CONCLUSIONS

Now that we have completed our overview of the ways in which constitutional

courts in the post-communist states of Central and Eastern Europe understand and

articulate constitutional rights, and impose, at times, their own understandings upon

the political branches of government, can we concur in the magnificent praises that

have been lavished upon them by outside observers and acknowledge that they have

been “the flagships of the rule of law and constitutional faith in the emergent Eastern

European democracies”.1 Can we conclude that they indeed became “courageous

and vigorous defenders of constitutional principles and human rights, continuing the

pattern shown elsewhere in the world”?2

No doubt, much will depend upon one’s assessment of the “pattern shown

elsewhere in the world”; as already mentioned in the Preface, the scholarly support

for systems of robust judicial review “elsewhere in the world” is far from

unanimous. Important doubts and criticisms have been expressed, and the fact that

constitutional judicial review in CEE has not thus far been the target of these may in

itself be part of the problem: institutions that are insulated from principled critique

are in danger of developing a culture of self-importance and conceit. This may be all

the more troubling because, as our survey in Chapters 6-10 has shown, the record of

constitutional courts in the region (including the most activist, independent and

powerful of the courts) is far from unambiguously positive. While there is no doubt

that they have improved a large number of statutes and invalidated numerous laws

that were deeply objectionable from the point of view of liberal-democratic

standards of individual rights, there have also been several more worrying cases: of

missed opportunities to strike down objectionable laws, and even of invalidating

certain rights-protective laws, and thus pushing the legal regime of their states in a

less liberal direction. There have been also several examples involving legal

regulations that were the subject of reasonable disagreement amongst people in good

faith, where the courts replaced the choices of the political branches of government

with their own choices and preferences.

Undoubtedly, these negative categories (of missed opportunities and objection-

able invalidations) are, on balance, less numerous and less weighty than the

interventions of constitutional courts to remove excessive restrictions on and

departures from constitutional rights, expansively interpreted. But this is not the end

of the story; the calculus does not finish there. If the existence of robust

constitutional review were cost-free, and any positive interventions by the courts

could be seen as a “bonus”, then the enthusiasm of strongest supporters of those

courts would be fully justified. However, as suggested in Chapter 5, the calculus has

to be more nuanced, and thus the enthusiasm more qualified. As the existence of the

constitutional courts is not cost-free, and the legitimacy of those courts in displacing

the choices of the political branches of government is largely seen as resting upon

their record in the protection of constitutional rights, it is perhaps proper to subject

these institutions to a more severe scrutiny than has thus far been the case both

within and outside the states in which they have been set up. In particular, it is

important to go beyond the conclusion that, on balance, constitutional courts have

saved the post-communist citizens from dangerous and oppressive laws – even

although such a conclusion would be justified – and raise the question of the

290 CONCLUSIONS

connections between political legitimacy, institutional competence, and possible

infringements of the political rights of citizens. These three dimensions are

obviously implicated whenever the last word on issues of rights protection or policy-

setting are placed in the hands of a body that is not accountable to the electorate in

the way parliaments (and governments controlled by the parliaments) are. At the

very least, the positive contribution of these courts has to be compared to the

negative consequences of elevating them to such a prominent role in the political

system.

In Chapter 5, I identified two possible negative consequences in the long run for

establishing a system of judicial review of statutes in terms of constitutional rights: a

possible societal apathy towards rights articulations, and the potential for legislative

negligence towards rights. These two phenomena have to be taken seriously. Mark

Tushnet has coined the concept of “democratic debilitation”, which he takes to mean

that “the public and their democratically elected representatives cease to formulate

and discuss constitutional norms, instead relying on the courts to address

constitutional problems.”3 “Democratic debilitation” may lead to depoliticisation,

apathy and withdrawal of the general public from the public discourse on policy

proposals and law reform, and to the conversion of fundamental moral-political

choices and dilemmas into the juridical language of the true meaning of the

constitution. Here is how Jack Balkin describes the phenomenon (although not in the

People who immerse themselves in the Constitution and its traditions often bring the

concepts of that tradition to bear in their other moral and political judgments. In this

way the tools of constitutional thinking infect our attitudes towards basic questions of

social justice and political philosophy. We find that when we discuss these questions,

warps and limits our imagination about justice. 4

Balkin uses the loaded word “infect”; however, the same phenomenon can be

described from an opposite value perspective, namely as a necessary and desirable

consequence of the attempt to insulate the protection of those fundamental interests

that are constitutionally identified from the realm of everyday politics, the latter

characterised, as it often is, by populism, demagogy and intolerance.

Indeed, it has been the positive perspective that has dominated the discourse both

by, and about, the constitutional courts of post-communist states. Probably the most

famous of all CEE constitutional judges, the chief justice of the most activist of

these courts, László Sólyom, announced at the height of the most dynamic period of

the life of his Courts: “The existence of the Constitutional Court during the

transition … allowed the transformation of political problems into legal questions

that could be addressed with final, binding decisions”.5 This, Sólyom took to be a

matter of pride rather than embarrassment. However, “transforming political

problems into legal questions” has its price, both in terms of the depth of societal

discourse concerning those “political problems” once they have been framed in

terms of the “true meaning” of complex constitutional texts, and of the institutional

implications of such a translation. Significantly, these words of Judge Sólyom were

quoted by the American legal scholar Ruti Teitel in the context of her discussion of

the famous Zetenyi judgment of the Hungarian Constitutional Court, described here

context of constitutional courts):

we turn to the language of the Constitution as second nature. It is a language that

CONCLUSIONS 291

in chapter 9; an important decision in which the Hungarian Court asserted for itself a

central role in defining the terms of transition to a democratic system and, more

importantly, the degree of continuity with the Communist system. Teitel observed:

“The Zetenyi case stands for the proposition that the authority to asses the legality of

the prior regime does not lie with Parliament, but instead with the Constitutional

Court”, and she further hypothesised that (under some interpretations) this decision

may have been “less about the rule of law than about institutional distrust”.6

As is well known, such “institutional distrust” has largely been justified: the

performance of most of the parliaments in CEE has been an unwholesome display of

demagoguery, intellectual incompetence and corruption. Of course, the reality was

much more complex than this, and to what extent these characteristics were

encouraged rather than countered by strong judicial review is a question that must be

asked. There is a very real danger of producing pathologies in the incentive

structures for the other political actors: when the legislative process occurs “in the

shadow of judicial review”, there is a high likelihood that legislative irresponsibility

will result. Kim Lane Scheppele, in her account of a series of decisions by the

Hungarian Constitutional Court in 1995, which struck down the laws upon which the

government’s austerity program relied (the Bokros package, discussed in Chapter 7),

gives the example of one particular provision of this legislative package that raised

the suspicion “that the Parliament . . . very much wanted the Constitutional Court to

strike down this law”.7 This, in Scheppele’s account, is an isolated and non-typical

episode; nevertheless it points to a much more serious threat to the integrity of the

legislative process than many enthusiasts of constitutional judicial review are willing

to concede,8 namely, the encouragement of legislative irresponsibility. This occurs

when the very awareness of possible review makes legislators less attentive than

they should be to constitutional rights. The result can be legislative apathy in the

implementation of constitutional rights (along the lines of: “if something is wrong,

the court will remind us of it”). An opposite, but equally plausible, result of judicial

finality in the articulation of rights is legislative inaction: not enacting certain laws

on the basis that the court is likely to invalidate them (“we would like to legislate but

the court will not allow us”).9 Either way, whether irresponsibility or apathy,

pathology is introduced into the decision-making process of the legislature where the

existence of a superior body (rather than the existence of constitutional norms)

causes distortions in legislative choices.

This is not to say that legislatures are necessarily made unhappy by these

distortions; on the contrary, they may enjoy the fact that they have an excuse for

doing (or not doing) something that might be politically (un)popular, and that they

find, in constitutional courts, a convenient scapegoat. This is a phenomenon that has

been observed by the students of Western judicial review. Keith Whittington notes

that in the United Stated, where the link, in the eyes of the voters, between a

parliamentary action and judicial conduct is very remote and indirect, the politicians

may use the Supreme Court as a vehicle of achieving unpopular, or politically

costly, results without risking political losses themselves: “Elected officials have an

incentive to bolster judicial authority not only to encourage the judiciary to take

independent action but also to weaken the voter’s ability to trace responsibility back

to elected officials”.10

The example that Whittington gives is of civil rights for

292 CONCLUSIONS

African-Americans under the Warren Court: the Southern Democrats could de-

nounce those decisions and claim credit in the eyes of the electorate, while Northern

Democrats could achieve substantive political gains without having to take any

action that could cause them electoral losses. As a result, “the Democratic Party was

less likely to be electorally punished for decisions on desegregation . . . even though

these decisions were consistent with basic party commitments”.11

More generally,

Klaus von Beyme notes that constitutional courts, including those in CEE, perform a

useful role of “blame-sharing”: “In democratic systems [constitutional courts]

perform important functions in the area of “blame-sharing”. Government alone is

not responsible for certain unavoidable but unpopular measures which have to be

taken in order to consolidate democracy”.12

Such a system of “blame sharing” may not be, in itself, a bad thing; on the

contrary, it may be a useful and generally beneficial strategy of taking away some of

the populist political pressure from parliaments, if the blame can be attributed to

those who do not have to pay the political price for “unpopular” (in the short term)

decisions. This presupposes a certain division of labour in an overall system of

government. It does not presuppose that the parliaments will be the weak link of the

system, and it is not an automatic invitation to irresponsibility or apathy. If,

however, the parliaments are weak and unpopular, the “blame sharing” strategy may

backfire: it may weaken the legislature even further by taking away both their

prestige (because they will be seen as less salient in the system) and their incentives

for taking constitutional values seriously. As a Polish political philosopher, Marcin

Król, caustically noted recently about the legislature in that country:

Although the Parliament is a lawmaking body, therefore a very important one,

nevertheless – in Poland – almost all important statutes are challenged either by the

President or by the Constitutional Tribunal, and this permits the deputies to do what

they like because their ideas will come under constraint.13

Król’s observation cannot be easily discarded; it shows that legislative

irresponsibility is perceived as a real problem, and that it is directly linked to the

probability that the constitutional court will counter the deputies’ worst legislative

excesses.

There has been an important trend in Western constitutional theorising that

suggests that the creation of “external” scrutiny of constitutionality, in the form of

bodies such as constitutional courts, has detrimental effects upon the seriousness

with which the parliaments (and, consequently, the people) take constitutional

norms; the argument is that there is an inverse relationship between the salience of

constitutional considerations in parliamentary deliberations and the existence of

external checks of the constitutionality of legislation by other bodies. This has been

well expressed by Robert Dahl, who uses the concept of “quasi-guardians” to

Quasi guardianship may . . . require less self-restraint on the part of the demos and its

representatives and more externally imposed restraint by judicial guardians. Over time,

the political culture may come to incorporate the expectation that the judicial

guardianship can be counted on to fend off violations of fundamental rights, just as

greater self-restraint on the part of the demos and its representatives may become a

stronger norm in the political cultures of polyarchies without judicial guardianship.14

describe those external scrutinisers:

CONCLUSIONS 293

Whether, and to what degree, such an effect has occurred in CEE is a matter for

speculation only, and there are some who feel that the presence (and the activities)

of the constitutional courts has actually strengthened the role of constitutional

considerations in the lawmakers' motives. For instance, according to the President of

the Czech Senate, the existence of the constitutional court “is a kind of conscience

for the Senators… that guides their considerations when they vote for a particular

law”.15

This is particularly important given that, according to the same politician, the

Senators often wilfully ignore constitutional provisions and are prepared to endorse

various legislative measures even if they are inconsistent with the Constitution. The

existence of the Constitutional Court is, he argues, a factor that strengthens rather

than weakens the significance of the constitutional considerations in the legislative

process. Which effect in fact prevails, either that of emphasising the importance of

constitutional consideration or of emptying the legislators’ minds of constitutional

concerns, is something that cannot be determined with any precision. However the

fact that the latter effect is present is beyond any reasonable doubt, and it is thus

something that has to influence the overall score card for the constitutional courts in

the region.

Now if this latter effect does occur, and the existence of constitutional courts

have a weakening effect upon the prestige, seriousness and the sense of

responsibility of the parliaments, then one cannot fail to notice that those arguments

in favour of robust judicial review that are based on the weakness and

irresponsibility of parliaments put in motion a self-perpetuating mechanism: the

presumed defects of parliaments used to justify judicial review in the first place

become a self-fulfilling prophecy. True, parliaments in CEE enjoy very little social

prestige16

and, as noted above, there is often more than enough reason for the high

levels of social disrespect. And one can see why this happened, even quite apart

from the – contingently true – low quality of the “political class” in post-communist

democracies: the parliaments have carried the odium of the old, sham parliaments of

the Communist era, while the constitutional courts have benefited from what Ruti

Teitel called “the legitimacy of hope” granted to a new institution.17

However, to

draw from the accumulated distrust felt generally towards parliaments a conclusion

as to the need for a robust “oversight institution” in the shape of a constitutional

court may be likened to finding a remedy that contributes to the illness. As Stephen

The greater power and prestige granted to the constitutional court, the more

diminished may be the power and prestige of parliament, and the more difficult it

may be to create legitimate and accountable authority through elections. . . .”.18

They

offer this prediction not in order to fundamentally reject the very idea of

constitutional courts in CEE, but rather in order to warn against allowing them to

develop into something more than a secondary institution in a democratic political

system. This also may be seen as one of the central themes of this present book.

The experience with constitutional courts in CEE, and in particular the question

of their monopoly on the conclusive articulation of the true meaning of

constitutional rights, resonates with a more universal, world-wide questioning of the

ramifications of judicial review. The fundamental question raised by judicial review

under bills of rights may be formulated as: is judicial supremacy really essential to

Holmes and Cass Sunstein predict: “a court-centred democracy is unlikely to last.

294 CONCLUSIONS

“the maintenance of constitutionalism”, or is it the case that all of the main

institutional actors, and in particular the parliaments, are responsible for taking the

Constitution seriously and providing authoritative articulations of its meaning? As

Alec Stone Sweet sensibly remarks in his recent article:

It would be a mistake to dismiss parliamentary adjudication of rights as inherently less

meaningful or less ‘judicial’ than the deliberations of a constitutional court. Parliament

and the court are doing more or less the same thing, speaking in more or less the same

language and working through more or less the same normative material.19

If the link between the very principle of constitutionalism and judicial supremacy

is questioned, then the institutional problem of how best to guarantee the salience of

constitutionalism in political life becomes precisely that: an institutional question,

which has to be tackled in a pragmatic way, by studying the various incentives that

act upon various institutions and that render them more or less likely to take the

constitution seriously. As Keith Whittington argues: “Constitutional maintenance

requires a political commitment to constitutional interpretation. Political actors must

care what the Constitution means, and be willing to temper their immediate political

desires accordingly”.20

The prevailing constitutional doctrine in CEE (as much as

everywhere else in the world) portrays this interpretative task as a technical, arcane

skill, where legal qualifications are key to the successful discharge of the task. But

as soon as we start to view constitutional interpretation as a constructive and creative

task of infusing the abstract constitutional clauses with political values in order to

render them operative in specific cases, the claim that lawyers enjoy a privileged

insight into their “real meaning” is undermined, and is revealed as a grab for power

constitutional-law scholarship often does), constitutional courts.

If we accept that all branches of government have a duty and the authority to

provide binding articulations of constitutional texts (including of constitutional

rights), then the issue of the relative powers of the legislature and the judicial (or

quasi-judicial) bodies assumes a pragmatic-institutional character rather than a

principled one: whether the constitutional courts should exist and should have the

power of final decisions even if they do displace the choices of the legislature

becomes a matter evaluating the incentive structure that this would produce for the

overall system, including all other governmental bodies, in terms of taking the

constitutional mandates seriously. As suggested above, it is far from obvious that

judicial supremacy and finality must have a positive effect on such incentives. They

may, and often do, create the perverse incentives of irresponsibility and/or apathy.

Whether or not the latter prevail over the positive, constitution-respecting effects,

one thing is clear: robust judicial review should not be based on a theory that

assumes a judicial monopoly of access to “correct” constitutional meanings. The

institutional theory endorsed here may be analogised to what one already quoted

American scholar, Keith Whittington, calls “departmentalism”, that is “the doctrine

that each branch of government has the authority to determine constitutional

meaning independent of the judgements of the other branches”.21

It rejects the a

priori assumption that, when the institutions clash as to the best constitutional

interpretation, deference is owed automatically to the constitutional court. Instead, it

by the legal elites, particularly those represented in, or gravitating towards (as

CONCLUSIONS 295

postulates that each the institutional political actors must follow their own

understandings of the constitution, and calls for the various institutions to carefully

take note of each other’s constitutional articulation, without necessarily assigning a

privileged position to any of them. It does not reject the principle of constitutional

review, because the courts should be able to set aside laws they deem

unconstitutional, but it challenges the supreme power of the constitutional courts to

define for all other institutions, in a final and authoritative way, what the true

meaning of the vague rights clauses contained in the constitutions should be.

This theory also encourages the search for institutional innovations that may

reduce the force of the clash between the court and the legislature in cases of

fundamental disagreement over articulation of rights. Perhaps there is a middle way

between strong judicial review, in which the court simply strikes down a law in the

process of abstract review at the behest of the parliamentary minority, and the

immunisation of the parliament from any control under the rights provisions of the

constitution. In a recent article, the American constitutional scholar Stephen

Gardbaum has suggested that the emerging “Commonwealth model” of constitu-

tionalism may offer just such a solution. 22

One example of this model is the

Canadian system of judicial review under the Charter, in which the legislatures have

the power to override the Charter rights (or, in practice, the courts’ interpretation of

these rights) – as already discussed in Chapter 3 (3). Another is the New Zealand

Bill of Rights Act, which cannot serve as a basis for the invalidation of legislation,

but which provides a powerful instrument for judicial intervention in that all other

statutes have to be interpreted in a manner consistent with it. Finally, the third

example of the “Commonwealth model” suggested by Gardbaum is the United

Kingdom Human Rights Act, which not only places on all courts the duty to

interpret statutes consistently with the European Convention on Human Rights, but

also gives them the power to declare the incompatibility of statutory provisions with

that Convention, thus creating a strong expectation that the provision in question

will eventually be repealed by the parliament. This expectation is supported by the

fact that the parliament has a strong incentive to take such judicial declarations of

incompatibility very seriously indeed: if proper remedial legislative action is not

taken, then there is a high probability that the European Court of Human Rights

would reach the same conclusion as the domestic UK court, thus leading to the

considerable political embarrassment of having the United Kingdom lose a case in

Strasbourg.

All of these systems attempt, in different ways, to reconcile the task of the

protection of rights with the requirements of democratic governance, and of

transforming a judicial monologue into an inter-institutional dialogue. As Gardbaum

puts it, the hybrid model exemplified by these three systems “decouples judicial

review from judicial supremacy by empowering legislatures to have the final

word”.23

Another American scholar attracted to such a model, Michael J. Perry,

coined the term “judicial penultimacy”: a system that would grant the courts an

important role in protecting human rights but that would, at the same time, observe

the proposition that “with respect to the concrete, contextual meaning of entrenched,

indeterminate rights, electorally accountable legislators should have the last word

(even if their last word is to accept the court’s judgment)”.24

Whether any of these

296 CONCLUSIONS

institutional innovations are adaptable to the CEE context is a difficult matter to

assess; the point, however, is that we must not confine ourselves to a simple and

crude dichotomy: either full judicial supremacy on constitutional matters (subject

only to constitutional amendment) or total legislative omnipotence on all matters

pertaining to rights.

But is it legitimate in the first place to draw an analogy between the constitu-

tional courts in transitional states, such as those discussed in this book, and those in

more “developed” and “mature” systems, and to simply import the arguments con-

cerning the proper role of the judiciary as developed in those more mature systems?

