Social Rights and the Turkish Constitutional Court

Through a brief examination of the Turkish experience, this article endeavors to illuminate the debate on the role of constitutional courts in interpreting social rights. The Turkish Constitutional Court has in many cases rejected applications for the annulment of legislation related to social rights, on the grounds that it is within the legislature’s discretion to determine public policy priorities based on economic resources and economic stability. This article suggests the Turkish Constitutional Court has narrowly interpreted constitutionally recognized social rights within the boundaries of the Turkish Constitution, with the notable exception of labor rights in individual applications.

Socio-Economic Origins of Constitutional Review in Central Asia: Political Economy and Politico-Historical Context as Defining Factors

This article pursues two main objectives. First, to identify the main factors behind the establishment of constitutional review in Central Asia. Second, to define how those factors have shaped the institutional design of constitutional courts. In doing so, this article revisits standard theories of comparative constitutional law in terms of the origin of judicial review. While the insurance theory dominates the present global discourse on judicial review, it cannot completely and accurately account for the origin of constitutional review in Central Asia. Rather, this article conveys that the main impetus and motivation behind the establishment of constitutional courts and their institutional designs has been the economic interests of Central Asian states, determined by the region’s political and historical context.

From the pandemic to the recovery: a legal analysi

The Covid pandemic has raised various legal issues, fueling the scientific debate on the relationship between fundamental rights and freedoms in the global emergency context. Moreover, a case law has started developing within the different jurisdictions. Additionally, constitutional Courts, in different countries, have ruled over potential conflicts of interest among central powers and local ones, and even some decisa of the Court of Justice of the European Union have started “blossoming” in this area. Against the backdrop of this analysis, the paper discusses the main legal problems sparked off by the declaration of the state of emergency, with a focus on the main EU jurisdictions and with glimpses of non-EU countries. The aim of this is to discuss the balance between fundamental rights and liberties in decisa in different legal systems, as well as the interpretation given to principles of proportionality of the public health measures, adequacy, precaution and loyal collaboration and the relationship between freedom and limits to public power. Bearing this in mind, the purpose of the work is to demonstrate that, first and foremost, in Europe there is room for both a formal and a substantial recognition of common rights and liberties in terms of interpretation and application of constitutional traditions, shared by the different Member States. The relevant adherence to these principles is guaranteed by the European Court of Justice. Second, the recovery after the pandemic is an open challenge. An important opportunity for Europe and its Member States is materialising, and this is to take a step forward on the bumpy path toward a European Political Union capable of strengthening a structure weakened by several earthquakes. A path and a project still plenty of pitfalls that needs to regroup around a central core increasing unification among European peoples (art. 1 TEU), which has never meant to be an alternative to national identity. Received: 24.11.2021Accepted: 13.12.2021

Judicial diplomacy of the German Federal Constitutional Court: bilateral court meetings as a novel data source to assess transnational communication of constitutional courts

Judicial diplomacy describes the courts’ efforts to promote liberal democracy and protect their institutional authority. Bilateral court meetings are essential for judicial diplomacy, encompassing jurisprudential (e.g., discussion of case law) and aims of strategic (e.g., maximising influence). This study presents a novel approach to assess such meetings. It analyses the German Federal Constitutional Court meeting reports between 1998–2019, using content and semantic network analysis. The content analysis shows that court meetings focus on jurisprudential aspects; however, strategic considerations also play a role in discussions with interlocutors from emerging democracies. These findings are substantiated by the semantic network analysis, which discloses that recent case law, Europeanisation, and globalisation are the main issues discussed. Hence, this study presents an analysis of a novel data source. Further, it contributes to judicial politics research as transnational court meetings could be a missing link to understand legal citation networks.

Constitutional Jurisdictions Between the Supremacy of the Constitution and the Primacy of European Union Law

The interaction between the national constitutional jurisdictions of the Member States and the Court of Justice of the European Union raises questions that often cannot be answered unequivocally. The focus of this debate is, of course, on the fundamental question of whether European Union law takes primacy over national constitutions. This study presents the jurisprudence of the Court of Justice on the establishment of the principle of autonomy of EU law in relation to the internal law of the Member States in its development, since it is precisely the positions it adopts that allow the Court of Justice to derive the principle of primacy over ‘any provision of internal law’ as a logical and natural consequence of the unique nature of EU law. On the other hand, since this integration activity of the Court of Justice is not the result of a conscious activity of the Member States, legitimated by their constitutions, the inevitable question arises of whether the results of the activity in question do not clash with the main task of the constitutional courts ‒ to ensure a coherent and uniform application of the law within the national legal order and above all in accordance with the constitution. The case law of the constitutional courts of the Member States presented in this study leads to the conclusion that they regard autonomy as a relative characteristic, which is why they reject the principle of absolute primacy of European Union law over constitutional rules. It seems that no constitutional court could abdicate its role as a court of ‘last word’ in this respect.

