Post-Revolutionary Europe?

2018 ◽  
Vol 64 (4) ◽  
pp. 561-569
Author(s):  
Pavel Rychetský
Keyword(s):  
Rule Of Law ◽  
Current Situation ◽  
European Countries ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
East European ◽  
European Thought

The crisis of the rule of law is a threat rather than a real and present danger. The rule of law has many facets and it is firmly rooted in European thought. The current situation in Central and East European countries is, rather, an erosion of their system of values. Constitutional courts, which are the safeguards of basic values of each state, must therefore face pressure from inside their respective nations, which weakens their independence, along with pressure from outside their countries, which narrows the scope of their power.

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.

scholarly journals Constitutionalizing the act of justice in the European Union

2020 ◽  
pp. 47-63
Author(s):  
MARIETA SAFTA
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Public ◽  
Necessary Being ◽  
National Courts ◽  
Constructive Dialogue

This study addresses a component of the constitutionalization process at the Union level, namely the act of justice, considering its importance for the evolution of the constitutionalization process. The significance and importance of the constitutionalization of the act of justice are analyzed, as well as the premises and mechanisms of the constitutionalization of the act of justice in the European Union, with particular reference to the jurisprudence of the Romanian Constitutional Court. In this context, the control of constitutionality appears as a decisive modeling factor of the normative action of the legislator and even of the public policies. The constructive dialogue – if we refer to the two legal orders, national and supranational – is all the more necessary, being noticeable the key role played by national courts – and in particular constitutional courts – in defending the rule of law in the European Union, including through their collaboration with the CJEU in cases and through the instruments provided for in the Constitutions and the Treaties.

A Tale about Poland – Introduction to the Situation in Poland

2018 ◽  
Vol 64 (4) ◽  
pp. 600-606
Author(s):  
Peter Oliver Loew
Keyword(s):  
Rule Of Law ◽  
Current Situation ◽  
Cultural Discourse ◽  
The Political ◽  
Liberal Politics ◽  
The Rule Of Law ◽  
The Government ◽  
Insight Into ◽  
The Eu

This article provides an in-depth insight into the “Polish peculiarities” that substantially continue to affect the current situation in the country - a country where the rule of law is in danger, where politics and society are dramatically divided, and where images of existent or invented enemies seem to dominate the political and cultural discourse. The article concludes that many questions remain open regarding the respect for the rule of law. The “tale of Poland” is not yet finished: there are several possible scenarios for Poland, ranging from progressing radicalization, to maneuvering of the government in order to satisfy the EU as well as the domestic national-Catholics, to the destruction of the government camp and the return of a majority of the electorate towards pro-European, liberal politics.

Corruption and Tax Evasion in Croatia

2014 ◽  
Vol 6 (2) ◽  
pp. 141-165
Author(s):  
Predrag Bejaković
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Tax Evasion ◽  
Political Support ◽  
The Rule Of Law ◽  
East European ◽  
The Social ◽  
The Republic ◽  
The Government ◽  
Run Up

South-East European countries continue to suffer from wide-spread and deeply rooted corruption. This article is concerned with the social and economic sources of corruption and disrespect for the rule of law in the Republic of Croatia (rc), with particular attention being paid to tax evasion. Although the government of the rc has expressed a determination to undertake measures against corruption and tax evasion, it faces criticism that the fight against these social evils is not being given sufficient political support and respect. While it is clear that in the run up to joining the eu the rc has enacted different laws and institutions targeted towards the reduction of corruption; a serious problem remains in the low level of law enforcement. Croatia’s ineffective legal system and a lack of transparency have consequently presented significant challenges to investors. Moreover, the fight against corruption is often hampered by an inefficient public administration and a lack of intra-governmental coordination.

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

ICL Journal ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Catalina Torres-Artunduaga ◽  
Santiago García-Jaramillo
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Constitutional Courts ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
The Rule Of Law ◽  
Dialogic Approach ◽  
The Subject ◽  
Conceptual Foundations

AbstractThe increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

scholarly journals Constitutional court procedure and constitutional control in the field of lustration

2021 ◽  
pp. 99-115
Author(s):  
Oksana Shcherbanyuk
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Judicial Control ◽  
European Court ◽  
Long Time ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The article considers the constitutional court procedure and constitutional control in the field of lustration.  These issues are considered through the prism of the rule of law, its understanding by the Constitutional Court of Ukraine in its practice.  It is emphasized that the application of the principle of publicity and the requirements of increased publicity is due to the importance of cases heard by constitutional courts, as well as the results of judicial activity. Along with this, the issue of long-term consideration by the Constitutional Court of Ukraine of the law determining lustration is analyzed in detail. The study is updated by the fact that the European Court of Human Rights on the complaints of citizens of Ukraine found a violation of the right of the lustrated to a fair trial due to excessive time of national trials for their release.  It is concluded that the Law on Lustration should serve its most important function in establishing the rule of law in the country. In legal science there is a situation when the views of scholars on the essence of judicial procedure are contradictory, which gives rise to different understandings of this legal phenomenon by representatives of different scientific schools.  For a long time, the problem of judicial procedure was inextricably linked with the consideration of the category of the process, the essential idea of which significantly influenced the understanding of the limits of the procedure in law. The constitutional Court as the only organ of the constitutional-judicial control may be seen as a special (organized on a state basis), the carrier of the intellectual potential of theories of constitutional law.

Local Elections in Independent Ukraine: The Case Study of Nikolayev*

2004 ◽  
Vol 32 (3) ◽  
pp. 551-563
Author(s):  
Olena Yatsunska
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Political System ◽  
Current Situation ◽  
The Political ◽  
Local Elections ◽  
The Rule Of Law

In the current situation of societal modernization and transformation of the political system of Ukraine, one of the most important problems facing the country is the formation of a system of local self-government that can act effectively. If this institution is not developed and strengthened, there can be no discussion of the establishment of democratic, social government, of the development of the rule of law, or of an expansion of the infrastructure of civil society.

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