It is sometimes claimed that such an extrapolation is unjustified, and that the

relevant differences between the states that have only just emerged from authori-

tarianism and those in established democracies should lead us to suspend the

criticisms of strong judicial review, which are justified in the West. In a recent,

wide-ranging article, the Chief Justice of the Israeli Supreme Court, Aharon Barak,

stated that judicial “minimalism” may be appropriate in old and established

democracies such as the United States, where “the main principles of the constitu-

tional framework have already been established, and the judicial corrective – which

assumes the existence of democracy – is limited in its role”; however, in “young and

fragile democracies, such as many of the new democracies in Eastern Europe . . . .

[m]inimalism is likely to be unsuitable”.25

This is a frequently made point, and it

benefits from a degree of commonsensical support: the more democracy is

vulnerable, the stronger the need seems to be for extra-political mechanisms (such as

judicial review) to protect it from itself and from its enemies. A careful student of

post-communist legal transformation, Ruti Teitel, has suggested that the usual

doubts concerning the legitimacy of judicial lawmaking simply do not apply in a

transitional legal environment:

Our ordinary intuitions about the nature and role of adjudication relate to presumptions

about the relative competence and capacities of judiciaries and legislatures in ordinary

times that simply do not hold in unstable periods. … In periods of political change, the

very concerns for legitimacy and democracy that ordinarily constrain activist

adjudication may well support such adjudication as an alternative to more politicized

uses of the law.26

In contrast to Barak and Teitel, I believe that there are good reasons to resist

reliance on the exceptional nature of transitional states as a means of side-stepping

the objections that we might raise elsewhere to the institutional anomalies dealt with

in this book. For one thing, as the post-communist states of CEE become more

mature and stable, so the objections against judicial lawmaking, which are pertinent

elsewhere in the democratic world, gain force in this region also. In particular, there

is little or no reason to suspend “our ordinary intuitions” about democracy and

legitimacy with respect to countries such as Hungary, Poland, the Czech Republic or

Slovenia, the very countries in which the constitutional courts are particularly

activist in character. In many relevant respects these states fully resemble mature

democracies, exhibiting as they do developed and pluralistic party systems, a free

and diverse press, well-educated and politically aware electorates and independent

judiciaries, etc.

CONCLUSIONS 297

Second, there would be a certain irony in reliance on the exceptional nature of

transitional states in CEE to defend the role of the activist constitutional courts of

the region, as some of the most activist courts themselves actually refer to the

“normalcy” of the democratic systems in which they operate to justify some of their

most activist decisions. The rhetoric of transition and extraordinariness is actually

strongly resisted by the constitutional courts themselves. As we saw in Chapter 9, in

an important decision of December 1994 declaring the “lustration” law (pertaining

to the vetting of political figures) unconstitutional on various grounds, the

Hungarian Constitutional Court relied partly on the argument that a successful

transition to a democratic system had actually occurred without the need for

restrictions on employment of the nature proposed; the upshot was that the alleged

purpose of the challenged law (namely, to secure a successful transition to

democracy) could not apply. The principles to be applied in assessing the lustration

provisions were therefore to be those applicable to a democratic state based on the

principle of the rule of law. The Court drew a clear contrast between the past and the

present, holding that they were separated by “the transition as a historical fact”.27

It

thus made it clear that the lawfulness of the “lustration” laws should be judged not

by reference to the unusual circumstances of transition, but rather by appeal to the

correct balancing of the rights and interests at issue. If anything, some of the courts

in CEE use (at least rhetorically) the argument from transitionalism to strengthen the

idea of deference to legislatures rather than for the purpose of self-reinforcement.

The Constitutional Tribunal of Poland, in emphasising that it conducts the control of

legality and not of wisdom of the statutes, has consistently asserted that the legislator

should have a broad discretion in deciding on which measures to adopt in order to

best achieved the declared aim. This principle, the Tribunal has occasionally noted,

is particularly important in periods of major systemic transformations, as transition

“from the authoritarian state to the state of law may exceptionally take forms that

would be unjustified under normal conditions”.28

Put simply, the constitutional

courts themselves either resist the rhetoric of exceptionalism altogether, or, when

they do accept it, they use it for purposes opposite to those suggested by the

defenders of strong judicial review in non-consolidated democracies.

and Eastern European societies are as yet too immature and not ready for demo-

cracy,29

and that, rather than aiming at fully-fledged democratic institutions, the

post-communist societies of CEE should aspire at no more than “authoritarian

political institutions, buttressed by indigenous cultural traditions, [which] seem to

offer the best matrix for the emergent civil society”.30

This type of prescription is

usually based on the diagnosis that a decisive role in shaping the political life in

these societies is played by pre-Communist traditions which are “hardly those of

Western liberal democracy”.31

The diagnosis is, however, faulty, and so is the

prescription. At least some of these societies had a pre-Communist past not less

democratic than the pre-World War II systems of many Western European societies

that now have unimpeachable democratic credentials. Moreover, the democratic

aspirations of peoples in the countries of the region have been greatly influenced by

the near-universal rise of democratic beliefs in recent decades – to the extent that the

explanatory power of the pre-Communist past has now only a very limited appli-

Third, exceptionality arguments resonate dangerously with the view that Central

298 CONCLUSIONS

theories of transitional constitutionalism is that they have the potential to become

self-perpetuating truths. By basing our actions and institutions upon them we may

actually postpone the advent of “normalcy”, and unnecessarily prolong the suspen-

sion of our usual intuitions regarding the principles of the separation of powers and

democratic legitimacy, such as those encapsulated in the simple maxim from a

classic article by Robert Dahl: “a system in which the policy preferences of

minorities prevail over majorities is at odds with the traditional criteria for

distinguishing a democracy from other political systems”32

. Suppose that we agree

that objective social and political factors weaken the argument for parliamentary

supremacy in transitional democracies, due to the weak civil society and

underdeveloped party political system – two factors among a number of conditions

driven democracy.33

By acting on this diagnosis, we contribute to the perpetuation of

this state of affairs by further disabling the parliaments, and by entrenching a strong

role for constitutional courts. By doing this, we institutionalise those very conditions

that led us to doubt the role and legitimacy of parliaments in the first place.

exempting the post-communist constitutional justice from the usual democratic

insights and critiques applicable elsewhere, has been consistently resisted here. An

opposite approach has been recommended: that the very newness of democracy after

the decades of authoritarianism requires a strong emphasis on participatory,

democratic political mechanisms, which foster rather than marginalise public

discourse. A system of strong judicial review of statutes under constitutional rights

can have a negative educational effect; it may help to generate the perception that

rights discourse in general is an obscure activity reserved for lawyers, and that

deliberation on the political values that give rise to specific articulations of rights is

something over which neither the population nor its elected representatives have any

control. Constitutionalism is weakened rather than enhanced when the understanding

emerges amongst civilians that a broad range of issues are decided on “legal”

(constitutional) grounds, with qualified lawyers enjoying a privileged understanding

of the ”true” meaning of those grounds because “legal craftsmanship is essential to

decode the meaning” of the Constitution.34

When, to take an extreme example, the

legal permissibility of abortion is decided by a contest between different legal

understandings of the concept of Rechtsstaat, rather than by public debate about

what the constitutionally proclaimed values of life, privacy, non-discrimination,

dignity etc. dictate, then obviously the incentives for the general public to argue in

constitutional terms are eroded. Constitutional arguments are then seen as an

external constraint upon public discourse (a constraint policed by legal experts

sitting on the constitutional court) rather than as an integral part of that discourse.

The general public and its representative, the parliament, are then socialised into the

rules of the division of labour in which they are expected to argue in terms of their

interests and preferences, while the court looks after constitutional standards. The

correlative implication is that these other political actors, and the general public, are

relieved of a duty to take constitutional concerns into account, and even if they

cation. However, the greatest concern that I have with regard to exceptionality

that are usually marshalled in support of the “exceptionality” arguments for a court-

For all of these reasons, the temptation of relying on exceptionably, and of

CONCLUSIONS 299

occasionally do, they may be proved mistaken by a small body composed of

constitutional experts.

This would be a fiasco rather than a triumph of constitutionalism. The experience

with constitutional courts in CEE shows that this side of constitutional maintenance

is at least as important as the undeniable gains made in terms of having statutes

monitored for their compliance with constitutional rights by specialised consti-

tutional guardians.

ENDNOTES

Preface

1 Klaus von Beyme, “The Genesis of Constitutional Review in Parliamentary Systems”, in Christine

Landfried, ed., Constitutional Review and Legislation (Nomos: Baden-Baden, 1988): 21-38 at 37. 2 See, e.g., Martin Krygier, “Poland: Life in an Abnormal Country”, National Interest 18 (Winter

1989/90): 55-64. 3 E.g., with respect to the Constitutional Court of the Czech Republic, Pavel Holländer reports: “The

scope of the Constitutional Court’s powers, as defined by the Constitution, is not subject of a

discussion in legal theory”, “The Role of the Czech Constitutional Court: Application of the

Constitution in Case Decisions of Ordinary Courts”, Parker Sch. J.E.Eur. L. 4 (1997): 445-65 at 447.

This observation applies very much to most of the constitutional courts in the region. 4 Princeton University Press: Princeton, 1999.

5 Routledge: London, 2003.

6Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (quoting Collins v. Harher Heights, 503 U.S. 115,

125 (1992)). 7 Judy Fudge, “The Canadian Charter of Rights: Recognition, Redistribution, and the Imperialism of the

Courts”, in Tom Campbell, K. D. Ewing & Adam Tomkins, eds, Sceptical Essays on Human Rights

(Oxford University Press: Oxford, 2001): 335-58 at 336.8 Id. at 336.

9 The contrast is not as sharp as this sentence suggests, regarding, for instance, France, where the dramatic

extension of the authority of the Constitutional Council was a result of decisions of the Council itself

rather than of prior constitutional design. In a watershed decision of 1971, the Council “incorporated”

the set of unwritten principles into a constitutional package (known by the doctrine as le bloc de

constitutionnalité on the basis of which the constitutional review of laws is conducted). The Council

did this by announcing its reliance on, among other things, “les principes fondamentaux reconnus par

le lois de la République” (P.F.R.L.R.) [Fundamental Principles of the Laws of the Republic] even

though the P.F.R.L.R. were not even mentioned, much less specified, by the Constitution in force (of

1958) at the time. However, the Council gave legal weight to the PFRLR because they were

mentioned in the Preamble to the 1946 Constitution, which, in turn, was mentioned by the Preamble

to the 1958 Constitution. These principles, the value of which was found to be equal to those of the

Declaration of Rights of Man and Citizen of 1789, were said to be discernible (by the Council itself,

naturally) in the legislation in place up to the fall of the republican system in France, i.e. up to July

L.G.D.J. 1999) at 714-15. 10

Herman Schwartz, “The New East European Constitutional Courts”, in A. E. Dick Howard (ed.),

Constitution Making in Eastern Europe (Woodrow Wilson Center Press: Washington, D.C., 1993):

163-208 at 165, footnote omitted. 11

Edouard Lambert, Le gouvernement des juges et la lutte contre la législation sociale aux Etats-Unis;

l'expérience américaine du contrôle judiciaire de la constitutionalité des lois (Giard: Paris, 1921). 12

Bernard Chantebout, Droit constitutionnel et science politique (A Colin: Paris, 1997, 14th ed.), at 60,

quoted by Michel Troper, La théorie du droit, le droit, l’État (Presses Universitaires de France : Paris,

2001) at 237 [The translation of this passage from French is mine – WS].13

Martin Shapiro, “The Success of Judicial Review”, in Sally J. Kenney, William M. Reisinger & John C.

Reitz (eds), Constitutional Dialogues In Comparative Perspective (Macmillan: London, 1999): 193-

219 at 214.

1940. See Georges Burdeau, Francis Hamon & Michel Troper, Droit constitutionnel, vol. 26 (Paris:

302 ENDNOTES

14

Bernhard Schlink, “German Constitutional Culture in Transition”, in Michel Rosenfeld (ed.), Constitu-

tionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Duke University Press:

Durham, 1994): 197-222 at 219. 15

Id. at 220.16

For example, in Poland, by 1998, out of thirty-four judges of the Constitutional Tribunal, only seven

had not been academics; see Schwartz supra note 1 at 261 n. 26. Bulgaria is the exception to this

general rule; Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria,

Sofia, 11 May 2001.17

For empirical support for this proposition, see James L. Gibson, Gregory A. Caldeira & Vanessa A.

Baird, “On the Legitimacy of National High Courts”, American Political Science Review 92 (1998):

343-58.18

George Fletcher, Basic Concepts of Legal Thought (Oxford University Press: New York, 1995) at 25. 19

See, similarly, Troper, supra note 12 at 244-45.20

See id. at 245. 21

This is notwithstanding some excellent work published recently in English, in particular Herman

Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago

Press: Chicago, 2000), who discusses in great detail constitutional courts in Russia, Poland, Slovakia,

Hungary and Bulgaria, and Radoslav Prochàzka, Mission Accomplished: On Founding Constitutional

Adjudication in Central Europe (CEU Press: Budapest, 2002), who discusses constitutional courts in

Poland, Hungary, Czech Republic and Slovakia. Prochàzka’s volume unfortunately became known to

me too late to be considered in any depth in the present book. 22

Art. 6.2 of the Treaty on European Union proclaims, inter alia, that the “Union shall respect funda-

mental rights . . . as they result from the constitutional traditions common to the Member States ….”.

case law of the European Court of Justice, see generally Alessandro Pizzorusso, Il patrimonio costitu-

zionale europeo (Il Mulino: Bologna, 2002) at 7-12, and also the Preamble to the Charter of

Fundamental Rights of the European Union (fifth paragraph). 23

Wojciech Sadurski, “Charter and Enlargement”, European Law Journal 8 (2002): 340-62.

Chapter 1

1 It was actually in 1982 that the constitutional amendment creating the Polish Constitutional Tribunal

was passed, but the statute on the Constitutional Tribunal, which established a specific basis for that

body, was only enacted in 1985. The Tribunal began its operations in January 1986. For the sake of

completeness, mention should also be made of the Czechoslovakian Constitutional Court of the

Constitutional Justice in Post-Communist Europe (University of Chicago Press: Chicago, 2000) at 29-

30.2 Darina Malová, “The Role and Experience of the Slovakian Constitutional Court”, in Wojciech

Sadurski, ed., Constitutional Justice, East and West (Kluwer Law International: The Hague, 2002):

349-72 at 351. 3 Id. at 351.

4 See Wojciech Sokolewicz, “S d Konstytucyjny w Rumunii”, in Janusz Trzci ski, ed., S dy konstytu-

cyjne w Europie (Wydawnictwa Trybuna u Konstytucyjnego: Warszawa 1997), vol. 2: 145-74 at 146;

see also Renate Weber, “The Romanian Constitutional Court: In Search of Its Own Identity”, in

Sadurski, supra note 2: 283-308 at 284-85. 5 Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (1991-

94), Sofia, 10 May 2001. 6 Stefan Rozmaryn, quoted in Miros aw Granat, “Droga do s downictwa konstytucyjnego w pa stwach

Europy rodkowej i Wschodniej”, Pa stwo i Prawo no. 12/2001 (vol. 56): 15-24 at 15. 7 Id., quoted in note 6 at 16.

8 Id. at 17.

9 Id. at 19.

10 Id. at 20.

11 Miroslav Cerar, “Slovenia’s Constitutional Court within the Separation of Powers”, in Sadurski, supra

note 2: 213-46 at 213.

The concept of “constitutional traditions common to the Member States” features prominently in the

interwar period, although it was a rather feeble institution; see Herman Schwartz, The Struggle for

ENDNOTES 303

12

Described by Ji í P ibá , “Judicial Power vs. Democratic Representation: The Culture of Constitutio-

nalism and Human Rights in the Czech Legal System”, in Sadurski, supra note 2: 373-94 at 374-75. 13

14 See Kataryna Wolczuk, “The Constitutional Court of Ukraine: The Politics of Survival”, in Sadurski,

supra note 2: 327-48 at 328-31. 15

See http://www.satv.tiesa.gov.lv/Eng/ievads.htm. 16

For details, see http://ccbh.ba/home/?lang=e. 17

The account in this paragraph is based on Alexander Vashkevich, “The Republic of Belarus: The Road

from Past to the Past”, in Andras Sajó, ed., Out of and Into Authoritarian Law (Kluwer Law

International: The Hague, 2003): 265-98. 18

The exceptions are Moldova, Montenegro, Serbia, State Union of Serbia and Montenegro, and the

Ukraine; in these states, solely abstract control by the Constitutional Court is envisaged. In Latvia, the

possibility of concrete review has only recently been established through the constitutional

amendments of 30 November 2000, and, to my knowledge, this has not been taken advantage of by

the courts as yet. In Bulgaria, concrete review can only be initiated by the two top ‘regular’ courts; the

Supreme Court of Cassation and the Supreme Administrative Court; see Art. 150 (2) of the Bulgarian

Constitution. A quasi-concrete control, nevertheless departing from the standard form as characterised

in the main text, exists in Belarus, where any court encountering a statute deemed by it to be

unconstitutional has a duty to decide the case on the basis of the Constitution and then to petition the

Supreme Court, which, in turn, has a duty to petition the Constitutional Court regarding the

(un)constitutionality of the statute. In the Ukraine, there is also an element of “concrete” control;

under Art. 83 of the Statute on the Constitutional Court, when an ordinary judge believes that a law

that he must apply is inconsistent with the Constitution, he should address the Supreme Court, which

may subsequently lodge a formal challenge to that law with the Constitutional Tribunal. There is,

however, no stay of the proceedings granted by the “ordinary” judge, no obligation on the part of the

Supreme Court to lodge a challenge, and the subsequent consideration by the Constitutional Court is

identical to that conducted in the case of any other abstract review. Nevertheless, in the perception of

several judges of the Constitutional Court, this amounts to a form of “concrete” control; interview

with Professor Wolodymir Tychyj, Judge of the Constitutional Court of Ukraine, Kiev, 22 November

2002.19

The exception is Lithuania, where the President can only challenge the constitutionality of Government

acts but no other laws (in particular, he cannot challenge the constitutionality of parliamentary

statutes). In Estonia and Romania the President’s power to initiate review is limited to only

preventative control of statutes, and cannot therefore be used after they enter into force. 20

The exceptions are Croatia (where the government can initiate review of only sub-statutory laws), the

Czech Republic (as in Croatia), and Georgia and Estonia (where the government has no role in the

process of constitutional review). 21

The exception is Estonia.22

In Bulgaria, Latvia, Moldova, Poland and Slovakia.23

In Albania, Latvia, Poland, the Ukraine. In Estonia, the ex post abstract review can be initiated only by

the Legal Chancellor, who is responsible for monitoring legal acts in the country from the point of

view of their constitutionality. The Legal Chancellor, an office similar to the one in Finland, either

calls on the body that passed the (in his view) unconstitutional legislation to rectify it, or he files a

petition to the Constitutional Review Chamber for the act in question to be annulled. In addition,

Estonian constitutional review can also be initiated by the President (as an ex ante review) or, for

concrete review, by ordinary courts. 24

In Belarus, Bulgaria, Latvia, Moldova, Poland, Russia and the Ukraine.25

In Albania and Poland.26

In Russia. In Ukraine, the Parliament of the Autonomous Republic of Crimea also has such a power.27

In Slovenia and Ukraine. 28

In Slovenia. 29

Decision 23/1990 of 31 October 1990. 30

Decision 15/1991 of 13 April 1991. 31

Decision 36/1994 of 24 June 1994.

Discussed in Chapter 9 in this book pp. 237-39.