Control of the Constitutionality of European Union Law by Means of Constitutional Complaints

The subject of this article is the institution of the constitutional complaint, which is analysed in connection with European integration. It should be noted that Poland’s membership of the European Union has had a great influence, not only on the system of national law, but also on the jurisprudence of the Polish Constitutional Tribunal; therefore considerations are carried out here mainly in relation to the Constitutional Tribunal. In examining the issue of the constitutional complaint, the following assumptions may be stated. First, the constitutional-complaint procedure, is in fact, the examination of the compliance of legal norms with the Constitution, any deviation being related to the entities initiating proceedings before the Constitutional Tribunal, Article 191(1)(6), of the Constitution[1], and to the material scope of the complaint, as determined in Article 79 of the Constitution. Second, there is no doubt that the constitutional complaint can become an important legal instrument shaping the jurisprudence of the Polish Constitutional Tribunal, which has to face constitutional issues related to European integration[2]. Following the example of the practice of other Member States, e.g. Germany, the Tribunal may use the institution of the constitutional complaint as a means of controlling the compliance of the secondary law of the European Union with the Constitution of the Republic of Poland. [1] The Constitution of the Republic of Poland, Journal of 2 April 1997, Journal of Law 1997, No. 78, item 483, as amended. [2] The literature on the subject indicates that the membership of nation States of the European Union obliges constitutional courts to act in the field of integration. Their task is to set the boundaries and conditions for the integration process. Jurisprudence in this area is referred to as acquis constitutionnel. Cf. Aleksandra Kustra, “Model skargi konstytucyjnej jako czynnik kształtujący orzecznictwo sądów konstytucyjnych w sprawach związanych z członkostwem państwa w Unii Europejskiej,” Państwo i Prawo, no. 3 (2015): 35.

Right to Water and Courts in Brazil: How Do Brazilian Courts Rule When They Frame Water as a Right?

The international protection given to the right to water has increased over the last decades, with two United Nations’ resolutions establishing a freestanding right to water in 2010. Several countries have a right to water enshrined in their constitutions, while in other countries, this right has been recognised by the courts. This study aims to assess whether and how Brazilian courts are deciding water-related conflicts using the “right to water” frame, what the content given to this right is, and whose rights are protected. We created a comprehensive database of decisions issued by Brazilian courts at different levels containing the expression “right to water”. Our main findings are that the great majority of decisions are from lower courts and were issued on individual cases related to water supply. Further, we have seen that courts are frequently prohibiting the disconnection of water supply services when extreme vulnerability is argued. The same has been seen in other Latin American countries, such as Argentina, Colombia, and Costa Rica, with the one main difference that in these countries, the right to water has been carved out by the Constitutional Courts. The Brazilian Federal Supreme Court, which has the last word on the interpretation of the constitution, has not issued any decisions establishing a right to water, but there is legal mobilisation aiming for this and using UN resolutions as a key argument.

Declaring a law unconstitutional through the legislative gap: the practice of the Constitutional Court of Ukraine

The paper draws attention to the changes that have taken place due to the second constitutional reform in Ukraine. The changes changed the organization and activities of the Constitutional Court of Ukraine, the procedure for consideration of cases by the Court, decision-making and the powers of the Court. Attention is drawn to the topical question of whether the Court can declare its decision unconstitutional because of a gap in it, why human rights and freedoms are violated, because, as we know, the law can be violated not because of activities but also inaction. The main decisions of the Constitutional Court of Ukraine in any given issue are analyzed. It is stated that the position of the Court is outdated, as a result of which human rights and freedoms are violated. Practice shows that in Western countries, a minority are constitutional courts that do not review legislative gaps for constitutionality. The paper notes that the review of constitutional gaps may be introduced into the practice of the Constitutional Court in the near future. The conclusion emphasizes that by declaring the gaps unconstitutional, the Court is in fact forcing the parliament to break the deadlock and take certain actions to resolve the gap in the legislation, thus improving the quality of the Ukrainian legislation.

Law and Medicine: the Influence of Fundamental Rights on the Corona-crisis and the Influence of the Corona-crisis on Fundamental Rights in the EU

The article deals with the intersection of law and medicine, especially in the time of the Corona-crisis. It analyses restrictions of human/fundamental rights in the time of the Corona-crisis at the EU level. Conditions for restrictions of fundamental rights are provided by Article 52(1) of the EU Charter of Fundamental Rights. The case-law of the Court of Justice of the EU concerning the restrictions of fundamental rights in connection with health protection is also analysed. The last part provides an overview of some decisions of constitutional courts of EU Member States concerning the justifications of restrictions of fundamental rights during the Corona-crisis.