European Constitutional Courts Research Articles

Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective

Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective

What Red Lines, If Any, Do the Lisbon Judgments of European Constitutional Courts Draw for Future EU Integration?

The paper critically examines the Lisbon decisions of European Constitutional Courts and attempts to tease out what red lines they draw for future European integration. Overall, the Constitutional Courts leave much hope for an enduring legal development of the EU. The only definitive red line is not of a legal, but of a moral nature. As long as the EU continues to exist for the sake of the European People,and the common good is truly best served by it, then deeper integration can be morally justified, politically achieved, and legally implemented. This conception of the European idea, this dream of Europe, can be defended in the face of critics, regardless of the red lines to integration.

The Illiberal Abuse of Constitutional Courts in Europe

Legal constitutionalism – Political constitutionalism – Emergence of illiberal constitutionalism as a tertium genus – Examination of constitutional courts under three illiberal governments: Poland, Hungary, and Turkey – Illiberal governments’ strategies to seize control of constitutional courts – Illiberal governments’ aim to secure leverage over constitutional judges and restrict the powers of review of the court – Constitutional courts under illiberal rule invert the traditional functions that were assigned to them under the original Kelsenian approach – Instead of a check on power, illiberal constitutional courts become a device to circumvent constitutional constraints and concentrate power in the hands of the ruling actors.

General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

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

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.

Politics and the Supreme Court: The Need for Ideological Balance

Politically controversial decisions and divisive nomination battles at the U.S. Supreme Court reflect a disturbing reality — the Justices’ personal ideologies exert undue influence on the Court’s work. The ability of a mere majority of conservative or liberal Justices to impose their perspective creates three serious and related problems: Members of the public who share the perspective of the Court minority lack meaningful representation on many important issues, the judicial appointment process has become highly politicized as each side fights for a Court majority, and we increase the risk of ill-advised decisions. Better decisions are made when they are based on a diversity of perspectives. Accordingly, I argue for a Supreme Court that operates on an ideologically balanced basis. With ideological balance, the Court would provide meaningful representation to all, it would defuse the politicization of judicial appointments, and it would make wiser decisions. On the relevant metrics, a Court with ideological balance is superior to a Court that brings an ideological bias to its work. Indeed, it is difficult to identify a good reason for permitting the Court to function with a majority on one side or the other of the ideological spectrum. While we can point to the principle of majority rule to justify partisan control in the executive or legislative branches, majorities do not deserve special recognition in a judicial branch that should be guided by legal principle rather than popular sentiment. Drawing on approaches at European constitutional courts and several state supreme courts, I identify three models for achieving ideological balance on the Supreme Court and lower courts. I also discuss how a combination of those models would provide the best results.

The Features of the Modern Concept of Separation of Powers as an Element of Constitutionalism - “The Garden of Eden” or “The Dark Side of the Moon ”?

The focus of the contemporary constitutional law and the constitutionalism is the limitation of the government by the means of legal instruments and mechanisms. Therefore, the analysis of the relation between the concept of constitutionalism and the principle of separation of powers has the central position of this paper. The paper elaborates the concept of constitutionalism as an idea and ideology of limited and controlled power. At the same time it has been emphasised that the development of the constitutionalism as a doctrine is possible only with previous analysis of its basic elements. The principle of "separation of powers" is one of these elements. The second point of this paper refers to the principle of “separation of powers” as one of the basic principles and concepts of the contemporary constitutions. The principle of separation of powers is a basic idea, general objective and a constant of the contemporary legal order. However, the paper will point out that the new situation in the relations between the branches of the government and the adaptation of the principle of separation of powers to the new circumstances, in the constitutional literature is known as contemporary constitutionalism. The paper elaborates the concepts of judicial supremacy and judicial paramontcy as elements of the contemporary American constitutionalism, as well as the manners and attempts for their theoretical justification. On the other hand, the paper will elaborate the phenomenon of judicial juristocracy in the European continental systems for control of constitutionality. The paper highlights the implementation of the doctrine of review of the constitutionality of the constitutional norms (verfassungswidrigen Verfassungsrechts) in the practice of the European constitutional courts. It elaborates the dilemma does the interpretation of the “mischievous phrases” of the constitution, by introducing concepts for ,,symbolic constitution” and ,,constitution behind a constitution” on one hand, and the introduction of the doctrine of review of the constitutionality of the constitutional norms on other, overhangs the concept of separation of powers, as The Sword of Leviathan. Finally the paper sets the dilemma whether the tectonic shift of the focus of decision making towards the legislative – executive – judicial power, and the unhidden and manifested will, ambition and activity of the courts to control the action of political authorities as a feature of the contemporary constitutionalism, is the so-called “the garden of Eden” or its opposite “the Dark Side of the Moon”.