304 ENDNOTES

32

See Georg Brunner, “Structure and Proceedings of the Hungarian Constitutional Judiciary”, in László

Sólyom & Georg Brunner, Constitutional Judiciary in a New Democracy: The Hungarian

Constitutional Court (University of Michigan Press: Ann Arbor, 2000): 65-102 at 99 n. 40. 33

Oral remarks by Professor László Sólyom, former Chief Justice of the Hungarian Constitutional Court,

Workshop on Constitutional Adjudication in Southern and Western Europe, Fondazione Adriano

Olivetti, Rome, 26 March 2002. 34

Gábor Halmai, “The Hungarian Approach to Constitutional Review: The End of Activism? The First

Decade of the Hungarian Constitutional Court”, in Sadurski, supra note 2: 189-212 at 193. 35

Id. at 81-82. 36

Interview with Professor Vojtech Cepl, Justice of the Constitutional Court of the Czech Republic,

Prague, 22 March 2002. 37

Leszek Garlicki, “Orzecznictwo Trybuna u Konstytucyjnego w 2000 roku”, Przegl d s dowy (2001:9):

77-105 at 85-86.38

Leszek Garlicki, “Orzecznictwo Trybuna u Konstytucyjnego w 1998 roku”, Przegl d s dowy (1999:6):

104-28 at 113. 39

40 See Ma gorzata Masternak-Kubiak, Ustawa o Trybunale Konstytucyjnym (Wydawnictwa Prawnicze

PWN, Warszawa 1998): 48-49. 41

“Trybuna buduje praworz dn Rzeczpospolit ”, Rzeczpospolita, 20th March 2002 at C-2 (remarks by

the Chief Justice of the Constitutional Tribunal, Professor Marek Safjan).42

Id. (remarks by the Chief Justice of the Supreme Court, Prof. Lech Gardocki). 43

Brunner, supra note 32 at 84. He adds, however, that in some exceptional circumstances, constitutional

complaint may be the only avenue available to a citizen, see id. at 84. 44

Halmai, supra note 34 at 204. 45

For a description of this case, and the ensuing attempt to find an institutional compromise, see id. at

204-206.46

Interview with Professor Boris A. Strashun, of the Centre for Analysis of Constitutional Justice at the

Constitutional Court of the Russian Federation, Moscow, 19 November 2001. 47

Suren Avanesyan, “Constitutional Protection for Human Rights in the Russian Federation”, Journal of

East European Law 6 (1999): 437-68 at 462. 48

In Albania, Croatia, the Czech Republic, Hungary, Latvia (since 1 July 2001), Macedonia, Poland,

Russia, Slovenia and Slovakia (although, in the latter, the competencies to consider constitutional

complaints are restricted only to those matters that do not fall under the powers of other courts).49

Interview with Prof. Lucian Mihai, President of the Constitutional Court of Romania, Bucharest, 9

March 2001. 50

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May

2001.51

Interview with Judge Pavlo Jevgrafov of the Constitutional Court of the Ukraine, Kiev, 22 November

2002.52

Apart from Hungary (and in the past, Poland and Russia), such a possibility exists in the statutes on

constitutional courts in Albania, Montenegro and Serbia. 53

Decision no. 37/1992 (V.10) AB of 8 June 1992, reprinted in East European Case Reporter of

Constitutional Law 2 (1995): 27-35. 54

See Brunner, supra note 32 at 85-6. 55

Zdzis aw Czeszejko-Sochacki, Leszek Garlicki & Janusz Trzci ski, Komentarz do ustawy o Trybunale

Konstytucyjnym (Wydawnictwo Sejmowe, Warszawa 1999) at 202. 56

For example, in its Decision K 19/96 of 24 February 1997 the Constitutional Tribunal declared:

“Deciding on its own initiative has an exceptional character and can take place only in cases of

particularly flagrant breaches of the Constitution”, Orzecznictwo Trybuna u Konstytucyjnego, Rok

1997 (C.H. Beck: Warszawa 1998), item 6: 65-77 at 72. 57

Decision U-I-391/96 of 11 June 1998, translation in http://www.us-rs.si/en/casefr.html, Part B.-III. 58

Constitutional Review Court Procedure Act of 1993, Section 4.3, translation in http://www.nc.ee/

english.59

Decision No. 20 of 10 May 1996, reprinted in the East European Case Reporter of Constitutional Law

4 (1997): 57-63, see also http://www.nc.ee/english/const/96/4a9601i.html.

Garlicki, supra note 37 at 86.

ENDNOTES 305

60

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May

2001.61

Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian

Federation, Moscow, 19 November 2001 62

Interview with Professor Cristian Parvulescu, Bucharest, 8 March 2001. 63

Id. 64

Interview with Professor Mihai Constantinescu, Bucharest, 9 March 2001. 65

Id. 66

Id. 67

Interview with Professor Lucian Mihai, President of the Constitutional Court, Bucharest, 9 March 2001. 68

Id. 69

Interview with Mr Horiatiu Dumitru, Bucharest, 10 March 2001 70

Id. 71

72 Decision K 37/97 of 6 May 1998, Orzecznictwo Trybuna u Konstytucyjnego, Rok 1998 (C.H. Beck:

Warszawa 1999): 167-75 at 172.73

Decision 17/95 of 3 October 1995. The background of the decision is well described in Herman

Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago

Press: Chicago 2000) at 176-77. 74

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May

2001.75

In Albania, Bulgaria, Hungary, Russia, Slovakia, the Ukraine. 76

In Poland, until the 1997 Constitution removed this authority. 77

For example, in Hungary the following bodies can make such a request: the Parliament, the President,

any parliamentary committee, the Government, the Chief Justice of the Supreme Court, the Head of

the State Audit Office and the Attorney General. In Russia the range is somewhat narrower: the

President, either chamber of Parliament, the Government and the legislative bodies of the entities that

form part of the Federation. 78

For instance, the German Federal Constitutional Court decides on the interpretation of the Basic Law,

but only in the event of disputes about the competencies of the highest federal bodies. 79

Decision 128/1990 of 18 December 1990. 80

Decision 5/1995 (V.10) AB hat., discussed in “Constitution Watch”, East Europ. Constit. Rev. 4:3

(Summer 1995): 10 at 10-11. 81

Brunner, supra note 32 at 80. 82

For example, on 20 February 1996 the Constitutional Court issued, at the request of President Yeltsin,

an interpretation of the notion of parliamentary immunity. It established that such immunity did not

release parliamentarians from liability for any violations of the law not connected with their official

duties, see “Constitution Watch: Russia”, East Europ. Constit. Rev. 5:1 (Winter 1996): 21-25 at 24. 83

E.g. decision N 1-6/99 of 14 December 1999 regarding the interpretation of the constitutional provision

that Ukrainian is the state language; a decision widely seen as adversely affecting the interests of the

Russian-speaking minority; see Wolczuk, supra note 14 at 338-39. 84

For example, Decision 7/96 of 4 June 1996, summarised in Bull. Const. Case L. 1996 (2): 187-89,

concerning the interpretation of freedom of expression, freedom of the press, and freedom of access to

information; see the discussion in Chapter 6 of this book. 85

Venelin I. Ganev, “The Bulgarian Constitutional Court, 1991-1997: A Success Story in Context”,

Europe-Asia Studies 55 (2003): 597-611 at 600. 86

Interview with Professor Petro F. Martinienko, Dean of the Faculty of Law, International Solomon

University in Kiev, a former judge of the Constitutional Court of the Ukraine, Kiev, 22 November

2002.87

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (1991-

94), Sofia, 10 May 2001. 88

Id. 89

Interview with Professor Lucian Mihai, President of the Constitutional Court, Bucharest, 9 March 2001. 90

Weber, supra note 4 at 293. 91

Id. at 293. 92

Decision W 4/93 of 16 June 1993.

Garlicki supra note 37 at 84.

306 ENDNOTES

93

See Anna M. Ludwikowska, S downictwo konstytucyjne w Europie rodkowo-Wschodniej w okresie

przekszta ce demokratycznych (TNOiK, Torun 1997) at 94. 94

See id. at 97. 95

The exceptions are the courts in Belarus, the Czech Republic, Slovakia and Romania.96

In Moldova and the Ukraine. In Moldova, all revisions of the Constitution must be first endorsed by the

Constitutional Court before being submitted to the legislature (Art. 141 of the Constitution). In the

Ukraine, the Constitutional Court considers proposed amendments to the Constitution (in an ex ante

review) in terms of whether they restrict constitutional rights and freedoms or the independence and

territorial integrity of the Ukraine, because such amendments are prohibited (arts. 157 and 159 of the

Constitution).97

In Albania, Bulgaria, the Czech Republic, Hungary, Poland (but only after the 1997 Constitution),

Russia, Slovakia, and Slovenia.98

In Bulgaria, also the Vice-President. 99

In Bulgaria, the Czech Republic, Hungary, and Slovakia. The procedure of impeachment may only be

initiated by a constitutionally designated body, the Senate (in the Czech Republic) or the lower

chamber of Parliament. In Russia, the Constitutional Court only decides on the legality of the

preliminary phase of the impeachment process. In the Ukraine, the Constitutional Court can only

declare the completion of the constitutional process of impeachment of the President, and in Romania

the Constitutional Court only has a consultative role in the impeachment process. 100

In Albania, Bulgaria, the Czech Republic, Poland, Romania and Slovakia. In contrast, in Hungary a

party may be prohibited by a local court (upon application by the public prosecutor), with an appeal to

the Supreme Court. In Russia this power belonged to the Court on the basis of a constitutional

amendment of the 2 April 1992, and was discontinued after the dissolution of the “First Court” in

1993.101

More on this, in Chapter 3(2). 102

There will be further discussion on this in Chapter 3(3). 103

Different limits may, however, apply: 6 years in Moldova, 8 years in Croatia, 10 years in the Czech

Republic, Latvia and Georgia, 12 years in Slovakia, 15 years in Russia. The 15-year term for Russian

constitutional judges is a recent innovation. During the first stage of the Court's existence, judges were

appointed for an unlimited term with compulsory retirement at the age of 65; in the second stage, a

(non-renewable) tenure of 12 years was established, and extended by a new law of 2001 to 15 years. 104

In Bulgaria, Latvia, Lithuania, Poland, Romania, Russia, Slovakia (although only since a constitu-

tional amendment in 2001), Slovenia and the Ukraine. 105

Eli M. Salzberger & Stefan Voigt, “On the Delegation of Powers: With Special Emphasis on Central

and Eastern Europe”, Constitutional Political Economy 13 (2002): 25-52 at 38. 106

Id. at 38-39. 107

With the exception of Estonia, for the reasons mentioned above, and the “first Court” in Russia, which

now can be seen as an aberration. 108

Leszek Lech Garlicki, “The Experience of the Polish Constitutional Court”, in Sadurski, supra note 2:

265-82 at 271. 109

Interview with Mr Mark Gillis, Prague, 21 March 2002. (Mr Gillies has taught law for several

universities in Prague; from 1999 until 2001, he was the head of the Czech Supreme Court's

Department of Foreign Relations). 110

Interview with Mr Petr Pithart, President of the Senate of the Czech Republic, Prague, 21 March 2002. 111

Interview with Professor Vojtech Cepl, Justice of the Constitutional Court of the Czech Republic,

Prague, 22 March 2002 112

113 As Professor Nenovsky observes, the number of academics has gradually decreased in the Bulgarian

Constitutional Court; in the first Term it had three law professors and two doctors of law, while by

2001 it counted only one law professor (Todor Todorov). Interview with Professor Neno Nenovsky,

former Justice of the Constitutional Court of Bulgaria (1991-94), Sofia, 10 May 2001. 114

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11

May 2001. 115

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria

(1991-94), Sofia, 10 May 2001.

Garlicki, supra note 108 at 271.

ENDNOTES 307

116

Interview with Professor Volodymir Tychyj, judge of the Constitutional Court of the Ukraine and

former Vice-President of the Court, Kiev, 22 November 2002. 117

In Russia, the Federation Council elects the judges from a list submitted by the President; in Slovenia

and Serbia the parliament elects the judges from a group of candidates nominated by the President. 118

In Albania, the President elects judges with the consent of the Assembly; in the Czech Republic, the

President appoints judges with the consent of the Senate. 119

In Bulgaria, four judges are appointed by the National Assembly, four by the President, and four by a

joint meeting of the justices of the Supreme Court of Cassation and the Supreme Administrative

Court; in Latvia, three are appointed by Parliament, two by the Government and two by the Plenum of

the Supreme Council, and, in addition, all have to be confirmed by the Parliament; in Lithuania, the

process of nomination is divided between the President, the Parliament and the Chair of the Supreme

Court, and then three Parliament chooses three from each nominator; in Moldova, two are elected by

Parliament, two by the President and two by the Supreme Council of the Magistracy; in Romania,

three are appointed by the lower chamber of Parliament, three by the Senate and three by the

President; in the Ukraine, six are appointed by the President, six by Parliament and six by the

Assembly of Judges. 120

In Croatia (where the lower chamber elects judges by an absolute majority of votes, on the

recommendation of the upper chamber of Parliament), Hungary (where the Parliament elects the

judges by a two-thirds majority from among the candidates nominated by the parliamentary

nominating committee, in which each parliamentary faction has one candidate) and Poland (where the

lower chamber of Parliament, the Sejm, elects the judges by an absolute majority of votes). 121

Leszek Garlicki, “Trybuna Konstytucyjny w projekcie Komisji Konstytucyjnej Zgromadzenia

Narodowego”, Pa stwo i Prawo 51:2 (1996): 3-19 at 6. 122

123 Id. at 268.

124 Halmai, supra note 34 at 191-92.

125 Sanja Baric, “The Constitutional Court of the Republic of Croatia: Its Institutional Role Within the

System of Government”, in Giuseppe di Vergotini, ed., Giustizia costituzionale e sviluppo

democratico nei paesi dell’Europa Centro-Orientale (G. Giappichelli Editore: Torino, 2000): 115-25

at 117. 126

Interview with Professor Siniša Rodin of the Faculty of Law, University of Zagreb, Zagreb, 7 April

2000.127

For a detailed account of the deal, see “Constitution Watch”, East Europ. Constit. Rev. 9:1/2

(Winter/Spring 2000) at 12. 128

Interview with Professor Yurii S. Shemshuchenko, Director of the Institute of State and Law, National

Ukrainian Academy of Sciences, Kiev, 21 November 2002. 129

Interview with Judge Pavlo Jevgrafov, judge of the Constitutional Court of the Ukraine and former

Vice-President of the Court, Kiev, 22 November 2002. 130

Interview with Professor Petro F. Martinienko, Dean of the Faculty of Law, International Solomon

University in Kiev, former judge of the Constitutional Court of the Ukraine, Kiev, 22 November

2002.131

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11

May 2001 132

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria

(1991-94), Sofia, 10 May 2001. 133

Id. 134

Id. 135

136 Interview with Professor Cristian Parvulescu (Professor of Political Science), Bucharest, 8 March

2001. Although Professor Parvulescu stresses that all the judges of the Constitutional Court have high

legal qualifications, in his opinion “they are not politically independent”, and the process of

appointments is largely controlled by the office of the Presidency and also by the Minister of Justice.

The impact of this is somewhat lower when the Government is based on a coalition (as in 1996-2000)

than when there is a mono-party Government; in the former case, the President has to conduct

negotiations within the coalition. According to Professor Parvulescu, one can identify the “Iliescu

judges” and the “Constantinescu judges” within the current composition of the Constitutional Court

Garlicki, supra note 108 at 268.

Ganev, supra note 85 at 600-601.

308 ENDNOTES

(referring, respectively, to Presidents Ion Iliescu, 1990-1996, and Emil Constantinescu, 1996-2000). It

is also significant for him that the current (at the time of my interview) President of the Court,

Professor Lucian Mihai, was, before his appointment in 1998, a secretary-general of the Chamber of

Deputies (1996-98), “a political function” (in the opinion of Prof. Parvulescu) to which he was

appointed by the then governing National Liberal Party. 137

Leigh Sprague, “The Russian Constitutional Court”, Parker Sch. J.E. Eur. L. 4 (1997): 339-56, at 345.138

Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian

Federation, Moscow, 19 November 2001. 139

Id. 140

He was invited to Moscow (prior to the appointment he was a professional judge in St. Petersburg) to a

series of special meetings with high officials in the personnel office, and was then interviewed by a

“personnel panel”. After his return from holiday he was urged to call immediately a “special number”

at the Kremlin to contact, in the middle of the night, the “Head of Yeltsin’s administration”, who then

announced to him that he was the President's choice; id. 141

“Neutral” is a self-description chosen by Justice Yaroslavtsev when hypothesising about some of the

reasons for his successful appointment, id. 142

82.143

See footnote 18 above. 144

Tom Ginsburg, “Economic Analysis and the Design of Constitutional Courts”, Theoretical Inquiries in

Law 3 (2002): 49-85 at 59. 145

Gábor Halmai, “Who is the Main Protector of Fundamental Rights in Hungary? The Role of the

Constitutional Court and the Ordinary Courts”, in Ji í P ibá , Pauline Roberts & James Young, eds.,

Systems of Justice in Transition: Central European Experiences since 1989 (Ashgate: Aldershot

2003): 50-73 at 66. 146

There are exceptions, however. In Hungary, the Supreme Court actually resisted a proposition (pressed

upon it by the state prosecutor in a specific case before it) that it should consider all legal instruments

relevant to the case, including the Constitution, and that in the process it should be able to set aside

the sub-constitutional provisions inconsistent with the Constitution, see Halmai supra note 146 at 65-

66. The Supreme Court announced on this occasion: “Since no other agency is entitled by the

Constitution to do so, only the Constitutional Court is entitled to state whether a given provision of

substantive or procedural law valid at the time is in contradiction with the Constitution or not”, cited

id. at 66. 147

Discussed in detail by Angela Di Gregorio, “The Evolution of Constitutional Justice in Russia:

Normative Imprecision and the Conflicting Positions of Legal Doctrine and Case-Law in Light of the

Constitutional Court Decision of 16 June 1998”, Review of Central and East Europ. Law 24 (1998):

387-419 at 389-96. 148

Quoted id. at 390. 149

For a discussion of this decision, see id. at 398-401. 150

See the opinions of Constitutional Court Justice Morshchakova expressed in legal periodicals, summa-

rised by Di Gregorio, id. at 394-95. 151

Interview with Professor Boris A. Strashun of the Center for Analysis of Constitutional Justice at the

Constitutional Court of the Russian Federation, Moscow, 19 November 2001. 152

Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian Fede-

ration, Moscow, 19 November 2001. 153

154 Oral remarks by Pedro Cruz Villalon, Justice of the Spanish Constitutional Court, Workshop on

Constitutional Adjudication in Southern and Western Europe, Fondazione Adriano Olivetti, Rome,

25-26 March 2002. 155

According to the Constitution, the justices of the Constitutional Court are appointed by the President of

the Republic with the consent of the Senate. However, the Senate had not been set up by 1996, and so

until it was its role was played by the Chamber of Deputies. 156

Interview with Professor Vojtech Cepl, Justice of the Constitutional Court of the Czech Republic,

Prague, 22 March 2002.

See Ludwikowska, supra note 93 at 186. Regarding Hungarian courts, see Brunner, supra note 32 at

Quoted in Di Gregorio, supra note 147 at 403.

