Constitutional Court Case Law Research Articles

National constitutional courts’ use of the ECJ's precedents: The case study of Czechia

This article interrogates how Member States’ constitutional courts make use of the case-law of the European Court of Justice. Instead of focusing on the extreme instances of open backlash, we put forward a data-driven methodological approach to the study of Europeanization of national constitutional courts. Drawing on the use of automatic text analysis, we suggest that searching for the formal citations of the rulings of the European Court of Justice in the constitutional courts’ case-law contributes to nuanced understanding of their role within the EU. By means of a case study of the Czech Constitutional Court's case-law (more than 71 000 decisions issued between the years 2004 and 2022), we demonstrate a way to explore the so far under-researched area of EU law adjudication where the majority of strategic behaviour might be taking place.

THE RIGHT TO ABORTION AND THE POSSIBLE EFFECTS OF THE DOBBS DECISION ON CONTEMPORARY LEGAL TRENDS

As a remarkably delicate issue, termination of pregnancy remains even today, in the second decade of the 21st century, firmly in the public eye. Nevertheless, in terms of legal regulation of abortion, over the last 50 years, we have witnessed continuous liberalization of abortion legislation. This contemporary trend of liberalization has been manifested mainly in Europe, in which most countries have legalized abortion on demand in the second half of the 20th century while constitutional courts of a number of European countries have upheld the constitutionality of such liberalized laws. However, in the aftermath of the United States Supreme Court ruling from 24 June 2022 in the Dobbs case, whereby it overturned constitutional protection of the right to abortion, essentially delegating abortion-related regulation to federal states, the question arose of (im)possible effects of this decision on said contemporary legal trends on the global, European and national levels. With that in mind, this paper aims to analyze comparative legal solutions and recent constitutional court case law of individual states, as well as the jurisprudence of the European Court of Human Rights, in order to assess possible changes in contemporary legal trends regarding termination of pregnancy.

The parliamentary margin of movement for strengthening the role of historical dimensions in interpretation and law-making: The case of Hungary

AbstractWhen the historical dimension of the Hungarian public law is assessed, usually the analysis of the constitutional court case law is highlighted; however the Parliament might have an equally important weight. Article R) of the Fundamental Law provides two crucial references to the historical constitution: the clause of paragraph (3) which mentions the achievements of the historical constitution, and paragraph (4) which imposes the duty on all bodies of the Hungarian state to protect the constitutional identity of Hungary laid down in 22/2016. (XII. 5.) ruling of the Hungarian Constitutional Court. These two provisions are also binding for the Parliament to take into account the historical development of the current legal system during all of its legislative activities. In our view, this duty is more extensive than the examination of certain historical laws; the whole historical development of a legal field should be considered as regard the content of laws; the circumstances of their enactment, their special meaning during each historical period. In our contribution, those already known examples are enumerated, when the Hungarian Parliament relied explicitly on the achievements of the historical constitution, and how broad is the parliamentary space of manoeuvre in this regard. Our focus is to identify such alternative legal instruments, which could strengthen the role of historical arguments in the parliamentary practice. Certain elements of the legislative process will be considered (committee meetings; impact assessment of laws, the potential second chamber), while certain components of the laws will be also assessed (preambles, reasonings of laws, parliamentary resolutions).

СИНЕРГЕТИКА ПЕРЕХОДНОГО КРИЗИСА И ФЕНОМЕН МАЛОЙ КОНСТИТУЦИИ В ПЕРИОД РАСПАДА СССР / SYNERGY OF THE TRANSITIONAL CRISIS AND THE PHENOMENON OF THE “SMALL CONSTITUTION” IN THE PERIOD OF THE COLLAPSE OF THE USSR

In this work, the author examines the main prerequisites for the development of the political and legal crisis during the collapse of the USSR, identifies and analyzes the general patterns of state and legal development of law in the transitional period in the post-Soviet space, and in particular, the features of the struggle of the old and new legal orders. The purpose of the work is to identify the axiological significance of the preconstitutional attitudes of the transition period in the process of building independent statehood in the post-Soviet republics, the constitutional identity of which is expressed in declarations of independence, as fundamental political-legal acts of state-forming significance. The author assigns a special role to the declarations of independence of the post-Soviet republics, presenting them as "small Constitutions" of the transitional period, and also assessing their place and role in the system of sources of constitutional law in the light of their doctrinal characteristics, as well as in the light of case law of constitutional courts of some post-Soviet states. The author, besides classical methods, also used such methods of scientific knowledge as comparative-legal and historical-legal methods.

