
Constitutional Justice

The article deals with the organizational and legal structure of constitutional courts in Germany and Spain. The Constitutional Court of each of the considered European states has its own individual characteristics. The organizational and legal structure of the constitutional justice carried out in these states is distinguished by an internal specific organization and competencies assigned to both judges and the apparatus of constitutional courts, which allows us to speak of the high importance of the implementation of constitutional justice.

Doctrine “counter-limits” and doctrine “ultra vires” in the context of protection of national constitutional identity

2020 ◽  
Vol 10 (6) ◽  
pp. 98-105
Author(s):  
OLEG Belosludtsev ◽  
Keyword(s):  
Russian Federation ◽  
Theory And Practice ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Foreign Experience ◽  
Margin Of Appreciation ◽  
The Russian Federation ◽  
The Right ◽  
Constitutional Identity

The  article is  devoted to  the  study of  the  connection between the  doctrine of  constitutional identity with the  doctrine of “counter-limits” and the doctrine of “ultra vires”. All these concepts are applied in the practice of European constitutional courts in cases related to the resolution of conventionally constitutional conflicts. Since the doctrine of “constitutional identity” in domestic theory and practice is in its infancy, in the author’s opinion, it is necessary to take into account the foreign experience of protecting national constitutional identity. And also carefully consider all related concepts, such as the doctrine of counter-limits and the doctrine of “ultra vires”, paying special attention to the topic of their relationship. The author, analyzing the doctrine of “counter-limits” and the doctrine of “ultra vires”, comes to the conclusion that these doctrines, along with other instruments for protecting national constitutional identity (the doctrine of the margin of appreciation), can be used in relation to the dispute between the Constitutional Court of the Russian Federation and the ECHR on “the right of the last word”.

scholarly journals Judicial Review of Democracy. Maintenance of Democracy as a Functionalist Mission in the Jurisprudence of the Constitutional Court of Kosovo

Südosteuropa ◽  
2020 ◽  
Vol 68 (4) ◽  
pp. 530-553
Author(s):  
Enver Hasani
Keyword(s):  
Legal Theory ◽  
Case Law ◽  
Point Of View ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Contractual Relationship ◽  
Constitutional Justice ◽  
Constitutional Jurisprudence

AbstractUsing Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role of constitutional courts as agents for implementing a democratic project on behalf of the sovereign as the principal. It discusses that role primarily from the point of view of the court’s functional intervention in improving the behaviour of the three branches of government. The paper begins by unveiling the historical development of constitutional justice, with as its focus the concept of new constitutionalism and the European/Kelsenian model encountered in Kosovo. It discusses too the theories of delegation of power, the contractual relationship, and trust between sovereigns and constitutional adjudicators in the context of subjects connected with this article. To present scenarios where the court manifests itself as a negative legislator, a positive legislator, and as an influencer of attitudes, the article includes convincing illustrations from both legal theory and case-law.

The settlement of disputes of a constitutional nature: inside the Romanian Constitutional Court s rulings on the role and competences of the public authorities

2018 ◽  
pp. 51-70
Author(s):  
TUDOREL TOADER
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
The Subject ◽  
Constitutional Justice ◽  
Settlement Of Disputes

The separation and balance of State powers constitute the basis of the rule of law. Observance of this principle requires framing of public authorities within the limits of competence established by the Constitution and the law, as well as loyal cooperation between them. From this perspective, the attribution of the constitutional courts for settling legal disputes of a constitutional nature is an important tool for correcting the tendencies of violation of these limits, as well as for identifying solutions for situations that do not find an explicit regulation in the constitutional texts. The present study analyses the jurisprudence of the Constitutional Court of Romania in the field of legal disputes of a constitutional nature, revealing, together with the presentation of dispute situations, the vulnerabilities of the constitutional reference texts. It is also highlighted the role of the constitutional courts in the evolution of constitutional law institutions. The conclusion of the study, beyond the subject of legal disputes of a constitutional nature, bears on the necessity, even more so in this matter, of the certainty of jurisdictional interpretation. This certainty cannot be achieved as long as the interpretation is not authoritative; consequently, the assurance of the effectiveness of constitutional justice constitute a key issue of the rule of law.

Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems

ICL Journal ◽  
2021 ◽  
Vol 14 (4) ◽  
pp. 523-543
Author(s):  
Antoni Abat Ninet
Keyword(s):  
European Commission ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Third ◽  
Comparative Constitutional Law ◽  
Constitutional Justice ◽  
The Guardian

Abstract In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.

The Constitutional Court of The Republic of Latvia

2020 ◽  
pp. 505-564
Author(s):  
Ineta Ziemele ◽  
Alla Spale ◽  
Laila Jurcēna
Keyword(s):  
Rule Of Law ◽  
Legal Discourse ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
European Model ◽  
Constitutional Justice ◽  
The Republic

This chapter examines constitutional review in Latvia. When the Latvian Constitution—the Satversme—was adopted in 1922, the European model of constitutional courts existed, but the idea of establishing a constitutional court in Latvia was not discussed. The chapter traces the development of Latvian constitutional justice following the establishment of the Satversme, before providing a brief overview of both the institution of constitutional review as well as the constitutional court in Latvia. The Latvian Constitutional Court has played an important role in developing the legal order in accordance with the principles of rule of law and democracy and in educating the society in these values. Lastly, the chapter discusses the case law of the Constitutional Court as part of a wider European legal discourse.

Die Bedeutung der russischen Verfassungsreform des Jahres 2020 für die Verfassungsgerichtsbarkeit

2021 ◽  
Vol 67 (1) ◽  
pp. 27-40
Author(s):  
Ol’ga Krjažkova
Keyword(s):  
Case Law ◽  
Constitutional Reform ◽  
Political Regime ◽  
Special Focus ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Courts ◽  
Federal Constitutional ◽  
Constitutional Justice ◽  
The Russian Federation

The article analyzes the 2020 Russian constitutional reform with a special focus on constitutional justice. The author discusses the changes of the Constitution and the legislation on the Federal Constitutional Court and the Constitutional Courts of the constituent entities (subjects) of the Russian Federation. The analysis shows three main developments: First, the liquidation of the constitutional (charter) courts of the subjects of the Federation and their possible replacement by councils within legislative bodies. Secondly, changes of the organization of the Constitutional Court (the reduction of the number of its members, the decision that dissenting opinions of judges are no longer published), and of its relationship with other state bodies (increased dependence on the president and the Federation Council). Thirdly, the changes of the powers of the Constitutional Court (expansion of the powers and reduction of the capacity to consider complaints about violations of constitutional rights and freedoms of citizens). The analyses also looks on previous changes of the legal regulations in this area and the case law of these courts. The article shows that the changes were made gradually and are affected by the current Russian political regime. Lastly, it shows that the constitutional reform did not strengthen, but weakened the institutions of constitutional justice in Russia.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

scholarly journals A Populist Monster and the future of Constitutional Democracy

2021 ◽  
Vol 4 (1) ◽  
pp. 83-100
Author(s):  
Andraž Teršek
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Democracy ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Social ◽  
The Eu

Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.

The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo

2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani
Keyword(s):  
Material Culture ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Past ◽  
History Of ◽  
Communist Countries

Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.

scholarly journals The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

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