ENDNOTES 309

157

For an account of this controversy, see Pavel Holländer, “The Role of the Czech Constitutional Court:

Application of the Constitution in Case Decisions of Ordinary Courts”, Parker Sch. J.E.Eur. L. 4

(1997): 445-65. 158

Decision IV.US 81/95 of 18 September 1995, http://www.concourt.cz/angl_verze/doc/4-81-95.html.159

160 Interview with Dr Vladimir Sladecek of the Law Faculty, Charles University of Prague, Prague, 23

March 2002 161

162 Id. at 452.

163 Id. at 456-57.

164

165 Decision P. 8/00 of 4 October 2000, full text on file with the author.

166 Janusz Trzci ski, “Orzeczenia interpretacyjne Trybunalu Konstytucyjnego”, Pa stwo i Prawo 57:1

(2002): 3-14 at 9. 167

168 Id. at 89.

169 For a description of this “legal question” and of the Supreme Court’s response (in its decision of 4 July

170 See “Ustawa zasadnicza w s dach powszechnych”, Rzeczpospolita (Warszaw) 5 July 2001 at C-1.

171 Lech Gardocki, “Osi gni cia i spory”, Rzeczpospolita (Warsaw) 15 April 2002 at C-2.

172 Roman Hausner, “Zapytajcie Trybuna ”, Rzeczpospolita (Warsaw) 18 March 2002, http://www.rp.pl/

gazeta/wydanie_020318/prawo/prawo_a_2.html.173

Lech Gardocki, “Czy potrzebna jest wyk adnia Trybuna u Konstytucyjnego”, Rzeczpospolita

(Warsaw) 9 July 2001 at C-1. 174

Rzeczpospolita (Warsaw) 4 June 2001 at C-1. 175

Statement of the Chief Justice of the Polish Supreme Court, Lech Gardocki, quoted in “Trybuna

buduje praworz dn Rzeczpospolit ”, Rzeczpospolita (Warsaw) 20 March 2002 at C-1; see also

“Trybuna przed dorocznym podsumowaniem”, Rzeczpospolita (Warsaw)19 March 2002 at C-2. 176

Id. 177

178

Chapter 2

1 By “quasi guardians” Dahl means the officials charged with the protection of fundamental rights and

interests who are not themselves democratically controlled – such as the judges endowed with the

power to declare legislation unconstitutional. 2 Robert A. Dahl, Democracy and Its Critics (Yale University Press: New Haven, 1989) at 188.

3 Michael S. Moore, “Law as a Functional Kind”, in Robert P. George, ed., Natural Law Theory:

Contemporary Essays (Oxford University Press: Oxford, 1992): 188-242 at 229. 4 Id. 229.

5 Id. 228

6 The 1997 Constitution provided a two-year transitional period during which the decisions of the

Constitutional Tribunal on the unconstitutionality of laws enacted under the old Constitution could be

overridden by parliament; this possibility expired definitively on 17 October 1999. 7 Marek Safjan, “Epitafium dla nieostatecznych orzecze ”, Rzeczpospolita (Warsaw) 4 October 1999 at

C-28 Elsewhere, but still in the context of the same debate, Chief Justice Safjan claimed that the decisions of

the Constitutional Tribunal conclusively put an end to emotional and politically charged debates “by

appealing to objectified legal reasons, not to political criteria”, Marek Safjan, “S d ostateczny”,

Wprost 17 October 1999 at 8 (emphasis added). 9 Quoted by Robert Alexy in “Constitutional Rights, Balancing, and Rationality”, Ratio Juris 16 (2003):

131-40 at 133. 10

James L. Gibson, Gregory A. Caldeira & Vanessa A. Baird, “On the Legitimacy of National High

Courts”, American Political Science Review 92 (1998): 343-58 at 344-45.

See Holländer, supra note 157 at 454.

Holländer, supra note 157 at 450-52.

Garlicki, supra note 37 at 89.

Garlicki, supra note 37 at 89 n. 17.

2001), see Trzci ski, supra note 166 at 12.

Gardocki, supra note 171 at C-2.

See Marek Safjan, “Wyk adnia prawa - u yteczny instrument eliminowania niepewno ci”,

Czeszejko-Sochacki et al, supra note 55 at 155-56.

310 ENDNOTES

11

Id. at 345, emphasis added. 12

Id. at 345. 13

See e.g. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University

Press: Cambridge Mass., 1980): 135-79. 14

See Jeremy Waldron, “Precommitment and Disagreement”, in Larry Alexander, ed., Constitutionalism:

Philosophical Foundations (Cambridge University Press: Cambridge, 1998): 271-99 at 280-81. 15

For an impressive statement and elaboration of the “comparative institutional” thesis, see in particular

Neil K. Komesar, Imperfect Alternatives (The University of Chicago Press: Chicago, 1994). 16

There are also significant cultural factors, eg, the dominant social expectations concerning certain

types of people who are encouraged to stand for election, or to apply for nomination to certain bodies.

These cultural expectations are of course, themselves, partly determined by institutional factors (for

example, by the procedures and formal criteria for election or nomination). 17

Philip Pettit, Republicanism (Oxford University Press: Oxford, 1997): 215-30. 18

See Jon Elster, “Majority Rule and Individual Rights”, in Stephen Shute and Susan Hurley (eds.), On

Human Rights (Basic Books: New York, 1993): 175-216 at 179-80, 192-93. 19

See Jeremy Waldron, Liberal Rights (Cambridge University Press: Cambridge, 1993): 392-421. 20

Often this is the only sense in which “legitimacy” is used, especially when legitimacy of constitutional

(and other) courts is discussed by political scientists; see, e.g., Gibson et al., supra note 10. 21

Bruce Ackerman, The Future of Liberal Revolution (Yale University Press: New Haven, 1992) at 109.

Note that this is Ackerman’s wording, not Sólyom’s. 22

Id. at 143 n. 21 23

See Waldron, supra note 14 at 272-73. 24

Id. at 273. 25

Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press: Chicago,

1981).26

Id., chapter 1. 27

Id. at 8. 28

Id. at 1. 29

Id. at 8. 30

Jürgen Habermas, Between Facts and Norms, trans. William Rehg (Polity Press: Cambridge, 1996) at

262, emphasis in original. 31

As is the case, e.g., in Poland and Hungary. 32

As is the case in all other CEE countries, with the exception of Estonia. For a discussion of the

selection of judges, see Chapter 1(3). 33

For a similar argument with respect to the Supreme Court of the United States, see Christopher L.

Eisgruber, Constitutional Self-Government (Harvard University Press: Cambridge Mass., 2001) at 64-

66.34

For such a conception of the role of the Supreme Court of the United States, see Richard H. Fallon,

“The Supreme Court, 1996 Term – Foreword: Implementing the Constitution”, Harvard Law Review

111 (1997): 54-152 at 144-145.35

Id. at 145, footnotes omitted, emphasis in the original. 36

See, generally, Wojciech Sadurski, “Conventional Morality and Judicial Standards”, Virginia Law

Review 73 (1987): 339-97. 37

Burt Neuborne, “Judicial Review and Separation of Powers in France and the United States”, N.Y.U.

Law Review 57 (1982): 363-442 at 368. 38

Part 7 of the Constitution of the Slovak Republic. 39

Art. 124 of the Constitution of the Slovak Republic. 40

See Zdzislaw Czeszejko-Sochacki, Leszek Garlicki & Janusz Trzci ski, Komentarz do Ustawy o

Trybunale Konstytucyjnym (Wydawnictwo Sejmowe: Warszawa, 1999) at 8, who state that, in Poland,

the majority of authors consider the Constitutional Tribunal as belonging to the judicial branch. 41

Leszek Garlicki, ed., Konstytucja Rzeczypospolitej Polskiej: Komentarz (Wydawnictwo Sejmowe:

Warszawa, 1999) (loose-leaf edition), chapter 8 at 10. 42

Owen Fiss, “Judiciary Panel: Introductory Remarks”, 19 Yale J. Int. L. (1994): 219-221 at 220.43

Ruti Teitel, “Post-Communist Constitutionalism: A Transitional Perspective”, Columbia Human Rights

Law Review 26 (1994): 167-190 at 178.

ENDNOTES 311

44

Ruti Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, Yale Law

Journal 106 (1997): 2009-2080 at 2033 (footnote omitted). 45

“Kelsenian” is herein used as a short-hand to describe the Continental model of abstract and centralised

review. I am however conscious that the model that emerged in Europe after the Second World War,

in particular in Germany, but also in Italy, Spain, France etc, is not a purely “Kelsenian” model,

because it envisaged, among other things, a rights-based scrutiny of constitutionality of laws, and

contained important elements of “positive” legislation. In both these respects, Hans Kelsen expressed

the opposite views when he advocated the establishment of the constitutional court in Austria. 46

Under the 1975 Constitution of Greece (art. 95), all courts have the power not to apply legal provisions

that they consider to be contrary to the Constitution. A diffuse system exists also to a certain degree in

Switzerland (although only the laws of the Cantons, not the federal ones, can be judicially reviewed)

and in Portugal. 47

Cambridge, 1989) at 128-131.48

See Alec Stone Sweet, Governing with Judges (Oxford University Press: Oxford, 2000) at 120-21. 49

More on this in Chapter 1(4). 50

Wiktor Osiaty ski, “Paradoxes of Constitutional Borrowing”, I.CON 1 (2003): 244-68 at 260. 51

See Ackerman, supra note 21 at 108-9.52

Bruce Ackerman, “The Rise of World Constitutionalism”, Virginia Law Review 83 (1997): 771-797 at

776.53

The United Kingdom and the Netherlands have no judicial constitutional review at all, while Denmark,

Ireland, Greece and Sweden have adopted systems bearing resemblance to the US-style model of

decentralised judicial review. 54

Louis Favoreu, “American and European Models of Constitutional Justice”, in David S. Clark, ed.,

Comparative and Private International Law: Essays in Honor of John Henry Merryman on His

Seventieth Birthday (Duncker u. Humblot: Berlin, 1990), p. 110. 55

See, e.g., John Ferejohn & Pasquale Pasquino, “Constitutional Courts as Deliberative Institutions:

Towards an Institutional Theory of Constitutional Justice” in Wojciech Sadurski, ed., Constitutional

Justice, East and West (Kluwer Law International: The Hague, 2002): 21-36 at 31. A leading Russian

constitutional expert used a similar argument when explaining to me why the decentralised system of

review would not work in Russia: the majority of judges, he asserted, are old-fashioned and simply

“do not know how to apply the Constitution”. Interview with Professor Boris A. Strashun, of the

Center for Analysis of Constitutional Justice at the Constitutional Court of the Russian Federation,

Moscow, 19 November 2001. 56

Personal conversation with a judge of the Polish Supreme Court, 16 July 2002. 57

Teitel, supra note 44 at 2032. 58

Stone Sweet, supra note 48 at 37; see also Stephen M. Griffin, American Constitutionalism (Princeton

University Press: Princeton, 1996) at 121.59

See, e.g., Andrzej Wasilewski, “Przedstawianie pyta prawnych Trybuna owi Konstytucyjnemu przez

s dy (art. 193 Konstytucji RP)”, Pa stwo i Prawo 54:8 (1999): 25-39 at 29; Anna M. Ludwikowska,

S downictwo konstytucyjne w Europie rodkowo-Wschodniej w okresie przekszta ce

demokratycznych (TNOiK: Torun, 1997) at 21. 60

On “new constitutionalism” in Europe, contrasted to pre-World War II European constitutionalism, see

Stone Sweet, supra note 48 at 31 and 37-8. 61

Interview with Professor Boris A. Strashun, of the Centre for Analysis of Constitutional Justice at the

Constitutional Court of the Russian Federation, Moscow, 19 November 200. 62

This is not merely a theoretical possibility. Consider the current status of affirmative action, one of the

most contentious issues in American constitutionalism. In 1996 the Court of Appeals for the 5th

Circuit invalidated an affirmative action plan implemented by the University of Texas Law School

and held that the use of race as a factor in university admissions was constitutionally proscribed;

Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). The other circuits follow the 1978 Supreme Court’s

decision Regents of University of California v. Bakke, 438 U.S. 265 (1978), which explicitly permitted

certain forms of race-based preferences in admissions. The Hopwood court argued that it was not

bound by the Bakke precedent because Justice Powell’s opinion (according to the Court) did not

garner a majority (in fact, the central part of Powell’s opinion, though not an opinion in its entirety,

Allan Randolph Brewer-Carías, Judicial Review in Comparative Law (Cambridge University Press:

312 ENDNOTES

was joined by the majority of judges). The Supreme Court denied certiorari in Hopwood, 518 U.S.

1033 (1996). I am grateful to Robert Post for pointing this out to me. 63

Michel Troper & Christophe Grzegorczyk, “Precedent in France”, in D. Neil MacCormick & Robert S.

Summers, eds., Interpreting Precedents: A Comparative Study (Dartmouth: Aldershot, 1997): 103-

140 at 112-13 and 117. 64

See, e.g., Lech Morawski & Marek Zirk-Sadowski, “Precedent in Poland”, in MacCormick &

Summers, supra note 63 at 219-58. 65

Stone Sweet, supra note 48 at 40. 66

Fiss, supra note 42 at 219.67

For a characterisation of the Japanese system of constitutional review as “modelled very much after the

American system of judicial review”, see Itsuo Sonobe, “Human Rights and Constitutional Review in

Japan”, in David M. Beatty, ed., Human Rights and Judicial Review (Kluwer: Dordrecht, 1994): 135-

174 at 138. 68

I develop this argument in chapter 3(1). 69

John C. Reitz, “Political Economy and Abstract Review in Germany, France and the United States”, in

Sally J. Kenney, William M. Reisinger & John C. Reitz, Constitutional Dialogues in Comparative

Perspective (Macmillan: London, 1999): 62-88 at 74-84. 70

In contrast, such a deadline regarding a challenge initiated in the course of concrete review (but not

constitutional complaint) that is, occasioned by a concrete litigation, would clearly be pernicious. A

person has no control over when she can be brought to court under a particular law that she can then

claim unconstitutionally violates her rights! 71

As an example of such a time limit, one might mention the rule in Poland until 1997 that abstract

review of statutes applied only to statutes enacted no earlier than 5 years before the date of the

Constitutional Tribunal’s decision (Art. 24 of the Law of 29 April 1985 on Constitutional Tribunal).

This limit has been abandoned by the new statute on Constitutional Tribunal, adopted 1 August 1997.

One may hypothesise that one reason why this provision was dropped had to do with its very low

practical relevance: in a system of predominantly abstract review, where challenges to laws are most

likely to be launched by the defeated parliamentary minority, it is highly unlikely that laws that have

been on the books for a very long time will be called into question. 72

Reitz, supra note 69 at 80-81. 73

Id. at 81. 74

Id. at 81. See also Lea Brilmayer, “The Jurisprudence of Article III: Perspectives on the ‘Case or

Controversy’ Requirement”, Harvard Law Review 93 (1979): 297-321 at 313. 75

See Stone Sweet, supra note 48 at 80-83 76

See id. at 66-8. 77

The words in quotation marks are from Lea Brilmayer, “A Reply”, Harvard Law Review 93 (1980):

1727-33 at 1732, and they apply not so much to an abstract review initiated by political bodies but to

the idea of public interest litigation launched by “altruistic plaintiffs”. 78

Robert Badinter, quoted in Jean Gicquel, Droit constitutionnel et institutions politiques, 14th edn

(Montchrestien: Paris, 1995), at 767 (emphasis in original). 79

See Reitz, supra note 69 at 81-84. 80

Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker”,

Journal of Public Law 6 (1957): 279-295.81

See Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343 (1977), discussed by

Brilmayer, supra note 77 at 318-19. In this decision, the Supreme Court unanimously accepted the

standing of a state governmental commission composed of representatives of the apple industry (thus

treating it as analogous to a voluntary association) to challenge the constitutionality of a statute

regulating the packaging of apples. This is as clear a case as they have produced in terms of using

concrete review in order to change economic policy. 82

Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, 598, emphasis added. 83

See Charles R. Epp, The Rights Revolution (University of Chicago Press: Chicago, 1998) at 86. 84

Interview with Laszló Sólyom, East Europ. Constitut. Rev. 6:1 (Winter 1997): 71-77 at 72. 85

Andrew Arato, “Constitution and Continuity in the Eastern European Transitions: The Hungarian Case

(part two)”, in Irena Grudzinska-Gross (ed.), Constitutionalism & Politics (Slovak Committee of the

European Cultural Foundation, Bratislava 1993): 271-87 at 271. 86

Interview with Boris Ebzeev, East Europ. Constit. Rev. 6:1 (Winter 1997): 83- 88 at 86.

ENDNOTES 313

87

Martin Shapiro, “The Success of Judicial Review”, in Kenney, Reisinger & Reitz, supra note 69: 193-

219 at 205. 88

See Arato, supra note 85 at 272-3. 89

Spencer Zifcak, “Hungary’s Remarkable, Radical, Constitutional Court”, Journal of Constitutional Law

in Eastern and Central Europe 3 (1996): 1-56 at 27. 90

See, similarly, Wiktor Osiatynski, “Rights in New Constitutions of East Central Europe”, Colum. Hum.

Rts. L. Rev. 26 (1994): 111-166 at 151 n. 185. 91

Lee Epstein, Jack Knight & Olga Shvetsova, “The Role of Constitutional Courts in the Establishment

and Maintenance of Democratic Systems of Government”, Law & Society Review 35 (2001): 117-63. 92

93 Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in

1991-94), Sofia, 10 May 2001. 94

According to Jonathan Macey, structural constitutional rules are “self-executing”, in contrast to

“directives that forbid government officials from doing certain things” (such as, infringing individual

rights), which “rely on an allegiance to vague constitutional principles”; Jonathan R. Macey,

“Transaction Costs and the Normative Elements of the Public Choice Model: An Application to

Constitutional Theory”, Virginia Law Review 74 (1988): 471-518 at 503. 95

“Constitution Watch”, East Europ. Constitut. Rev. 9:1/2 (Winter/Spring 2000) at 23. 96

Id. at 27. 97

See Neuborne supra note 37 at 369, footnote omitted. 98

See Cass Sunstein, “Introduction: The Legitimacy of Constitutional Courts: Notes on Theory and

Practice”, East Europ. Constitut. Rev. 6:1 (Winter 1997) at 61-63. 99

The Polish Constitutional Tribunal recently struck down an amendment to the so-called “lustration law”

on the basis that significant changes to the bill were made by the Senate, which had thus overstepped

its law-making powers; see Decision K 11/02 of 19 June 2002, http://www.trybunal.gov.pl/

100 See Ely, supra note 13.

101 Neil K. Komesar, “Taking Institutions Seriously: Introduction to a Strategy for Constitutional

Analysis”, Univ. of Chicago Law Rev. 51 (1984): 366-446 at 386; see also generally William W. van

Alstyne, “A Critical Guide to Marbury v. Madison”, Duke Law Journal (1969): 1-47 at 23-4. 102

See text accompanying footnote 84 above. 103

Zifcak, supra note 89 at 27, footnote omitted. 104

Arato, supra note 85 at 272.105

See Ely, supra note 13. 106

Decision K. 3/98 of 24 June 1998, Orzecznictwo Trybuna u Konstytucyjnego, Rok 1998 (C.H. Beck:

Warszawa 1999), item 19: 308-71 at 353, translation in East European Case Reporter of Constitu-

tional Law 6 (1999): 130-211. References here are to the Polish text. 107

Id. at 353. See, similarly, cases cited by Jerzy Oniszczuk, Konstytucja Rzeczypospolitej Polskiej w

orzecznictwie Trybuna u Konstytucyjnego (Zakamycze: Kraków, 2000) at 161, translation in East

European Case Reporter of Constitutional Law 6 (1999): 130-211. 108

See Eisgruber, supra note 33 at 165-167 and 169-175. 109

Decision K. 3/98 supra note 106 at 353. 110

Id. 111

Id. at 354. 112

Dissenting opinions by Justice Rymarz, at 363-64, and Justice Zdyb, at 365-71. 113

Dissenting opinion by Justice Zdyb, at 370. 114

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in

1991-94), Sofia, 10 May 2001. 115

See, e.g. Jean-Pierre Massias, Droit constitutionnel des États d’Europe de l’Est (Presses universitaires

de France: Paris, 1999) at 163. 116

Jürgen Habermas, The Postnational Constellation: Political Essays, trans. Max Pensky (Polity:

Cambridge, 2001) at 122. 117

Jeremy Waldron, “Rights and Majorities: Rousseau Revisited”, in John W. Chapman & Alan Wert-

heimer, eds, Majorities and Minorities: Nomos XXXII (New York University Press: New York, 1990):

44-75 at 59, footnote omitted. 118

Griffin, supra note 58 at 116, footnote omitted.