The right to privacy in the decriminalisation of psilocybin mushrooms in South Africa

This article assesses the right to privacy as a ground for challenging the constitutionality of the criminalisation of psilocybin mushrooms. In doing so, it discusses the right to privacy as found in section 14 of the Constitution of the Republic of South Africa, 1996 (Constitution). Drawing on Constitutional Court case law, the article argues that the right to privacy is a fundamental right that deserves paramount protection, even in instances where individuals engage in illicit activities within the confines of their personal realm of privacy. Accordingly, the prohibiting laws, notably the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Act 101 of 1965, do prima facie limit an individual's right to privacy, and therefore an analysis in terms of section 36 of the Constitution is necessary. A section-36 limitations analysis is accordingly presented, through which it is concluded that the nature and importance of the limited right outweighs the importance and purpose of the criminalisation. This paper argues that the current articles of legislation, which criminalise psilocybin mushrooms, are not justifiable, in that they unjustifiably limit the right to privacy. As such, the criminalisation of psilocybin mushrooms falls short of the standards implemented in section 36 of the Constitution and is concluded to be unconstitutional. Keywords: privacy; psilocybin mushrooms; constitutionality; limitations analysis; constitutional interpretation; drug law reform.

‘Shaming’ the Court: Ukraine’s Constitutional Court and the Politics of Constitutional Law in the Post-Euromaidan Era

Abstract Since the Euromaidan events of 2014, Ukraine has embarked on a reformist trajectory to ‘Europeanize’ the country and deliver the promise of good governance to its citizens. The series of legislative and public policy reforms that followed had financial and ideological support from Ukraine’s Western partners. To date, studies have focused on documenting and analyzing the course of international donors’ involvement in Ukraine’s reforms. What is lacking, however, is an analysis of the many different domestic responses to external pressure from donors to implement reforms. Examining Ukraine’s Constitutional Court case law on judicial self-government and anti-corruption from 2020, this article examines this court’s legal response to the politics of reform led by international donors and domestic actors in Ukraine. It reveals the problematic nature of constitutional decision-making in a country that has recently been facing considerable pressure from political incumbents and civil society. The article identifies a pattern that characterizes the political process (a ‘troubled nexus’) around the reforms in Ukraine and draws a parallel between Ukrainian developments and the situation in Moldova and Georgia, two countries that have been confronted with similar reform challenges since the enactment of the respective Association Agreements with the EU in 2016.

Constitutional identity, a new legal Babel in Europe

AbstractConstitutional identity appears as an increasingly frequent argument in the case law of constitutional courts in Europe. For many authors, it is a way to initiate dialogue with the European Union on equal terms. In this article, we argue that dialogue is not always a source of harmony, because the terms of the interaction are not exactly the same in Luxembourg and in the member states of the European Union. The Court of Justice of the European Union interprets the national identity of the member states in a way that is not always similar to the content given by the States to their constitutional identity. As a consequence, constitutional identity may allow the Member States to strengthen the specificity of their constitutional rules and, in turn, weaken the unity of European constitutionalism. Far from being an Esperanto, constitutional identity rather appears as the new legal Babel in Europe.