The Capture of the Polish Constitutional Tribunal and Beyond: Of Institution(s), Fidelities and the Rule of Law in Flux

History might have stopped for the Polish Constitutional Court in 2015–2016. After thirty years of building an impressive resume as one of the most influential and successful European constitutional courts and living proof of ‘the rule of law in action’, the Court has fallen under the relentless attack of a right-wing populist government and succumbed to it. This paper moves beyond the hitherto dominant perspective of ‘here and now’ and lawyers’ fixation on ‘the boat’, and instead focuses more on the journey and important lessons the journey might teach us and enhance the understanding of ‘our boat’. The Polish case (‘the boat’) is much more than just an isolated example of yet another government going rogue. An important European dimension colors what has transpired in Poland over the last twenty months. To understand what has happened in Poland and why, one has to take a longer view and revisit not only its 2004 accession, but also its 1989 constitutional moment. The constitutional debacle in Poland must be but a starting point for a more general analysis of the processes of the politics of resentment and constitutional capture that strike at core European principles of the rule of law, separation of powers and judicial independence.

Ernst-Wolfgang Böckenförde's Oeuvre on Religious Freedom Applied to Recent Decisions of the European Court of Human Rights

In Europe, issues concerning religious freedom are hotly debated. Many courts had to consider cases concerning infringement of religious freedom. This Article will focus on three examples: Headscarves, burqas, and crucifixes. Often, the interests of members of minority religions have lost in European courts and European constitutional courts. This is particularly true considering the decisions of the European Court of Human Rights. The European Court of Human Rights upheld bans on headscarves for students in universities and public secondary schools, as well as for teachers in public schools. The Court also accepted bans on full-body veils worn in public areas. Finally, mandatory crucifixes in public schools have been deemed to conform to the standards set by the European Convention on Human Rights. In all of these cases, the European Court of Human Rights has not adequately construed religious freedom as a strong right.This is where the work of Ernst-Wolfgang Böckenförde comes in. Böckenförde has thoroughly discussed the proper role of religion in a democratic society. Coming from a theoretical starting point, he developed an understanding of religious freedom as a strong right. He also explained why State neutrality should be understood in terms of open neutrality. Both perspectives help to more fully explain the scope of religious freedom.

Public Opinion and Opposition Party Success: Evidence from the European Constitutional Courts

ABSTRACTDo “the people” influence high court decision-making? There is, at first glance, little apparent reason for the answer to be yes. Yet there has long existed empirical support to conclude that the U.S. Supreme Court has been responsive to the public's mood. In this article, we consider—in a new environment, and at a more direct level—whether public opinion can act as a mechanism to spur judicial decision-making and shape court-legislative interactions. In particular, we leverage the ability of parliamentary opposition groups in many countries to file legal challenges directly to the constitutional court through the abstract review process. Overall, we find a strong indication that these high court judges do respond in an indirect way to the general public will, overturning cases more often and agreeing with the parliament less often when public approval is shifting away from the parliamentary majority and toward the opposition.

«Призрак бродит по решениям европейских конституционных судов»: что делать с конституционной идентичностью?

«Призрак бродит по решениям европейских конституционных судов»: что делать с конституционной идентичностью?

¿Cómo deciden las Cortes Constitucionales?

El propósito de este artículo es explorar el modo de producción de las sentencias judiciales jurídicas redactadas por cortes constitucionales en Europa. El objeto de estudio natural de la teoría constitucional es el análisis de este producto final de creación judicial de Derecho por Cortes Constitucionales. Sin embargo, la doctrina no ha prestado suficiente atención, desde una perspectiva de derecho comparado, a los mecanismos y procedimientos que conducen a las decisiones de estas instituciones. Así, este documento hará una clasificación de los diferentes tipos de procesos decisionales en las cortes, analizando las etapas que conforman «el modo de producción», a partir del estudio de las decisiones de la Corte Suprema de Estados Unidos, el Consejo Constitucional francés, la Corte Constitucional italiana y la Corte Constitucional alemana. Al final del documento se hacen algunas conclusiones sobre el periodo de los magistrados, su filiación partidista, las restricciones temporales de deliberación y factores institucionales como el número de asistentes o la personalización de sus miembros.

Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts

As “oracles of the law,” judges are trained to provide certainty and guidance within an often‐uncertain legal landscape. Nowhere is this statement truer than in the civil law tradition, where the idea of legal certainty has been prized as a “supreme value.” Despite this tradition, dissenting opinions are now quite common within most European constitutional courts. Using new data from five countries and interviews with constitutional court judges and clerks, I investigate factors that contribute to dissent on constitutional courts. Results indicate that legal and policy characteristics matter, but so do judicial backgrounds and the issues reviewed.

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

An empirical analysis of constitutional review voting in the polish constitutional tribunal, 2003–2014

Different theories have been developed, mainly in the context of the United States, to explain judicial decision-making. In this respect, there is an important ongoing debate over whether judges are guided by the law or by personal ideology. The analysis of the decision-making in the Polish Constitutional Tribunal seems to support the existence of some party alignment. It is to say that judicial behavior is influenced by the ideology, either because judges’ preferences coincide with the interests of a specific party or because the judges are incentivized to show their loyalty to a party. Party alignment exists but subject to institutional influences. These results are in line with previous findings for other constitutional courts in Europe.

The powers of the European Constitutional Courts to hear cases on the constitutionality of regulations at the request of the courts and their corresponding features of manufacture

The article analyzes the powers of the constitutional courts of four leading European countries: Germany, France, Italy and Spain to consider cases on the constitutionality of regulations at the request of the courts, as well as the corresponding features of the production. Reveals the nature of this type of constitutional proceedings. It is proved that the adversarial principle is applied only partially, and in some cases does not apply.

European model of constitutional justice: Its existence and perspective

In a number of states, including the Republic of Serbia, constitutional justice has been assuming the role of the supervisor of the legislative, the executive and the regular judicial power. Although it means that constitutional courts in Europe have increasingly become 'the people's courts', they still preserve the character of independent institutions which, while resolving extremely complex objective constitutional conflicts, still occupy, 'a position at the intersection of law and politics'. On the other hand, an extraordinary activism of constitutional justice in review of rights has resulted in an increased number of proponents in the doctrine of constitutional jurisprudence advocating the standpoint that constitutional justice is a specific power of constitutional control; given its nature, it has come to be the 'forth' branch of state authority.

The Co-operation of Constitutional Courts in Europe – Current Situation and Perspectives

The Co-operation of Constitutional Courts in Europe – Current Situation and Perspectives

Sobre o postulado da moda, a proporcionalidade: sua liturgia metodológica e sua irracionalidade

In accordance with a new phase of constitutional law – “new constitutionalism” – proportionality was elevated to a constitutional principle in numerous constitutional courts in Europe, Asia and South America. This article seeks to refute the current conception of the principle of proportionality as a method of resolving confl icts between constitutional principles and of achieving the values inherent in democracy. Therefore, we argue that the supposed truth of the postulate of proportionality, which adjudicates principles through balancing, depends on a methodological liturgy whose method – embodied by the three steps of proportionality – legitimizes the high degree of irrationality of the decision made under this postulate. Under this approach, we believe that the transition between the three steps of proportionality creates a formalist and a-historical conception of fundamental rights, in so far as the real interests at stake are concealed by the thick methodological framework that underlies the decision.Keywords: proportionality, balancing, methodology, irrationality, fundamental rights.

What Red Lines, If Any, Do the Lisbon Judgments of European Constitutional Courts Draw for Future EU Integration?

The lingering European financial crisis continues to threaten the Eurozone and, in the opinion of German Chancellor Angela Merkel, the very survival of the European idea. With this apocalyptic rhetoric, it is easily forgotten that only nine years earlier Europe overcame a predicament that was, at the time, equally described as the most challenging in its history. Two failed referendums in Member States of the European Union (Member States)—namely, in France and the Netherlands—stopped the Treaty establishing a Constitution for Europe (Constitutional Treaty) in its tracks and led to an extended “period of reflection” for Europe's leaders. From this emerged a reboot of the Constitutional Treaty, now dubbed the Treaty of Lisbon, with few substantial changes, but more success throughout the ratification procedures. The final hurdle presented itself in the form of institutionally strong Constitutional Courts (CC) and Tribunals (CT) of the European Member States. Of these, the following were at one time or another seized with complaints against the ratification of the Lisbon Treaty: The AustrianVerfassungsgerichtshof(Austrian CC), the Belgian CC, theÚstavní soud České republiky(Czech CC), the FrenchConseil Constitutionnel(French CC), the GermanBundesverfassungsgericht(German CC), the Hungarian CC, theLatvijas Republikas Satversmes tiesa(Latvian CC), the PolishTrybunał Konstytucyjny(Polish CT), and theTribunal Constitucional de España(Spanish CT).