OTK/teksty/otkpdf/2002/K_11_02.pdf, discussed in Chapter 9, p. 247.

For discussion of this case, see Chapter 9, p. 248.

314 ENDNOTES

119

Id. at 116, emphasis added. 120

Id. at 116. 121

Dahl, supra note 80 at 282. 122

Alec Stone Sweet, “Constitutional Dialogues: Protecting Rights in France, Germany, Italy and Spain”,

in Kenney, Reisinger & Reitz, supra note 69: 8-41 at 27. 123

Of course, for the purposes of the theory of minority protection against the tyranny of majority it is not

necessary (or even proper) to understand “minority” in statistical terms but rather in terms of under-

representation of a particular category of citizens in the political system. 124

125 Vello Pettai, “Democratic Norm Building and Constitutional Discourse Formation”, paper presented at

the workshop “Rethinking the Rule of Law in Post-Communist Europe”, European University

126 See Kataryna Wolczuk, “The Constitutional Court of Ukraine: The Politics of Survival”, in Sadurski,

supra note 55: 327-48 at 338-39. 127

See, respectively, Decision no. K. 26/96 of 28 May 1997 (abortion), Decision K. 11/90 of 30 January

1991 (religious teaching in schools), and Decision K. 17/93 of 7 June 1994 (broadcast law). All these

three decisions are discussed in Chapter 6.

Chapter 3

1 See Chapter 1.2.

2 Oral remarks by Professor László Sólyom, former Chief Justice of the Hungarian Constitutional Court,

Workshop on Constitutional Adjudication in Southern and Western Europe, Fondazione Adriano

Olivetti, Rome, 26 March 2002. 3 John C. Reitz, “Political Economy and Abstract Review in Germany, France and the United States”, in

Sally J. Kenney, William M. Reisinger & John C. Reitz, Constitutional Dialogues in Comparative

Perspective (Macmillan: London, 1999): 62-88 at 67. 4 Laurence H. Tribe, American Constitutional Law, 2

nd edition (The Foundation Press: Mineola N.Y.,

1988) at 153, footnote omitted. 5

Chicago & Grant Trunk Ry. V. Wellman, 143 U.S. 339 (1892). This maxim was established in the

context of expressing the Court’s antipathy to “friendly suits”, the sole purpose of which is obtaining

a judicial opinion. 6

7 Bruce Ackerman, The Future of Liberal Revolution (Yale University Press: New Haven, 1992) at 108.

8 Jürgen Habermas, Between Facts and Norms, trans. William Rehg (Polity Press: Cambridge, 1996) at

261, italics in original. 9 Id.

10 5 U.S. (1 Cranch) 137 (1803).

11 Stephen M. Griffin, American Constitutionalism (Princeton University Press: Princeton, 1996) at 96.

125 U.S. 177.

13Neal Devins, Shaping Constitutional Values (Johns Hopkins University Press: Baltimore, 1996) at 13,

italics added. 14

Martin Shapiro, “The Success of Judicial Review”, in Sally J. Kenney, William M. Reisinger & John C.

Reitz, eds., Constitutional Dialogues in Comparative Perspective (Macmillan: London, 1999): 193-

219 at 211. 15

See William W. van Alstyne, “A Critical Guide to Marbury v. Madison”, Duke Law Journal (1969): 1-

47 at 23-24. 16

As Jeremy Waldron recently observed, see “Eisgruber’s House of Lords”, University of San Francisco

Law Review 37 (2002) 89-114 at 89. 17

See, e.g. Dickerson v. United States, 530 U.S. 428 (2000). In this decision, the Court found

unconstitutional, by a 7-2 majority, a provision adopted by Congress that the admissibility of

suspects’ statements in criminal cases turns solely on whether they were made voluntarily, regardless

of whether the suspects had received so-called Miranda warnings before being interrogated. In his

dissent, Justice Scalia warned that, until this law is repealed [by Congress], he would “continue to

apply it in all cases where there has been a sustainable finding that the defendant’s confession was

voluntary”, id. at 434.

Art. 5 of the Law on Constitutional Review Chamber Procedure of 5 May 1993.

Bulgarian Constitutional Court decision of 22 April 1992, discussed in Chapter 8, pp. 220-22.

Institute, Florence, 22-23 February 2002. More on this in Chapter 8, pp. 216-18.

ENDNOTES 315

18

Alexander M. Bickel, The Least Dangerous Branch (Bobbs-Merrill: Indianapolis, 1962) at 113-16. 19

Id. at 114, emphasis added. 20

See Alec Stone Sweet, Governing with Judges (Oxford University Press 2000) at 90. 21

Frothington v. Mellon, 262 U.S. 447, 488-9 (1923). In this case, a taxpayer challenged the constitu-

tionality of a statute (Maternity Act of 1921) that provided federal funds to state programs to reduce

infant mortality, on the basis that it harmed her by increasing her tax liability. The Supreme Court

held the action non-justiciable. 22

Fritz W. Scharpf, “Judicial Review and the Political Question: A Functional Analysis”, Yale Law

Journal 75 (1966): 517-97 at 532-33, footnote omitted. 23

Who does not necessarily subscribe to the general position that I defend in this and in the following

paragraphs.24

Pasquale Pasquino, “Lenient Legislation: The Italian Constitutional Court” (unpublished manuscript,

June 1999). It should be added that the Italian Constitutional Court also conducts abstract review only

with respect to the regional authorities’ challenges to national laws and, vice versa, the national

authorities’ objections to regional laws. However, an overwhelming majority of Court decisions are

taken in the course of a concrete review, and Pasquino’s argument described in the main text refers

only to this form of review. 25

Id. at 8. 26

Id. at 6. 27

Bickel supra note 18 at 115, emphasis added. 28

Id. at 115. 29

Michael S. Moore, “Law as a Functional Kind”, in Robert P. George, ed., Natural Law Theory:

Contemporary Essays (Oxford University Press: Oxford, 1992): 188-242 at 230. 30

For criticism of this view, see Waldron, supra note 16 at 100-103. 31

Tom Ginsburg, “Constitutional Courts in New Democracies: Understanding Variation in East Asia”,

Global Jurist Advances 2 (2002), available at http://www.bepress.com/gj/advances/vol2/iss1/art4/ at

17.32

Oral remarks by Pedro Cruz Villalon, Justice of the Spanish Constitutional Court, Workshop on

Constitutional Adjudication in Southern and Western Europe, Fondazione Adriano Olivetti, Rome,

25-26 March 2002. 33

Art. 144 (a) of the 1991 Constitution. 34

See Wojciech Sokolewicz, “S d konstytucyjny w Rumunii”, in Janusz Trzci ski, ed., S dy

konstytucyjne w Europie, vol. 2 (Wydawnictwa Trybuna u Konstytucyjnego: Warszawa, 1997): 145-

74 at 161. 35

Id. at 166. 36

Art. 107 of Estonian Constitution. 37

Art. 142. 38

See Leszek Garlicki, “Orzecznictwo Trybuna u Konstytucyjnego w 1998 roku”, Przegl d s dowy

(1999:6): 104-28 at 109. 39

Decision No. 71-44 DC. 40

See Alec Stone, The Birth of Judicial Politics in France (Oxford University Press: New York, 1992) at

209-10.41

For example, in 1982, the Council struck down the Socialist government’s nationalisation bill on the

grounds that its provisions for compensation violated property rights; it went on to state ways in

which the government could save the bill by employing different formulas for the valuation of the

companies concerned; the government then wrote the formulas into the law, and eventually the

revised bill survived a second referral. The revision raised the cost of the nationalisations by 25

percent; see Stone supra note 40 at 241. 42

In one of its most famous decisions, in 1986, the Council invalidated a proposed Press Law on the basis

that it provided insufficient guarantees for pluralism in media (a concept not mentioned in any

constitutional text) and thwarted the Chirac government’s attempt to repeal the limits on press

ownership; Decision no. 86-210 DC of 29 July 1986, see John Bell, French Constitutional Law

(Oxford University Press: Oxford, 1992) at 327-30. 43

Laws may be referred to the Council by the President, the Prime Minister, the Presidents of the

chambers of the Parliament and sixty members of either chamber of the Parliament. In practice,

however, it is almost solely the instrument of parliamentarians. From 1974 (when the constitutional

316 ENDNOTES

amendment expanded the right of referral to any sixty deputies or senators) until 1987, out of 202

referrals, 196 were made by parliamentarians, and only 6 by other authorised persons; see Stone,

supra note 40 at 58. 44

Stone, supra note 40 at 244. 45

Art. 128 (2) of the Constitution. 46

See art. 4(2) of the 1993 Law on Constitutional Review Court Procedure. 47

See Attila Agh, “The Permanent ‘Constitutional Crisis’ in the Democratic Transition: The Case of

Hungary”, in Joachim Jens Hesse & Nevil Johnson, eds, Constitutional Policy and Change in Europe

(Oxford University Press: Oxford, 1995): 296-326 at 316. 48

Andras Mink, “Interview with László Sólyom, President of the Hungarian Constitutional Court”, East

Europ. Constit. Rev 6:1 (1997): 71-77 at 72 49

Decision 16/1991 of 20 April 1991, reprinted in László Sólyom & Georg Brunner, Constitutional

Judiciary in a New Democracy: The Hungarian Constitutional Court (University of Michigan Press:

Ann Arbor, 2000): 151-158, at 155. 50

See Anna M. Ludwikowska, S downictwo konstytucyjne w Europie rodkowo-Wschodniej w okresie

przekszta ce demokratycznych (TNOiK: Torun, 1997) at 60; Gabor Halmai, Comment, “The

Constitutional Court of the Republic of Hungary”, East European Case Reporter of Constitutional

Law 1 (1994) 116 at 118. 51

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in

1991-94), Sofia, 10 May 2001. 52

See Mink, supra note 48 at 72. 53

Agh, supra note 47 at 316. 54

Interview with Professor Vojtech Cepl, Justice of the Constitutional Court of the Czech Republic,

Prague, 22 March 2002. 55

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May

2001.56

See William L. Landes & Richard A. Posner, “The Economics of Anticipatory Adjudication”, Journal

of Legal Studies 223 (1994): 683-719 at 685. Note that Landes and Posner write about binding

adjudication in concrete cases (in which the courts are asked to pronounce on the legality or otherwise

of a proposed course of action by an individual party) but their argument applies, mutatis mutandis, to

any advisory role of courts in law-making. 57

See id. 686. 58

Stone Sweet, supra note 20 at 75-79. 59

This concern was expressed by Vice-President of the Constitutional Court of the Russian Federation,

see Tamara Morshchakova, Panel discussion, in Konstytucja w s u bie demokracji; Constitution in

Service of Democracy (The International Centre for Development of Democracy Foundation, Cracow,

March 10-12, 1995): 135-38 at 137.60

Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian Fede-

ration, Moscow, 19 November 2001. 61

Id. 62

The rule was established in 1793, when the Court refused to provide an opinion, sought by President

George Washington, concerning the obligations of the 1778 Franco-American Treaty.63

The technical grounds for this distinction are that state courts (including state Supreme Courts) are not

controlled by Art. III of the Constitution of the United States, which describes the jurisdiction of

federal courts in terms of cases and controversies. Landes and Posner provide an economic

explanation for the rejection of advisory opinions at the federal level, but not necessarily at the state

level, see Landes & Posner, supra note 56 at 712. 64

Robert J. Pushaw, “Justiciability and Separation of Powers: A Neo-Federalist Approach”, Cornell Law

Review 81 (1996): 393-512 at 443. See also Abner J. Mikva, “Why Judges Should Not Be

Advicegivers: A Response to Professor Neal Katyal”, Stanford Law Review 50 (1998): 1825-32. 65

See Quill v. Vacco, 80 F.3d 716, 738-43 (2d Cir. 1996) (Calabresi, J., concurring), see also U.S. v.

Then, 56 F.3d 464, 468-69 (2d Cir. 1995) (Calabresi, J., concurring). 66

80 F.3d at 738. 67

Alexander Bickel & Harry H. Wellington, “Legislative Purpose and the Judicial Process”, Harvard

Law Review 71 (1957) 1, 34, quoted in 56 F.3d at 469 (Calabresi, J., concurring). For a recent

ENDNOTES 317

endorsement of this idea, see Michael C. Dorf, “The Supreme Court, 1997 Term – Foreword: The

Limits of Socratic Deliberation”, Harvard Law Review 112 (1998): 4-83 at 69-70. 68

56 F.3d at 469. 69

See id. at 469. 70

See Dorf, supra note 67 at 70. 71

80 F.3d at 742, footnote omitted. 72

The possibility of an override did not apply when the preliminary abstract review was initiated by the

President. This exemption of decisions of unconstitutionality taken as a result of Presidential initiative

from the parliamentary override was the result of the Constitutional Tribunal’s own interpretation of

its powers; see Decision W 1/95, discussed in Leszek Garlicki, “Orzecznictwo Trybuna u

Konstytucyjnego w 1995 roku”, Przegl d s dowy (1996:7-8): 110-38 at 116. 73

The discontinuation came into effect in November 1999; during the transitional period 1997-1999 the

Parliament could, legally, override the laws adopted under the rule of the old Constitution. Of the

74 See, e.g, Irena Grudzinska-Gross, “Interview with Professor Andrzej Zoll, Chief Justice of the Polish

Constitutional Tribunal”, East Europ. Constit. Rev 6:1 (Winter 1997): 77-8 at 78: “The main problem

is the ability of the Sejm to overrule Tribunal decisions….”. Elsewhere, Professor Zoll has argued that

the retention of the parliament’s power to override the Tribunal’s decisions after the changes of 1989

was a remnant of a totalitarian system. His successor as Chief Justice, Professor Marek Safjan,

declared that the end to the possibility of an override was “a victory of the Constitution over politics”,

Marek Safjan, “Epitafium dla nieostatecznych orzecze ”, Rzeczpospolita (Warsaw) 4 October 1999 at

C-2.75

Interview with Professor Lucian Mihai, President of the Constitutional Court, Bucharest, 9 March 2001. 76

Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian

Federation, Moscow, 19 November 2001. 77

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in

1991-94), Sofia, 10 May 2001. 78

Art. 79 (3). For an expression of mild scepticism as to the “absoluteness” of constitutional

entrenchment of rights in German Basic Law, see Ackerman, supra note 7 at 144, n. 21: “It remains

unclear how much the “absolute” character of German entrenchment is merely smoke and mirrors –

and a good thing, too, for clarity comes only after a severe constitutional crisis”. 79

Francisco Rubio Llorente, quoted by Stone Sweet, supra note 20 at 59. 80

Art. 89. 81

Art. 57 (1). 82

See, similarly, Francis Hamon, Michel Troper, Georges Burdeau, Droit constitutionnel (L.G.D.J.: Paris,

2001, 27th ed.) at 41.

83 There is also an alternative, and more burdensome, form of constitutional amendment available in

France, which requires an approval by a referendum. This is when the amendment procedure is not

proposed by the Government with the President’s approval (Art. 89). 84

Jon Elster, Ulysses Unbound (Cambridge University Press: Cambridge 2000) at 100. 85

Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian

Federation, Moscow, 19 November 2001 86

See, e.g., Sergio Bartole, “Concluding Remarks”, in Giuseppe de Vergottini, Giustizia costituzionale e

sviluppo democratico nei paesi dell’Europa centro-orientale (Torino: G. Giappichelli Editore, 2000):

355-64 at 364; Hamon et al., supra note 82 at 743. 87

Stone Sweet, supra note 20 at 89. 88

Art. 70.1 of the Constitution of Hungary, see Ludwikowska, supra note 50 at 65 n. 32. 89

Herman Schwartz, “The New East European Constitutional Courts”, in A. E. Dick Howard (ed.),

Constitution Making in Eastern Europe (Woodrow Wilson Center Press: Washington D.C., 1993):

163-208 at p. 176. 90

Art. 147 of the Romanian Constitution. 91

Interview with Professor Cristian Parvulescu, Bucharest, 8 March 2001. 92

Id. 93

Interview with Professor Mihai Constantinescu, Bucharest, 9 March 2001. 94

Id. 95

Interview with Professor Lucian Mihai, President of the Constitutional Court, Bucharest, 9 March 2001.

eleven cases of a successful override, three took place in this transitional period.

318 ENDNOTES

96

Id. 97

Interview with Mr Horiatiu Dumitru, Bucharest, 10 March 2001 98

More specifically, it applies only to the provisions included in section 2 of the Charter (“Fundamental

Freedoms”) and sections 7 to 15 (“Legal Rights” and “Equality Rights”). 99

Michael J. Perry, “The Constitution, the Courts, and the Question of Minimalism”, Northwestern

University Law Review 88 (1993): 84-164 at 158. 100

Mark Tushnet, “Policy Distortion and Democratic Debilitation: Comparative Illumination of the

Countermajoritarian Difficulty”, Michigan Law Review 94 (1995): 245-301 at 299. 101

Jeremy Webber, “Institutional Dialogue between Courts and Legislatures in the Definition of

Fundamental Rights: Lessons from Canada (and elsewhere)”, in Wojciech Sadurski, ed.,

Constitutional Justice, East and West (Kluwer Law International: The Hague, 2002): 61-99 at 95; see

also James Allan, “Bills of Rights and Judicial Power – a Liberal’s Quandary”, Oxford Journal of

Legal Studies 16 (1996): 337-352 at 350 n. 59. 102

Martin H. Redish, “Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the

Exceptions Clause: An Internal and External Examination”, Villanova Law Review 27 (1982): 900-

928.103

See Tushnet, supra note 100 at 287. 104

Neal Devins, Shaping Constitutional Values (The Johns Hopkins University Press: Baltimore, 1996). 105

Id. at 7. 106

Id. at 55. 107

See generally, L.G. Ratner, “Majoritarian Constraints on Judicial Review: Congressional Control of

Supreme Court Jurisdiction”, Villanova Law Review 27 (1981): 929-58 at 930-32. 108

In 1916 and 1919, Congress attempted to strike at child labour indirectly, using the interstate

commerce and taxation powers; however, the Supreme Court invalidated both of these attempts, in

Hammer v. Dagenhart, 247 U.S. 251 (1918), and in Child Labor Tax Case, 259 U.S. 20 (1922),

respectively; in 1938 Congress returned to the original 1916 bill struck down in Hammer, and a

unanimous Court approved the child labour legislation in 1941. 109

For an example of such behaviour in the American context, see J.R. Macey, “Thayer, Nagel, and the

Founders’ Design: A Comment”, Northwestern University Law Review 88 (1993): 226-40 at 235.

Chapter 4

1 Alec Stone Sweet, Governing with Judges (Oxford University Press 2000) at 61.

2 Rumyana Kolarova, “Bulgaria: A Self-Restricting Court”, East Europ. Constit. Rev. 2:2 (Spring 1983):

48-50 at 49. 3 Id. at 49.

4US v. Manuel Then, 56 F.3d 464, 466 (2d Cir. 1995).

5 Id. at 469.

6 For a detailed description, see Gábor Halmai & Kim Lane Scheppele, “Living Well Is the Best Revenge:

The Hungarian Approach to Judging the Past”, in A. James McAdams (ed), Transitional Justice and

the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997): 155-84 at

7 Decision 48/1998 of 23 November 1998, described in Bull. Const. Case Law 3 (1998): 421-22; see also

8 Decision U-I-13/94 of 21 January 1994; English translation on file with the author.

9 Martin Shapiro, “Some Conditions for the Success of Constitutional Courts: Lessons from the U.S.

10 Irena Grudzinska-Gross, “Interview with Professor Andrzej Zoll, Chief Justice of the Polish Constitu-

tional Tribunal”, East Europ. Constit. Rev. 6:1 (Winter 1987): 77-78 at 78. 11

Interview with Prof. Lucian Mihai, President of the Constitutional Court, Bucharest 9 March 2001. 12

See Keith E. Whittington, “Legislative Sanctions and the Strategic Environment of Judicial Review”,

I.CON 1 (2003): 446-474 at 462-3. 13

Stone Sweet, supra note 1 at 52-55. 14

Id. at 54.