Kontekst jest wszystkim. O trudnej sztuce komparatystyki „europejskiego” orzecznictwa sądów konstytucyjnych

Context is Everything. On the Difficult Art of “European” Comparative Studies Jurisprudence of Constitutional Courts Comparative research of the case-law of constitutional courts concerning the membership of a given state in the EU (referred to in the article as “European” case-law of constitutional courts) requires taking into account various contexts in which this case-law is involved. The aim of this article is to indicate and analyze the most important of them, namely: the systemic context, the temporal context, the political context (including related problem of the politicization of the constitutional court), and the theoretical context. Moreover, the article draws attention to the necessity to contextualize “constitutional borrowings”, which acquires special meaning in connection with the perceived phenomenon of abuse of the “comparative argument”. Sometimes the distinguished contexts overlap, for example in the case of the temporal context and political context, but their separation allows for a better understanding of the complexity of comparative research on the European acquis constitutionnel. The specificity of this subject of legal-comparative research proves the correctness of the thesis that the contemporary constitutional comparative law must face several challenges. The first is the integration of the classical “horizontal” comparative method with the “vertical” dimension related to the influence of international and supranational norms on national constitutional systems. The second challenge is related to supporting an interdisciplinary approach to comparative constitutional law, which will take into account the perspective of social sciences, such as political science, sociology or history. The third challenge, then, is related to establishing the right balance between focusing on specific (not only) legal issues related to the analyzed issue and taking into account a broader vision of the directions of changes in European constitutionalism. The fourth challenge, in turn, concerns the popularization of the results of scientific research related to comparative studies of the “European” acquis constitutionnel. The last (and perhaps the most difficult) challenge facing the comparative research of “European” case law of constitutional courts is an attempt to answer the question to what extent this diverse jurisprudence conglomerate is a manifestation of the stability of constitutional law and the constitution, and to what extent it is a driving force for dynamic changes in contemporary public law.

Contributions to the interpretation of the concept of autonomy in the light of the model change in Hungary

The notion of university autonomy is a principle that is often invoked in higher education discourse, despite the fact that its precise content needs clarification. Although there is a rich domestic and international literature on the autonomy of higher education over the historical period, the principles set out therein cannot provide the necessary starting point, since the concept of autonomy varies from one historical period to another and cannot be regulated definitively. Due to the model changes in Hungary, the concept of autonomy has come to the fore again, so it is necessary to examine what is generally understood by the concept in the Hungarian literature and to what extent it is in line with international terminology. To this end, this study reviews the domestic constitutional court case law on the concept of autonomy and its changes, and then discusses the international standards of university autonomy, as defined by the European University Association, its components and the aspects of international comparative studies. It then discusses the position of Hungarian higher education institutions among European universities and, points to possible changes.

Self-executable remedies of the Convention on International Interests in Mobile Equipment in the light of Chilean constitutional court case law on due process guarantees

Abstract The purpose of this work is to analyze whether the Constitutional Court decisions on due process as applied to the realization of security interests may hinder an eventual ratification of the Cape Town Convention and its protocols.

Proportionality or Rationality in Socio-Economic Rights Adjudication? Case Study of the Czech Constitutional Court’s Judgment in Compulsory Vaccination Case

Proportionality represents the basic methodological approach towards constitutional rights adjudication. The million-dollar question raised in current doctrinal work is the question of its limits. One such limit concerns the applicability of the doctrine to socioeconomic rights. Since the doctrine and case law of constitutional courts do not provide clear answers in this regard, the main goal of this paper is to assess whether proportionality is a suitable method to review interferences with socio-economic rights. First, the paper discusses the theoretical aspects of this issue, primarily the paradigmatic structure of constitutional review. Second, the paper continues with a case study of the Czech Constitutional Court. In order to review interferences of these rights, the Constitutional Court applies the rationality test. The abstract definition of the test implies only means-ends analysis. Notwithstanding this, it represents an open-ended standard akin to proportionality. The paper concludes by assessing whether there are differences between these two standards of review of reasonableness.