174-7; see also Chapter 9 in this book, pp. 242-43.

Chapter 6.1, pp. 133-34.

Experience”, in Wojciech Sadurski, ed., Constitutional Justice, East and West (Kluwer Law

International: The Hague, 2002): 37-60 at 38; see also Stone Sweet, supra note 1 at 75.

ENDNOTES 319

15

Stephen M. Griffin, American Constitutionalism: From Theory to Politics (Princeton University Press:

Princeton 1996) at 98. 16

Stone Sweet, supra note 1 at 53-54. 17

Renate Weber, “Constitutionalism as a Vehicle for Democratic Consolidation in Romania”, in Jan

Zielonka, ed., Democratic Consolidation in Eastern Europe, vol. I: Institutional Engineering (Oxford

University Press: Oxford 2001): 212-42 at 227. 18

Petr Kopecký, “The Czech Republic: From the Burden of the Old Federal Constitution to the

Constitutional Horse Trading among Political Parties”, in Zielonka, ed., supra note 17: 319-46 at 343. 19

Interview with Mr Petr Pithart, President of the Senate of the Czech Republic, Prague 21 March 2002. 20

In this respect the Czech Senate is different from the Polish and Romanian Senates, where the term of

office for Senators is the same as for members of the lower chamber: four years. 21

Decision of the Czech Constitutional Court no. 13/99 of 15 September 1999; see Jiri Priban, “Judicial

Power vs. Democratic Representation: The Culture of Constitutionalism and Human Rights in the

Czech Legal System”, in Sadurski, ed., supra note 9: 373-94 at 387 22

Such a suggestion was made by the President of the Senate; Interview with Mr Petr Pithart, President of

the Senate of the Czech Republic, Prague 21 March 2002. It is also interesting to note that the

President of the Constitutional Court, Zdenek Kessler, filed a dissenting opinion to this judgment. 23

Interview with Mr. Mark Gillis, Prague 21 March 2002. 24

Stone Sweet, supra note 1 at 55. 25

Id. at 55. 26

27

28 “Constitution Watch: Bulgaria”, East Europ. Constit. Rev. 4:2 (Spring 1995): 5-7 at 7.

29 Venelin I. Ganev, “Interview with Constitutional Court Justices Todor Todorov and Tsanko

30 See Anna M. Ludwikowska, S downictwo konstytucyjne w Europie rodkowo-Wschodniej w okresie

przekszta ce demokratycznych (TNOiK, Torun 1997) at 180. 31

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in

1991-94), Sofia 10 May 2001. 32

Id. 33

Alina Mungiu-Pippidi, “Interview with President of the Romanian Constitutional Court, Ion Muraru”,

East Europ. Constit. Rev. 6:1 (Winter 1997): 78-83 at 81. 34

Leigh Sprague, “The Russian Constitutional Court”, Parker Sch. J.E. Eur. L. 4 (1997): 339-56 at 349. 35

Id. 36

Interview with Professor Boris A. Strashun, of Center for Analysis of Constitutional Justice at

Constitutional Court of the Russian Federation, Moscow, 19 November 2001. 37

Interview with Professor Andrey Nikolaevich Medushevsky, constitutional expert of the Institute of

Law and Public Policy, Moscow, 19 November 2001 38

Id. 39

Id. 40

Oral remarks by Dr Pedro Magalhães, Workshop on Constitutional Adjudication in Southern and

Western Europe, Fondazione Adriano Olivetti, Rome, 25 March 2002. 41

For a recent plea against the use of the notion of judicial activism, see Aharon Barak, “The Supreme

Court, 2001 Term – Foreword: A Judge on the Judging: The Role of a Supreme Court in a

Democracy”, Harvard Law Review 116 (2002): 16-162 at 126-27. 42

These features are pointed to by Ganev in the context of his discussion of whether the Bulgarian

Constitutional Court can be dubbed as “activist”, see Venelin I. Ganev, “The Bulgarian Constitutional

Court, 1991-1997: A Success Story in Context”, Europe-Asia Studies 55 (2003): 597-611 at 606. 43

See East European Case Reporter of Constitutional Law 3 (1996), no. 1. 44

See Chapter 6.1.45

Id. 46

See Chapter 9.2.47

See Chapter 9.3.48

For example, the Hungarian Constitutional Court struck down important aspects of a number of laws

that were meant to constitute a package of austerity measures introduced by the Government in 1995;

see e.g. decision 43/1995 of 30 June 1995 on social security benefits, reprinted in László Sólyom &

As is the case in e.g. Bulgaria, Latvia and Ukraine, see chapter 1, note 119.

Hadjistoichev”, East Europ. Constit. Rev. 6:1 (Winter 1997): 65-71 at 66.

As is the case if Hungary, see chapter 1, note 120.

320 ENDNOTES

Georg Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court

(University of Michigan Press: Ann Arbor, 2000) at 323-32.49

See, e.g., the decision of the Polish Constitutional Tribunal; no. K 8/97 of 16 December 1997 striking

down a number of provisions of the tax statute of 26 July 1991, reprinted in Orzecznictwo Trybuna u

Konstytucyjnego, Rok 1997 (Warszawa: C.H. Beck 1998): 545-59. 50

In Slovenia, the Constitutional Court decided Case No. U-I-206/97, annulling on 17 June 1998 part of a

law on the amendments to the Law on Foreigners. The amendments would have changed the required

period before an immigrant could apply for permanent resident status from three to eight years. See

“Constitution Watch: Slovenia”, East Europ. Constit. Rev. 7:3 (Summer 1998): 36-37.51

On 13 April 1991, the Hungarian Constitutional Court declared the use of uniform personal

identification numbers unconstitutional, decision 15/1991, reprinted in Sólyom & Brunner, supra note

48 at 139-50.52

The Croatian Constitutional Court invalidated, in 1998, a provision of the 1993 Code on Equating

Retirement Incomes on the basis that the code demanded that pensions increase relative to changes in

the cost of living rather than relative to the increase of average incomes, see “Constitution Watch:

Croatia”, East Europ. Constit. Rev. 7:3 (Summer 1998): 8-9 at 9.53

Decision K. 19/96 of 24 February 1997, in Orzecznictwo, supra note 49: 65-77 at 72. 54

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia 11 May

2001. A similar presumption of constitutionality is in practice adopted by the Russian Constitutional

Court; Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian

Federation, Moscow, 19 November 2001.55

E.g. in Poland, decision of the Constitutional Tribunal K 17/93 of 7 June 1994. 56

Pavel Holländer, “The Role of the Czech Constitutional Court: Application of the Constitution in Case

Decisions of Ordinary Courts”, Parker Sch. J.E.Eur. L. 4 (1997): 445-65 at 450-52. 57

Id. at 452. 58

For a description of this case, see Mark Gillis, “Constitutionalism in the Czech Republic: An

investigation of Two Major Aspects – The Infusion of Constitutional Principles into the Remainder of

the Legal Order and the Generally Binding Nature of Constitutional Court Decisions”, Journal of

Constitutional Law in Eastern and Central Europe 5 (1998): 105-245 at 139-42. 59

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in

1991-94), Sofia 10 May 2001. 60

Decision no. 64/1991 (XII 17) AB of 17 December 1991, East European Case Reporter of

Constitutional Law 1 (1994) 27. 61

E.g. Decision of Polish Constitutional Tribunal no. K 22/95 of 29 May 1996 in Orzecznictwo

Trybuna u Konstytucyjnego, Rok 1996 vol. 1 (Warszawa: C.H. Beck, 1996): 106-21 at 120. 62

See Decision of Polish Constitutional Tribunal no. K 13/95 of 24 September 1996, in Orzecznictwo

Trybuna u Konstytucyjnego, Rok 1996 [Case Law of the Constitutional Tribunal, 1996], vol. 2

(Warszawa: C.H. Beck, 1996): 79-105 at 104. 63

Judgment of the Constitutional Court of the Czech Republic no. 46/96 of 13 November 1997, quoted in

Holländer, supra note 56 at 463 n. 23.64

E.g. Decision of Polish Constitutional Tribunal no. K 19/96 of 24 February 1997, supra note 53 at 72-

73.65

Id. at 72-73. 66

See, e.g., Decision of Polish Constitutional Tribunal no. K. 2/98 of 23 March 1999, in Orzecznictwo

68 Andras Mink, “Interview with László Sólyom, President of the Hungarian Constitutional Court”, East

Europ. Constit. Rev. 6:1 (Winter 1997): 71-76 at 72. 69

Quoted by Gábor Halmai, “Comment: The Constitutional Court of the Republic of Hungary”, East

European Case Reporter of Constitutional Law 1 (1994) 116 at 116. 70

Id.71

Decision 23/1990 of 31 October 1990, reprinted in Sólyom & Brunner, supra note 48 at 118-38.72

Id. at 133 (Sólyom, P., concurring).

Trybuna u Konstytucyjnego w 1999 r. vol. 1 (Warszawa: TK 1999): 176-81 at 178 emphasis added. 67 James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law”, Harv.

L. Rev. 7 (1893): 17-156 at 144.

ENDNOTES 321

73

Decision no. K 26/96 of 28 May 1997, in Orzecznictwo Trybuna u Konstytucyjnego, Rok 1997

(Warszawa: C.H. Beck, 1998): 173-246. This decision was reprinted in East European Case Reporter

of Constitutional Law 6 (1999): 38-129. 74

The new Constitution was adopted by the National Assembly on 2 April 1997, subjected to the

constitutional referendum on 25 May 1997, promulgated by the President on 16 July 1997, and

entered into force on 17 October 1997. 75

Jan Wole ski, “Glosa do orzeczenia TK z 28 V 1997, K 26/96”, Pa stwo i Prawo 53:1 (1998): 88-98 at

91.76

Id at 91. 77

Id. 78

Id 79

See T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing”, Yale L. J. 96 (1987) 943-

1005 at 987. 80

Enzo Cheli & Filippo Donati, “Methods and Criteria of Judgment on the Questions of Rights to

Freedom in Italy”, in David M. Beatty, ed., Human Rights and Judicial Review (Kluwer: Dordrecht

1994): 227-65 at 261. 81

Resolution U-I-121/97 of 23 May 1997, reprinted in East European Case Reporter of Constitutional

Law 4 (1997): 279-303. 82

Id. at 288, italics added. 83

Id. at 286.

Chapter 5

1 See in particular Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978, 2

nd ed.) chapters

4 and 5; A Matter of Principle (Harvard University Press, 1985), chapters 1 and 2; Law’s Empire

(London: Fontana, 1986), pp. 373-79; Freedom’s Law (Oxford University Press, 1996), pp. 1-38, 352-

72.2

Freedom’s Law, supra note 1 at 12. 3 See e.g. Dworkin’s critique of City of Richmond v. Croson, 488 U.S. 469 (1988) (striking down an

affirmative action plan) id. at 158; Webster v. Missouri Reproduction Services, 992 U.S. 490 (1989)

(upholding restrictions on the availability of abortion), id. at 60-71; Buckley v. Valeo, 424 U.S. 1

(1976) (striking down limits on expenditure in an election campaign) in Sovereign Virtue (Harvard

University Press, 2000) at 351-385; Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding a state anti-

sodomy statute), id. at 454-55, Washington v. Glucksberg, 521 U.S. 702 (1997) and Vacco v. Quill,

521 U.S. 793 (1987) (upholding state statutes prohibiting doctor-assisted suicide), id. at 453-73. 4

Freedom’s Law, supra note 1 at 352. 5 At times he admits to a negative record but he quickly announces that the positive decisions far

outweigh the negative ones; see e.g. Law’s Empire, supra note 1 at 375-76. 6 See Neal Devins, Shaping Constitutional Values (Baltimore: The Johns Hopkins University Press,

1996), pp. 16-17 and 32; Neal Devins, “The Democracy-Forcing Constitution”, Michigan Law Review

97 (1999): 1971-93 at 1987-88; Stephen M. Griffin, American Constitutionalism (Princeton

University Press, 1996) at 116-17. 7 Earl Warren was Chief Justice in 1953-1969, Warren Earl Burger in 1969-1986, and William H.

Rehnquist since 1986. Roger B. Taney was the Court’s Chief Justice in 1836-1854, and he authored

the Court’s opinion in Dred Scott v. Sanford, 60 U.S. (17 How.) 393 (1857). This decision affirmed

the right to own a slave as a constitutional right, prohibited Congress from preventing the spread of

slavery into the free states and territories, and denied Africans in America the status of citizenship. 8 In Texas v. Hopwood, 78 F.3d 932 (5

th Cir. 1996) a federal Court of Appeals held a Texas university

affirmative-action policy to be unconstitutional. The Supreme Court subsequently refused to hear the

university’s appeal, Texas v. Hopwood, 518 U.S. 1033 (1996). Note, however, that more recently the

Supreme Court upheld, on very narrow grounds and by a 5-4 majority, race-conscious preferences in

university admissions (in Grutter v. Bollinger, 539 U.S. 306 (2003) while at the same time striking

down a “quota-based” affirmative action admissions system (in Gratz v. Bollinger, 539 U.S. 244

(2003).

322 ENDNOTES

9 This seems to be Dworkin’s view: “we would have more to regret if the Court had accepted passivism

wholeheartedly: southern schools might still be segregated, for example”, Law’s Empire, supra note 1

at 375. 10

Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999) at

129-54.11

Freedom’s Law, supra note 1 at 34. 12

Id. at 35. 13

Dworkin, supra note 3 at 189, see also id. at 357. 14

First put forward in Jeremy Waldron, “A Rights-Based Critique of Constitutional Rights”, Oxford

Journal of Legal Studies 13 (993): 18-51; and then developed in Jeremy Waldron, Law and

Disagreement (Oxford: Oxford University Press, 1999), especially chapters 10-13. 15

Waldron, “A Rights-Based Critique”, supra note 14 at 42.16

See id. at pp. 44-5; James Allan, “Bills of Rights and Judicial Power – A Liberal’s Quandary”, Oxford

Journal of Legal Studies 16 (1996): 337-52 at 349-50. 17

Griffin, supra note 6 at 123.18

Waldron, “A Rights-Based Critique”, supra note 14 at 50, emphasis added. 19

See Neil K. Komesar, Imperfect Alternatives (The University of Chicago Press, 1994), pp. 56, 79-81;

Bruce A. Ackerman, “Beyond Carolene Products”, Harvard Law Review 98 (1985): 713-46 at 718-

19.20

John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard

University Press, 1980). 21

Waldron, Law and Disagreement, supra note 14 at 295-96. 22

See Laurence Tribe, “The Puzzling Persistence of Process-Based Constitutional Theories”, Yale Law

23 See, e.g., Articles 18.2 and 21.2.6 of the Broadcast Law in Poland of December 29, 1992, upheld as

constitutional by the Constitutional Tribunal on 7 June 1994; see chapter 6 below. 24

Waldron, Law and Disagreement, supra note 14 at 222. 25

See also Cécile Fabre, “The Dignity of Rights”, Oxford Journal of Legal Studies 20 (2000): 271-282 at

pp. 275-6. 26

Tushnet, supra note 10 at 57-70. 27

Id. at 137. 28

“Legislators may define their jobs as excluding considerations of the Constitution precisely because the

courts are there. The judicial overhang might make the Constitution outside the courts worse than it

might be”, id. at 58. 29

For the United States, see Devins, “The Democracy Forcing Constitution”, supra note 6 at 1985.30

This basically applies only to those few cases of constitutional courts that can act on their own

initiative, and that have the power of identifying unconstitutional legislative omissions (such as the

Hungarian Constitutional Court). 31

Dworkin, Freedom’s Law, supra note 1 at 31. 32

See John Rawls, Political Liberalism (New York: Columbia University Press, 1993) at 144-68. 33

Dworkin, Taking Rights Seriously, supra note 1 at 85. See also Dworkin, A Matter of Principle, supra

note 1 at 24 and 70; Sovereign Virtue, supra note 3 at 208. 34

Owen Fiss, “The Forms of Justice”, Harvard Law Review 93 (1979): 1-58 at 10 35

Michael S. Moore, “Law as a Functional Kind”, in Robert P. George, ed., Natural Law Theory:

Contemporary Essays (Oxford: Oxford University Press, 1992): 188-242 at 231. 36

Freedom’s Law, supra note 1 at 31, emphasis added. For a powerful critique, see Waldron, Law and

Disagreement, supra note 14 at 289-91; see also Cass R. Sunstein, The Partial Constitution (Harvard

University Press: Cambridge Mass. 1993) at 145-46. 37

Christopher L. Eisgruber, “Is the Supreme Court an Educative Institution?”, NYU Law Review 67

(1992), 961-1032 at 1003, footnote omitted. Note that this observation by Eisgruber is not made in the

context of a discussion on rights-related reasoning by courts. 38

Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford

University Press, 1996). 39

For a similar argument formulated as a criticism of Christopher Eisgruber’s theory of judicial review

(developed in Christopher L. Eisgruber, Constitutional Self-Government (Harvard University Press:

Journal 89 (1980): 1063-1080, pp. 164-65.

ENDNOTES 323

Cambridge Mass., 2001)) see Jeremy Waldron, “Eisgruber’s House of Lords”, University of San

Francisco Law Review 37 (2002) 89-114 at 90-99. 40

Eisgruber, supra note 39 at 58. In the text accompanying the quoted words, Eisgruber focuses on life

tenure and guaranteed salary as factors guaranteeing the disinterestedness of US Supreme Court

justices.41

Abner J. Mikva, “Why Judges Should Not Be Advicegivers: A Response to Professor Neal Katyal”,

Stanford Law Review 50 (1998): 1825-32 at 1829. 42

Waldron, Law and Disagreement, supra note 14 at 307.

Chapter 6

1 Art. 54 (1).

2 Art. 30.

3 Jerzy Oniszczuk, Konstytucja Rzeczypospolitej Polskiej w orzecznictwie Trybuna u Konstytucyjnego

(Zakamycze: Kraków, 2000), p. 236. According to Catherine Dupré, by “importing” the law

developed by German Constitutional Court, the Hungarian CC used the rights and principles

associated with human dignity as a “modern substitute for natural law”, see Catherine Dupré,

“Importing Human Dignity from German Constitutional Case Law”, in Gabor Halmai, ed., The

Constitution Found? The First Nine Years of Hungarian Constitutional Review on Fundamental

Rights (Indok: Budapest 2000): 215-26 at 220-22.4 Decision no. 19/97 of 21 November 1997, summarized in Bull. Const. Case L. 3 (1997): 357-58.