The PSPP Judgment of the Bundesverfassungsgericht and the Slovenian Constitutional System

The BVerfG’s judgment on the PSPP marks another important part of the EU constitutional mosaic. It was the first time that the court declared an EU act ultra vires. Intense academic commentary ensued, mostly adopting a critical attitude towards the judgment. However, a summary rejection of the underlying idea of an exceptional national constitutional review of EU acts does not seem warranted. Unconditional primacy has been disputed by different national courts for some time now, and on two occasions, national apex courts already declared EU acts ultra vires. Considering its inherent diversity, the EU should be able to accommodate legitimate national constitutional concerns. A common frame of reference, possibly provided by Art. 4(2) TEU, could facilitate such accommodation if very high standards of violation were adopted by national courts, which would also respect the principle of loyal cooperation. In this regard, EU law also marks red lines when it comes to its fundamental principles, limiting the possibility of abuse. The Slovenian Constitution introduces EU law through Art. 3a, adopted for the purpose of accession to the EU. The Slovenian Constitutional Court's case law is generally very EU-friendly, and it could be marked by cooperative vagueness, echoing the doctrines of the CJEU. A clear answer regarding the relationship between national (constitutional) law and EU law is lacking in its jurisprudence. The court explicitly left the question of absolute primacy open. The substantive preconditions for the transfer of sovereign rights in Art. 3a, namely, respect for human rights and fundamental freedoms, democracy, and the principles of the rule of law, have been interpreted in different ways in academia. However, considering the inalienable right to self-determination, in exceptional cases of serious encroachment on fundamental constitutional values, the SCC would probably adopt its version of the BVerfG’s doctrines.

Coming without coming from: The adoptee’s right of access to origins within the constraints of maternal anonymity

This article analyses the judicial path, crossed by lights and shadows, and its ability to make it feasible to more easily learn information about one’s own parental history in anonymous birth. A comparison is made between the European Court of Human Rights (ECtHR) case law and the Italian Constitutional Court case law, showing differences in the methods but strong similarities in the substantive solutions. Conclusively, in the Italian legal system, the mother’s decision to confirm her original choice for anonymity has an undisputed prevalence when it tries to balance with the child’s constitutional right to have his or her own personal experience recognised.

The Principle of the Primacy of EU Law in Light of the Case Law of the Constitutional Courts of Italy, Germany, France, and Austria

This article examines the relationship among national constitutions, constitutional courts, and the primacy of Community Law in connection with four Member States (Germany, France, Italy, and Austria). It starts with the question of whether national constitutions contain a European Union (EU) clause and explicitly provide for the primacy of Community Law. It examines whether any constitutional restriction or reservation has been elaborated in the case law of constitutional courts, and the extent to which the constitutional courts examined can exercise control indirectly over cases of conformity of EU legislative acts with constitutions or cases of misuse of powers (ultra vires acts). The constitutions examined can be considered uniform in that they contain references to the individual Member States’ relationships with the EU and create the possibility of restricting their competence or sovereignty. However, they do not declare the principle of the primacy of Community Law. As a consequence, the constitutional courts of Member States play a key role in the interpretation of the principle of the primacy of Community Law, including the formulation of constitutional requirements and counterbalances in connection with the enforcement of the principle. A reference to constitutional identity appears in the case law of recent decades, the elements of which are elaborated on and filled with more or less specific content by the constitutional courts on a case-by-case basis. In the event of a possible violation of constitutional identity or principles with unconditional effectiveness, some constitutional courts exclude the possibility of Community Law being invoked against the constitution of a Member State, but at least on a case-by-case basis, they maintain the possibility of inapplicability or of creating compatibility. In the latter respect, the article also addresses the limited nature of the powers of constitutional courts to examine the compatibility of EU Treaties and their amendments with the constitution of a Member State (see ex-ante or ex-post review, procedural or substantive examination).

Starea de urgență va fi constituțională sau nu va fi deloc

In this article, I shall discuss two issues. First, I shall explain the Constitutional Court case-law on matters related to restrictions of fundamental rights and liberties by emergency decrees adopted by the Government. Second, I shall propose a specific and different interpretation of the constitutional provisions regulating the state of emergency (art. 93), the restriction of fundamental rights and liberties (art. 53) and the legislative delegation (art. 115).