5 Art. 4 (2).

6 Decision 8/1993 of 27 February 1993, E. Europ. Case Rep. 1 (1994): 243-44.

7 Art. 2.

8 Art. 54 (1).

9 The distinction is less sharp in case-law practice than in theory. While in the Hungarian constitution

“human dignity” is expressly stated as a “right”, one commentator notes that “Hungarian judges are

coming round to the widely held view that human dignity, described as ‘source-law’ or ‘parent-law’

in Hungarian case-law, is the source of other constitutional rights, that it is the basis of other rights

and, indeed, of the constitutional system itself”, Catherine Dupré, “The Right to Human Dignity in

Hungarian Constitutional Case Law”, in The Principle of Respect for Human Dignity (Council of

Europe Publishing: Strasbourg 1999): 68-79 at 76. 10

Decision SK 20/98 of 1 June 1999, Orzecznictwo Trybuna u Konstytucyjnego TK w 1999, cz. 1

(Wydawnictwa Trybuna u Konstytucyjnego, Warszawa 2000): 353-70. 11

Decision U. 5/97 of 19 May 1998, Orzecznictwo Trybuna u Konstytucyjnego, Rok 1998 (C.H.Beck,

Warszawa 1999): 195-210. 12

Art. 47. 13

Art. 51. 14

Decision U. 5/97, supra note 11 at 204. 15

For details, see Agata Fijalkowski, “The Abolition of the Death Penalty in Central and Eastern Europe”,

Tilburg Foreign Law Review 9 (2001): 62-83 at 72-73. 16

Not a member of Council of Europe. 17

See http://conventions.coe.int/Treaty/EN/cadreprincipal.htm. 18

See, e.g., Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Uni-

versity of Chicago Press: Chicago, 2000) at 89. 19

See Fijalkowski, supra note 15 at 63. 20

Belarus (article 24), Georgia (article 15), Moldova (article 24), Russia (article 20), Montenegro (article

21) and Serbia (article 14) [note that, hereinafter, the name of a country followed by the number of an

article refers to the relevant provision of the constitution of that country]. 21

The words in quotation marks are taken from the Constitution of Belarus, art. 24. 22

Constitution of Georgia: “[C]apital punishment before its full abrogation may be envisaged by the

organic law…” (art. 15 (2), emphasis added); Constitution of Moldova: “Until its final prohibition,

capital punishment may be applied…” (art. 24 (3), emphasis added). 23

http://www.web.amnesty.org/rmp/dplibrary.nsf/index?openview. 24

Namely, the constitutions of Croatia (art. 21); Charter of Rights of the Czech Republic [hereinafter

referred to as Czech Charter] (art. 6); Macedonia (art. 10); Romania (art. 22); Slovenia (art. 17);

Slovakia (art. 15).

324 ENDNOTES

25

Decision No. 23/1990 of 31 October 1990; translated in East European Case Reporter of Const. Law

1 (1994): pp. 177-205, and in László Sólyom & Georg Brunner, Constitutional Judiciary in a New

Democracy: The Hungarian Constitutional Court (University of Michigan Press: Ann Arbor, 2000)

at 118-138. 26

Sólyom & Brunner, id. at 118. 27

See Anna M. Ludwikowska, S downictwo konstytucyjne w Europie rodkowo-Wschodniej w okresie

przekszta ce demokratycznych (TNOiK: Toru 1997) at 129. 28

29 László Sólyom, “Introduction to the Decisions of the Constitutional Court of the Republic of Hungary”,

in Sólyom & Brunner, supra note 25 at 6, emphasis added. 30

Sólyom, P. concurring, see the text of the opinion in Sólyom & Brunner, supra note 25 at 125. 31

Section V of the Opinion of the Court, id. at 122. 32

Section IV of the Opinion of the Court, id. at 122. 33

Dissent by Schmidt, J., id. at 123. 34

Id. at 136-8. 35

Id. at 133. 36

Art. 6 (1). Similarly Slovakia art. 15 (1). 37

Art. 55 (1). 38

Kim Lane Scheppele, “Women’s Rights in Eastern Europe”, East Europ. Constit. Rev. 4:1 (Winter

1995): 66-69 at 68. 39

Decision 64/1991 of 17 December 1991, translation reprinted (excerpts) in Sólyom & Brunner, supra

note 25 at 178-199. 40

Comment to decision 64/1991 by Sólyom in Sólyom & Brunner, supra note 25 at 178. 41

Decision 64/1991 at 193-95. 42

Id. at 184. 43

Id. at 187. 44

Id. at 187. 45

Id. at 188. 46

Id. at 188. 47

Decision 48/1998 of 23 November 1998, described in Bull. Const. Case Law 3 (1998): 421-22. 48

“Constitution Watch: Hungary”, East Europ. Constit. Rev. 7:4 (Fall 1998): 15-18 at 17. 49

I am grateful to Renata Uitz of Central European University in Budapest for this information. 50

Decision U. 8/90 of 15 January 1991. 51

The two judges who formed the majority, Professors Andrzej Zoll and (the late) Tomasz Dybowski,

never made a secret of their deep religious beliefs. 52

Typed text of the Decision U.8/90, on file with the author, p. 3. 53

Id. pp. 5-6. 54

In Polish: “izba lekarska” corresponds to the doctors’ self-regulatory body. 55

Decision of 7 October 1992, U.1/92. 56

Typed text of Decision of 7 October 1992, U.1/92, on file with the author, at 6. 57

Decision no. K 26/96, reprinted in East European Case Reporter of Constitutional Law 6 (1999) 38-

129, and in Polish Law Journal 6 (2001): 229-329. 58

59 Proposals to include the words “from the moment of conception” to a right to life provision had

frequently been made in the constitution-drafting process, and ultimately rejected. As one academic

commentator noted: “We therefore have had access to an authentic interpretation”, Jan Wole ski,

“Glosa do orzeczenia TK z 28 V 1997, K 26/96”, Pa stwo i Prawo 53:1 (1998): 88-98 at 91. 60

The only cases that the Tribunal upheld as legislatively permitted abortion were those justified on

strictly defined medical grounds (because of threat to mother’s health, or the genetic defects of the

foetus) or resulting from rape. 61

Wole ski, supra note 59 at 91.62

Women’s Rights Centre, “Women’s Rights in the Constitution of Poland”, Polish Legal Journal 6

(2001): 87-104 at 101. 63

Id. at 101. 64

Russia art. 14. 65

Czech Republic art. 2 (1); Lithuania art. 43 (7).

See Chapter 4.4, p. 101.

Chapter 4.4, pp. 101-103.

ENDNOTES 325

66

Leszek Lech Garlicki, “Perspectives on Freedom of Conscience and Religion in the Jurisprudence of

Constitutional Courts”, Brigham Young Univ. L. Rev. (2001): 467-510 at 479. 67

Hungary art. 60 (3); Slovenia art. 7 (1), Russia art. 14 (2); Bulgaria art. 13 (2).68

Garlicki, supra note 66 at 476.69

Art. 25 (2). 70

Art. 25 (3). 71

Wojciech Sadurski, Moral Pluralism and Legal Neutrality (Kluwer: Dordrecht, 1990), chap. 7. 72

Croatia art. 41 (1); Hungary art. 60 (3); Latvia art. 99; Russia art. 14; Slovenia art. 7; Ukraine art. 35

[note that, hereinafter, a name of a country followed by a number of an article refers to the provision

of the constitution of that country]; Charter of Human and Minority Rights and Civil Liberties of the

State Union of Serbia and Montenegro [hereinafter referred to as Serbia and Montenegro Charter] art.

27.73

Czech Charter art. 2 (1); Estonia art. 40 (2); Lithuania art. 43 (7); Slovakia art. 1. One minor departure

from the separation principle in the Lithuanian Constitution is the statement that the State shall

recognize marriages registered in Church, art. 38 (4). 74

Bulgaria art. 13 (3); Georgia art. 9. 75

Moldova art. 31 (4); Romania art. 29 (5). 76

Montenegro art. 11. 77

Serbia art. 41. 78

Albania art. 10 (4); Poland art. 25 (3). 79

See http://www.lrkt.lt/2000/r000613.htm. 80

Art. 25 (2). 81

Decision K11/90 of 30 January 1991, discussed in Leszek Garlicki, “Przegl d orzecznictwa Trybuna u

Konstytucyjnego w 1991 roku”, Przegl d S dowy (1991, no. 11-12): 43-63 at 59-60. 82

The separate opinion by Judge Dzia ocha concluded that the regulation would be constitutional but only

if decided in a statutory form by the Parliament, K 11/90, typed decision on file with the author, at

62.83

K 11/90 at 38. 84

Decision U. 12/92 of 20 April 1993. 85

But see Constitutions of Georgia (art. 19), Latvia (art. 99) and Romania (art. 29) where the right is

formulated in a fairly basic form. 86

Lithuania art. 26 (5); Moldova art. 35 (9); Poland art. 48; Romania art. 29 (6); Slovenia art. 41. 87

Albania art. 24 (3); Estonia art. 42; Poland art. 53 (7); Slovenia art. 41; Montenegro art. 34; Serbia and

Montenegro Charter art. 26. 88

Ten Constitutions containing such an article are constitutions of Albania art. 24 (3); Belarus art. (31);

Bulgaria art. 37; Czech Republic art. 15 (1); Lithuania art. 26(3); Poland art. 53 (6); Romania (art.

29); Russia art. 28; Ukraine art. 35. 89

See, e.g., Czech Republic art. 16 (1); Hungary art. 33 (2); Poland art. 53 (2). 90

Albania art. 10 (6); Czech Republic art. 16 (2); Lithuania art. 43 (3); Moldova art. 31 (2); Romania art.

29 (3); Slovakia art. 24 (3); Montenegro art. 11; Serbia art. 41; Serbia and Montenegro Charter art. 27. 91

Croatia art. 41(2); Lithuania art. 43(3); Macedonia art. 19(3); Serbia art. 41. 92

Hungary, Macedonia and Montenegro. 93

With the exception of Georgia, Moldova, Romania and Serbia.94

With the exception of Moldova and Romania. 95

Belarus, Bulgaria, Lithuania, Poland and Russia. 96

Moldova and Romania. 97

Decision of 16 February 1999, SK 11/98, in OTK 1999, part I, poz. 5, at 81-96. 98

Id. at 93. 99

Id. at 93. 100

Decision U.br.223/97, of 24 December 1998, Bull. Const. Case Law 1998 (3): 487-88, MKD-1998-3-

009.101

Decision U.br.114/99, of 10 November 1999, Bull. Const. Case Law 1999 (3): 464-65, MKD-1999-3-

010.102

Poland art. 85. 103

Slovakia art. 25. See also Croatia art. 47, Czech Charter art. 15 (3), Estonia Art. 47, Russia Art. 59,

Slovenia Art. 123.

326 ENDNOTES

104

Hungary art. 70H, Lithuania art. 139. 105

Belarus art. 57, Bulgaria art. 59. This is indirectly stated also in three constitutions that mention that

service alternative to military service (thus noting such a possibility) shall not be considered to be

forced labor: Romania art. 39, Moldova art. 44 (2), Ukraine art. 43. 106

Decision IV.US 81/95 of 18 September 1995, http://www.concourt.cz/angl_verze/doc/4-81-95.html.107

Art. 31 (2): “No one may again be tried for an act for which he was already sentences and for which a

final court judgment was passed”. 108

Czech Charter art. 15 (3). 109

Decision IV.US 81/95 of 18 September 1995. 110

Decision Pl.US 18/98, of 2 June 1999, see Bull. Const. Case Law 1999 (1): 44-45, CZE-1999-007. 111

Decision Pl.US 19/98, Bull. Const. Case Law 1999 (1): 39-40, CZE-1999-1-003. 112

Decision Pl.US 18/95 of 24 May 1995, the original text in http://www.concourt.sk/S/nal_uzn/

1995/15_95s.htm.113

Article 25(2) of the Slovak Constitution: "No one must be forced to perform military service if this

runs counter to his conscience or religious belief. The details will be specified in a law." 114

Art. 24. 115

Decision no. U-I-20/1992, decided 18 February 1998, summarized in Bull. Const. Case Law (1) 1998,

CRO-1998-1-004.116

Decision U-I-48/94 of 25 May 1995, at http://www.us-rs.si/en/casefr.html. 117

Art. 123.118

Section 7 of Decision U-I-48/94. 119

This is the case of 17 out of 22 constitutions of the region, namely: Bosnia and Herzegovina art 8 of

the European Convention of Human Rights; Bulgaria art. 32; the Czech Charter art. 7; Estonia art. 26;

Latvia art. 96; Macedonia art. 25; Moldova art. 28; Poland art. 47; Romania art. 26; Russia art. 23;

Slovakia art. 19; Slovenia art. 35; the Ukraine art. 32; Serbia and Montenegro Charter art. 24;

Montenegro (art. 20 and Serbia art. 18.120

Czech Charter art. 7 (1). 121

Moldova (art. 28).122

Albania art. 36; Bosnia and Herzegovina art. 8 of the ECHR; Belarus art. 28; Bulgaria art. 34; Croatia

art. 36; the Czech Charter art. 13; Estonia art. 43; Georgia art. 20; Latvia art. 96; Macedonia art. 17;

Moldova art. 30; Poland art. 49; Romania art. 28; Russia art. 23; Slovakia art. 22; Slovenia art. 37;

Ukraine art. 31; Serbia and Montenegro Charter art. 24; Montenegro art. 30; Serbia art. 19.123

Czech Charter art. 13. 124

125Croatia art. 37; Czech Charter art. 10; Macedonia art. 18; Slovenia art. 38 and Serbia art. 20.

126 Art. 37 (1).

127 Belarus art. 50 (1): “Everyone shall have the right to preserve his ethnic affiliation, and equally, no

one may be compelled to define or indicate his ethnic affiliation”. 128

Article 48 of the Serbia and Montenegro Charter: “No one shall be obliged to reveal his/her national

affiliation”. Also present in the constitutions of: Russia art. 26, as well as Montenegro art. 34 and

Serbia art. 49. 129

130 Decision 19/97, of 21 November 1997, summarized in Bull. Const. Case Law 1997 (3): 357-358,

BUL-1997-3-004.131

Decision no. 4 of 4 November 1993, translated in East Europ. Case Rep. 2 (1995): 141-47.132

Art. 33 of the Constitution. 133

Decision 27/96 of 27 June 1996, http://www.cecl.gr/RigasNetwork/databank/Jurisprudence /FYROM/

Jur_fyrom.htm, also summarized in Bull. Const. Case Law 1996 (2) at 286-87, MKD-96-2-005. 134

Decision U-I-25/95, of 27 November 1997, at http://www.us-rs.si/en/casefr.html. 135

Id., para. 57. 136

Id, paras. 53-54. 137

Id. para. 83. 138

Decisions U-I-158/95 and U-I-144/96 of 2 April 1998, at http://www.us-rs.si/en/casefr.html. 139

Decision 15/1991 of 13 April 1991, reprinted in Sólyom & Brunner, supra note 25 at 139-50 140

Id. at 140. 141

Id. at 149.

Constitution of Moldova art. 30.

This chapter, section 1, pp. 128-29.

ENDNOTES 327

142

Sólyom, “Introduction”, supra note 25 at 9. 143

Decision no. 46/1995, see “Constitution Watch: Hungary”, East Europ. Constit. Rev. 4:3 (Summer

1995): 10-13 at 12. 144

“Constitution Watch: Hungary”, East Europ. Constit. Rev. 2:2 (Spring 1993):7-8 at 8. 145

William J. Prosser, “Privacy [a legal analysis]”, in Ferdinand D. Schoeman (ed.) Philosophical

Dimensions of Privacy (Cambridge University Press: Cambridge 1984): 104-55. 146

Decision PL.US43/95, of 10 September 1996, summarized in Bull. Const. Case Law 1996 (3): 404-

405, SVK-96-3-006. It should be mentioned that the right to privacy is one of three independent

grounds of the Court's decision, the other two being the right to equality before the law and the

principle of independence of the judiciary. 147

Art. 19(2). 148

Albania art. 38, Bosnia and Herzegovina para. 3, Bulgaria art. 35 (1), Poland art. 52 (1) and Slovenia

art. 32. In addition, whilst not expressly stated in the provision enshrining the right to freedom of

movement and residence, the Constitutions of the Czech Republic art. 42 (2) and Slovakia art. 52 (2)

grant all rights to foreigners, unless this is expressly excluded (which was not done here). 149

Croatia art. 32 (1); Estonia art. 34; Georgia art. 22(1); Hungary art. 58 (1); Latvia art. 97; Russia art.

27 (1), and the Ukraine art. 33. 150

Belarus art. 30, Lithuania art. 32 (1), Macedonia art. 27 (1), Moldova art. 27 (1), Montenegro art. 28,

Romania art. 25, Serbia art. 17. 151

The exception is the Constitution of Montenegro, and note that the Constitution of Albania only

contains the right to leave the country. 152

The Constitutions of Belarus (art. 30), Croatia (art. 32), Lithuania (art. 32), Macedonia (art. 27),

Moldova (art. 27), Romania (art. 25(2)), Serbia (art. 17). 153

The Constitutions of Bosnia and Herzegovina Art 2 and 3 of the 4th Protocol to ECHR, Bulgaria art.

35, Czech Rep art. 14, Estonia art. 35, Georgia art. 22, Hungary art. 58(1) and 69(2), Latvia art. 98,

Poland art. 52, Russia art. 27(2), Slovakia art. 23 and Ukraine art. 33. The Constitution of Slovenia

art. 32 is phrased somewhat differently in that it states that everyone may leave and everyone may

return. However, it fits more into this category (everyone may leave but only citizens may enter)

because it allows for entry by aliens to be limited by law without putting any restrictions on when or

how the law may do this. Thus, it seems that the Constitutional right of entry for aliens is very weak. 154

Art. 14 of the Czech Charter. 155

Decision no. Pl.US 25/97 of 13 May 1998, summarized in Bull. Const. Case Law 1998 (2): 213-14,

CZE-1998-2-007.156

Act no.123/1992 on the Residence of Foreign Nationals. Apart from the prohibition of residence

provision, the Court was also asked to examine, and eventually struck down, another provision of the

same law, under which the filing of an appeal against the ban on residence did not have a suspensive

effect on the decision that had been made. This was found to be contrary to various constitutional

principles of fair trial. 157

Decision no. 3-4-1-9-11998 of 25 November 1998, http://www.nc.ee/english/const/98/4a9809i.html.

The law in question was the Police Service Act of 1998, Articles 15 and 17. 158

Id. 159

Decision no. 139 of 14 December 1994, http://www.cecl.gr/RigasNetwork/databank/Jurisprudence/

romania/Jur_romania.htm.160

No. 50 of 12 August 1994. 161

Article 25 (1) of the Constitution: “The right of free movement within the national territory and abroad

is guaranteed. The law shall lay down the conditions for the exercise of this right”. 162

Article 49 of the Constitution states that law may restrict rights “only if absolutely unavoidable, as the

case may be, for: the defence of national security, public order, health, or morals, or the citizens’

rights and freedoms. As required for conducting a criminal investigation; and for the prevention of the

consequences of a natural calamity or extremely grave disaster”. 163

Decision No 47 of 1993. 164

Interview with Mr Horatiu Dumitru (a private lawyer at the time of the interview), Bucharest, 10

March 2001. 165

Art. 49 (2) of the Constitution. 166

Decision of 15 January 1998, see http://ks.rfnet.ru./english/codicese.htm.

328 ENDNOTES

167

Suren Avanesyan, “Constitutional Protection for Human Rights in the Russian Federation”, Journal of

East European Law 6 (1999): 437-68 at 452. 168

Decisions of 25 April 1995, of 4 April 1996, see Jean-Piere Massias, Droit constitutionnel des États

d'Europe de l'Est (Presses Universitaires de France: Paris, 1999) at 387, and of 2 February 1998, the

Russian text of the decision on file with the author. 169

Interview with Ms Ekaterina Gezenkhadze, counsellor at the Constitutional Court of Russian

Federation, 19 November 2001. 170

The only exception is Romania, which confines the general applicability of constitutional rights and

freedoms to “all citizens” only (art. 15 (1)) and in a separate article promises to aliens and stateless

persons living in Romania a “general protection of person and assets, as guaranteed by the

Constitution and other laws”, it then goes on to spell out whether particular constitutional rights are

granted to “all persons” or to “every citizen”. 171

Art. 37 (1). 172

Art. 37 (2). Similarly Moldova art. 19 (1), Russia art. 62 (3), Bulgaria art. 26 (2), Belarus art. 11,

Macedonia art. 29 (1), Slovenia art. 13, Ukraine art. 26. 173

Art. 19. 174

Art. 32 (1). Similarly: Latvia, Czech Charter, Slovakia, Hungary,175

Estonia art. 9 (1), Serbia and Montenegro Charter (article 3); Croatia art. 15 (1).176

A representative example of such a provision can be found in the constitution of Lithuania, Article 33:

“(3) A citizen may not be prohibited from returning to Lithuania. (4) Every Lithuanian person may

settle in Lithuania”. The other examples are: Croatia art. 32 (2); Czech Charter art. 14; Estonia art.