The primacy and supremacy clauses of European Union Law and their application in the legal order of the Republic of Lithuania

The primacy and supremacy clauses of European Union law (“EU law”) are to one of the most prevalent issues concerning the relationship between EU law and domestic law of the Republic of Lithuania. It seems that such issues were not definitely settled even when the Treaty of Lisbon amending the Treaty on European Union, which established the European Community. During that period, significant changes were made in EU Member States, regarding the domestic application of the principle of primacy and supremacy of EU law. Lithuanian law has undergone the development in this sphere too.The European Court of Justice (“ECJ”) has developed the meaning of the principle of primacy, which means that European Union law should take precedence over the national law (even over constitutional provisions) and, in case of conflicts between EU law and national law, every national court is obliged to apply the European Union law. The comparative analysis of the Lithuanian Constitutional Court case law shows counter development to the ECJ case law, which may cause the jurisdictional collision of setting aside EU law based on constitutional grounds.The paper includes some relevant examples of application of EU law arising from preliminary ruling procedure under Art. 267 of Treaty on the Functioning of the European Union in the praxis of the Lithuanian Constitutional Court and Lithuanian courts of general and special competences.

The Distribution of Legislative Competences Between State and Regions in the Evolution of Italian Constitutional Court Case-Law

The article deals with the issue of the distribution of legislative competences between the State and the Regions after the reform of Title V of the Italian Constitution (1999-2001). After setting out the novelties introduced by the reform and, in particular, the contents of the “new” Section 117 of the Constitution, the Author focuses both on the contribution of constitutional case-law to the correct definition of state and regional competence areas and on the decision-making techniques implemented. The case-law examination highlights the constant tension between the autonomist and the unitary claims and the need to promote dialogue and cooperation between the State and the Regions to overcome the current conflict, hence ensuring the good functioning of the Italian regional system.

Proportionality or Rationality in Socio-Economic Rights Adjudication? Case Study of the Czech Constitutional Court’s Judgment in Compulsory Vaccination Case

Proportionality represents the basic methodological approach towards constitutional rights adjudication. The million-dollar question raised in current doctrinal work is the question of its limits. One such limit concerns the applicability of the doctrine to socioeconomic rights. Since the doctrine and case law of constitutional courts do not provide clear answers in this regard, the main goal of this paper is to assess whether proportionality is a suitable method to review interferences with socio-economic rights. First, the paper discusses the theoretical aspects of this issue, primarily the paradigmatic structure of constitutional review. Second, the paper continues with a case study of the Czech Constitutional Court. In order to review interferences of these rights, the Constitutional Court applies the rationality test. The abstract definition of the test implies only means-ends analysis. Notwithstanding this, it represents an open-ended standard akin to proportionality. The paper concludes by assessing whether there are differences between these two standards of review of reasonableness.

The Italian Constitutional Court Case Law on Competition Law and Free Trade within the Framework of the European Union Legal System

Abstract This paper analyzes the path paved by the Italian Constitutional Court (ICC) in order to reconcile the series of its inconsistent judgments dealing with free trade, right to economic initiative, and freedom of competition. For this purpose, this article aims at investigating the role of the Italian Constitutional Court in the ‘constitutionalization’ of free trade and freedom of competition and at assessing the relationship between European Union policies and the Constitutional Court interpretation thereof. The last decade demonstrates, on the one hand, that the European Union law has influenced the domestic case law and, on the other hand, that, in turn, the European Union legal system has been ‘constitutionalized’ through the introduction of social and constitutional principles deriving from the Member States’ Constitutions.

O que é a vida segundo as cortes constitucionais do novo constitucionalismo latino-americano?

The paper approaches the right to life at new Latin-American constitutionalism. It highlights the different approaches among the caselaw of Constitutional Courts of Brazil, Colombia, Ecuador and Bolivia. The Brazilian and Colombian Courts emphasize the human dignity as a right, while Ecuadorian and Bolivian choose one original concept: the “good life”, called “bien viver” in Spanish or “sumak kawsay” in indigenous dialect.