36; Georgia art. 22; Hungary art. 69; Latvia art. 98; Lithuania art. 32; Romania art. 25; Slovakia art.

23 (4) and Serbia art. 17. 177

Lithuania art. 33 (2); Serbia art. 48. 178

Albania art. 59 (1) (but note that this “right” is formulated as a goal of state policy in the Albanian

constitution) and Russia art. 40 (3). The Russian Constitution, to be sure, formulates a “right to a

home” as a right of “everyone” (art. 40 (1)) but the goes on to specify the right of “low income

citizens” to state provided free or low-rent accommodation, art. 40 (3). 179

Croatia art. 44, Czech Charter art. 21, Georgia art. 29, Latvia art. 101, Lithuania art. 33, Slovakia art.

30.180

Albania, Hungary, Romania and Serbia. 181

The right to assembly is limited to citizens in the constitutions of Croatia art. 42; Lithuania art. 36;

Montenegro art. 39 and Serbia art. 43. The right of association restricted to citizens: Croatia art. 43;

Lithuania art. 35; Romania art. 37; Montenegro art. 40. 182

See the constitutions of Latvia art. 97; Lithuania art. 32; Montenegro art. 28 and Serbia art. 17. 183

Croatia art. 57; Czech Charter art. 30; Estonia art. 28; Hungary art. 70 E; Lithuania (article 52);

Romania art. 43; Slovakia art. 35(3); Montenegro art. 55 and Serbia art. 39. Albania art. 52 and Latvia

art. 109 extend this protection to all people.184

Albania art. 55; Croatia art. 58; Czech Charter art. 31; Lithuania art. 53; Slovakia art. 40. 185

Czech Charter art. 33; Georgia art. 35; Hungary art. 70 F; Serbia art. 32; and, in relation to higher

education, Lithuania art. 41. 186

For example, art. 35(1) of Georgia's Constitution: “Each citizen has the right to education. Freedom of

choice in education is guaranteed”. 187

For example, art. 33 of the Czech Charter, states: “(1) Everyone has the right to education. School

attendance shall be obligatory for the period specified by law. (2) Citizens have the right to free

elementary and secondary school education …” [my italics]. 188

Bulgaria art. 22; Lithuania art. 47 (1); Romania art. 41; Russia art. 36; Slovenia art. 68 (2); Croatia art.

48 (3); Estonia art. 32 (3); Macedonia art. 31. 189

Art. 69 (2), emphasis added. 190

Art. 44, both emphases added. 191

There is no right to vote guaranteed in the sparse constitution of Bosnia and Herzegovina. 192

Bulgaria art. 42 (1).193

This example is from art. 34 (3) Lithuanian constitution. 194

Decision 18/98 of 15 October 1998, summarised in Bull. Constit. Case Law 3 (1998): 460-62, SVK-

1998-3-010.

ENDNOTES 329

195

Decision Pl. US 25/96, translated in E. Europ. Case Reporter 5 (1998): 159-75, see also

http://www.concourt.cz/angl_verze/doc/p-25-96.html.196

Decision 2/1992 of 30 June 1992, translated in E. Europ. Case Reporter 2 (1995): 229-36. 197

Art. 8 (1): “Pluralism in Romanian society is a condition and a safeguard of constitutional democracy”. 198

Art. 8 (2): “Political parties may be constituted and pursue their activities in accordance with the law.

They contribute to the definition and expression of the political will of the citizens, while observing

national sovereignty, territorial integrity, the legal order and the principles of democracy”. 199

Decision U-I-106/95 of 25 January 1996, summarised in Bull. Constit. Case Law 1996 (1): 74-77,

SLO-96-1-002.200

Decision no. 16/1994 of 25 March 1994, East Europ. Case Rep. 1 (1994): 245-46. 201

Decision no. 2/97 of 12 March 1997, http://www.cecl.gr/RigasNetwork/databank/Jurisprudence/

jurisprudence_main.htm.202

Decision numbers 03/3600-97, 03-3808-97, 1-12/98 of 26 January 1998, summarised in Bull. Constit.

Case Law 1998 (1): 146-48. 203

Decision no. 2/1992 of 30 June 1992, East Europ. Case Reporter 2 (1995): 229-36. 204

Art. 49 (1). 205

The exceptions being the constitutions of Albania, Belarus, Bosnia and Herzegovina, and Georgia. 206

For example, art. 45 of the Bulgarian constitution states: “Citizens have the right to lodge complaints,

proposals, and petitions with the state authorities”. Similar examples are also present in the

constitutions of Estonia art. 46; Hungary art. 64; Lithuania art. 33; Poland art. 63; and Russia art. 33.207

For example, the constitution of Croatia states in art. 46: “All citizens have the right to submit petitions

and complaints, to make proposals to government and other public bodies, and to receive answers

from them” [emphasis added]. The other constitution that follows this model is that of Latvia art. 104. 208

See, e.g., Serbia art. 48. 209

Art. 47 (2). Moldova’s Constitution has a similar provision, art. 52. 210

Art. 47 (3). 211

Slovakia art. 27 (2), Czech Charter art. 18 (3).212

Slovakia art. 27 (3), Czech Charter art. 18 (2). 213

Croatia art. 42. The other examples of constitutions that contain only such a stark, basic, provision, are

those of Bosnia and Herzegovina art. 11 of ECHR, Hungary art. 62, Moldova art. 40), Lithuania art.

36; Romania art. 36; Russia art. 31 and Slovenia art. 42.214

Estonia art. 47, Bulgaria art. 43 (3) (this requirement applies in Bulgaria only to the meetings held

indoors).215

Latvia art. 103, Georgia art. 25, Ukraine art. 39, Montenegro art. 39 and Serbia art. 43. 216

Macedonia art. 21 (2). 217

Czech Charter art. 19 (2). 218

Thus, the constitution of Croatia states, in art. 43 (1), that: “Citizens are guaranteed the right to free

association for the purposes of protection of their interests or promotion of social, economic, political,

national, cultural, and other convictions and objectives”. See also Ukraine art. 36. 219

Lithuania art. 35 (2), Russia art. 30 and Ukraine art. 36. 220

The constitution of Montenegro, in article 40, states: “The state shall offer assistance to political, trade

union and other associations whenever there is a public interest thereof”. 221

The constitutions of Albania art. 46; Bulgaria art. 44, Croatia art. 43, Georgia art. 26 and Macedonia

art, 20.222

Georgia art. 26 (3), Bulgaria art. 44 (2). 223

Bulgaria art. 44 (2). 224

Poland art. 58 (2). 225

Decision No. 20 of 10 May 1996, reprinted in East European Case Reporter of Constitutional Law 4

(1997) 57-63, see also http://www.nc.ee/english/const/96/4a9601i.html. The quotations in the main

226 Similarly, the Slovenian Constitutional Court found unconstitutional a provision of the law on

association that required a parent's permission for minors to join an association, Decision U-I-391/96

of 11 June 1998, translation at http://www.us-rs.si/en/casefr.html. In this decision, the Court did not

annul the provision (because such an annulment would leave a legal gap as far as minors’ enrolment is

association was concerned) but ordered the legislature to remove this unconstitutionality. In the same

decision, the Court (acting on its own initiative) invalidated a provision, in the same statute,

text are from the translation on that Website.

330 ENDNOTES

establishing a minimum of ten members to form an association; the Court decided that three was

enough.227

Art. 48 (2). 228

Decision of 21 December 2000, see http://www.lrkt.lt/2000/r001221.htm. 229

Art. 35 (2). 230

Part II.2 of the Decision of 21 December 2000. 231

Part III of the Decision. The same argument was raised by the representative of the government, see

Part IV of the Decision. 232

Part II.3.1 of the Decision. 233

Part II.3.3 and II.3.4 of the Decision. 234

See, e.g., the Constitution of the People’s Republic of Poland of 1952, art. 83. 235

E.g. in Bulgaria (art. 39: freedom of expression, art. 40: freedom of the press and other media) 236

E.g. in Poland, freedom of the press is included outside the constitutional charter of rights, in the first

chapter of the Constitution (chapter entitled “The Republic”, art. 14). Freedom of expression is

proclaimed in art. 54. 237

See Czech Charter art. 17 (4). 238

E.g. Bulgaria art. 40 (1), Czech Charter art. 17 (3), Poland art. 54 (2) 239

Art. 30 (3). 240

Art. 31 (5). 241

Case No. 19/94, 20 April 1995, reprinted in East Europ. Case Reporter of Constit. Law 3 (1996) 61-

79, http://www.lrkt.lt/angdoc.htm. 242

Decision 7/96 of 4 June 1996, Bull. Const. Case L. 1996 (2): 187-89, see also, for a discussion,

Schwartz, supra note 18 at 182-83. 243

Art. 39. 244

Art. 40. 245

Art. 41. 246

See http://www.unhchr.ch/html/menu3/b/treaty2_asp.htm.247

Art. 30 (7). 248

Art. 39 (2); see also Art. 40 (2) (the same restriction applied to freedom of the press). 249

Decision 5/92, reprinted in E.Europ. Const. Case Rep. 6 (1999): 1-17; see also

http://www.concourt.cz/angl_verze/doc/p-5-92.html.250

Art. 17. 251

Id. 252

Sólyom & Brunner, supra note 25 at 229. 253

Decision no. 30/1992 (V.18) AB, of 18 May 1992, reprinted in E.Europ. Const. Case Rep 2 (1995): 8-

26.254

Andras Sajo, “Hate Speech for Hostile Hungarians”, East Europ. Constit. Rev. 3:2 (Spring 1994): 82-

87 at 84. 255

Decision 30/1992, E.Europ. Const. Case Rep 2 (1995): 8-26 at 25. 256

Id. at 12. 257

Id. at 13. 258

Id. at 22. 259

Id. at 23. 260

Id. at 23 261

Sajo, supra note 254 at 84; Gábor Halmai, “Criminal Law as Means Against Racist Speech? The

Hungarian Legal Approach”, Journal of Constitutional Law in Eastern and Central Europe 4 (1997):

41-52 at 45. 262

Decision 30/1992, at 16. 263

Decision 12/199. 264

I am grateful to Professor Renata Uitz for this insight. 265

Decision 14/2000, discussed in “Constitution Watch: Hungary”, East Europ. Constit. Rev. 9:3

(Summer 2000): 18-21 at 20-21. 266

Art. 61 (1) of the Constitution. 267

Art. 70 (A). 268

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

ENDNOTES 331

269

Decision 13/2000, discussed in “Constitution Watch: Hungary”, East Europ. Constit. Rev. 9:3

(Summer 2000): 18-21 at 20-21. 270

Texas v. Johnson, 491 U.S. 397 (1989), United States v. Eichman, 496 U.S. 310 (1990). 271

Decision K. 17/93, reprinted in East European Case Reporter of Constitutional Law 5 (1998) 55-66. 272

For a critique of the law, see Irena Grudzinska Gross, “Broadcasting Values”, East Europ. Constit.

Rev. 2:3 (Summer 1993): 51-53. 273

Decision K. 17/93 at 61. 274

See Grudzinska Gross, supra note 272 at 53. 275

The law was criticised by Helsinki Watch, an international human rights NGO, which said that the

provisions would “chill legitimate speech as broadcasters are forced to censor themselves to fit within

the undefined boundaries of the law”, quoted in Mark F. Brzezinski, “Constitutionalism and Post-

Communist Polish Politics”, Loy. L.A. Int'l & Comp. L.J. 20 (1998): 433-53 at 445 n. 38. 276

Decision W. 3/93. 277

Decision Pl. US 43/93, of 12 April 1994, in East European Case Reporter of Constitutional Law 5

(1998): 33-46. 278

Interview with Professor Vojtech Cepl, Justice of the Constitutional Court of Czech Republic, Prague,

21 March 2002. 279

Decision Pl. US 43/93 at 41-42 280

Id. at 42-44. 281

Id. at 44. 282

“Constitution Watch: Slovakia”, East Europ. Constit. Rev. 11:1/2 (Winter/Spring 2002): 43-46 at 45-

46.283

Id. at 46. 284

Decision 36/1994, of 24 June 1994, reprinted in East European Case Reporter of Constitutional Law 3

(1996): 148-62 285

376 U.S. 254 (1964). 286

Sólyom & Brunner, supra note 25 at 12. 287

Decision no. 37/1992 (VI.8) AB of 8 June 1992, reprinted in East European Case Reporter of

Constitutional Law 2 (1995) at 27-35.288

Sólyom & Brunner, supra note 25 at 239. 289

Art. 61 (1) and (2).

291 See Sólyom, “Introduction” in Sólyom & Brunner, supra note 25 at 14.

292 Decision no. 21/1996, of 14 November 1996.

293 Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia 11 May

2001294

Case No. 19/94, 20 April 1995, reprinted in East European Case Reporter of Constitutional Law 3

(1996) 61-79, http://www.lrkt.lt/angdoc.htm. 295

Decision 57/2001 (XII. 5) of December 2001, described in “Constitution Watch: Hungary”, East

Europ. Constit. Rev. 11:1/2 (Winter/Spring 2002): 19-22 at 21-22. 296

Not the Court’s own words but a summary in “Constitution Watch”, id. at 22. 297

Id. at 22 298

Decision of 13 February 1997, http://www.lrkt.lt/angdoc.htm, reprinted in Rulings and Decisions of

the Constitutional Court of the Republic of Lithuania, vol. 8 (Constitutional Court of Lithuania:

Vilnius 1997): 14-51. The references below are to this edition. 299

Interview with Constitutional Court Justice Teodora Staugaitien , Vilnius, 22 June 1998. 300

Decision of 13 February 1997 (printed text on file with the author) at 39-40. 301

Id. at 19. 302

Id. at 19. 303

Id. at 32-4, 39. 304

Id. at 39. 305

Id. at 42.

290East European Case Reporter of Constitutional Law 2 (1995) at 31.

332 ENDNOTES

Chapter 7

1The Political Dimension of EU Enlargement: Looking Towards Post-Accession, Report of the Reflection

Group chaired by Jean-Luc Dehaene (Robert Schuman Centre at the EUI, Florence 2001),

http://www.iue.it/RSC/pdf/dehaenereport.pdf at18. 2 For a discussion of different “political orientations” influencing constitution-making in post-communist

Poland, see Piotr Winczorek, “Axiological Foundations of the Constitution of Poland”, St. Louis-

Warsaw Transatlantic L.J. (1997): 59 at 61-62. 3 Jean-Marie Henckaerts & Stefaan Van der Jeught, “Human Rights Protection Under the New

Constitutions of Central Europe”, 20 Loy. L.A. Int’l & Comp. L. Rev. 20 (1998): 475-506 at 491. 4 See, e.g. the recent public opinion survey by the reputable OBOP institute in Poland, in June 2002. 65%

of respondents believe that the State should look after the welfare of its citizens; 53 % believe that

budget expenditure for social-welfare purposes is more important than spending to stimulate

economic growth; 62 % believe that the State should subsidise employment if this is necessary to

fight unemployment, even if it is not economically profitable. See “Opinia spo eczna: Mi o ju by o”,

Rzeczpospolita (Warsaw) 13 August 2002 at A-1, also at http://www.rzeczpospolita.pl/

wydanie_020813/ publicystyka/publicystyka_a_3.html. 5 Tadeusz Zieli ski, Panel discussion, in Konstytucja w s u bie demokracji; Constitution in Service of

Democracy, conference papers: The International Centre for Development of Democracy Foundation,

10-12 March 1995, Cracow, at 211-212. 6 Id. at 212-213.

7 Herman Schwartz, “In Defense of Aiming High”, East Europ. Constit. Rev. 1:3 (Fall 1992): 25-28 at 26-

27.8 Id. at 27.

9 Id. at 28.

10 See Cécile Fabre, “Constitutionalising Social Rights”, Journal of Political Philosophy 6 (1998): 263-84

at 268-70. 11

See, in particular, Henry Shue, Basic Rights (Princeton University Press: Princeton N.J. 1980) at 39-40,

55-56.12

This understanding is not equivalent to the notion of a “programmatic” right, because the latter requires

the state to have a program. A “minimal” use of the right merely requires that, if there is a program, it

must not be arbitrarily denied to some beneficiaries. 13

Schwartz, supra note 7 at 27. It is important to note that this was not the only function of socio-

economic rights prescribed by Professor Schwartz in his article. 14

With the partial exception of Scandinavian states, see footnote 32 below.15

E.g. German Constitution, art. 20. 16

See, e.g., Constitutions of Belgium, Ireland, Italy, Luxembourg, Netherlands, Greece, Spain and

Portugal.17

See, e.g., Spain and Italy. 18

Art. 14 (1) and (2) of the EU Charter of Fundamental Rights. 19

Art. 24 (1) and (3). 20

Art. 15. 21

Art. 33 (2). 22

Art. 34. 23

Art. 35. 24

Art. 36. 25

Art. 35, 2nd

sentence. 26

Art. 33 (1). 27

Art. 26. 28

Art. 25. These two latter provisions (Articles 26 and 25), which draw on the equivalent provisions of

the European Social Charter and the Community Charter of the Fundamental Social Rights of

Workers, use the language of “rights” ("The Union recognises and respects the rights. . .”). However,

I believe that it is more accurate to view them as descriptions of policy directives; similarly Agustín

José Menéndez, “The Sinews of Peace: Rights to Solidarity in the Charter of Fundamental Rights of

the Union”, in Erik Oddvar Eriksen, John Erik Fossum & Agustín José Menéndez, The Chartering of

ENDNOTES 333

Europe: The Charter of Fundamental Rights in Context (ARENA Report 8/2001, Oslo 2001): 201-26

at 215. 29

See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37 (1973) (finding no fundamental

right to public education); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (finding no fundamental right to

adequate housing). 30

Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983). 31

For a general discussion, see Wiktor Osiatynski, “Rights in New Constitutions of East Central Europe”,

Colum. Hum. Rts. L. Rev. 26 (1994): 111-66 at 138-45.32

This is not entirely accurate; the Nordic constitutions contain some socio-economic rights (in particular,

the right to work and a commitment to full employment) but, by and large, they are not exhaustive

and are not accompanied by a “social state” clause. This may be partly explained by the fact that, with

the exception of the Swedish Instrument of Government (1974), they originate from the first half of

the 19th Century, although they have been amended many times. As one commentator has noted, they

“retain the liberal character of the time of their adoption”, see George S. Katrougalos, “The

Implementation of Social Rights in Europe”, Columbia Journal of European Law 2 (1996): 277-312

at 294. 33

Ulrich K. Preuss, “Patterns of Constitutional Evolution and Change in Eastern Europe”, in Constitu-

tional Policy and Change in Europe (J.J. Hesse & N. Johnson eds., 1995): 95-126 at 103; see also Jon

Elster, “The Impact of Rights on Economic Performance”, in Andras Sajo, ed., Western Rights? Post-

Communist Application (Kluwer: The Hague 1996): 347-59. 34

Preuss, supra note 33 at 101. 35

Id.; see also Andrzej Rapaczynski, “Constitutional Politics in Poland: A Report on the Constitutional

Committee of the Polish Parliament”, in A.E. Dick Howard, ed., Constitution Making in Eastern

Europe (Woodrow Wilson Center Press: Washington 1993): 93-132 at 107-8.36

Andras Sajo, “How the Rule of Law Killed Hungarian Welfare Reform”, East Europ. Constit. Rev 5:1

(Winter 1996): 31-41. 37

For excerpts of one of the central decisions in this series, Decision No. 43/1995 of 30 June 1995 con-

cerning social security benefits, see László Sólyom & Georg Brunner, Constitutional Judiciary in a

New Democracy: The Hungarian Constitutional Court (University of Michigan Press: Ann Arbor,

2000): 322-32. For a discussion, see Herman Schwartz, The Struggle for Constitutional Justice in

Post-Communist Europe (University of Chicago Press: Chicago, 2000) at 92-93; Bojan Bugaric,

“Courts as Policy-Makers: Lessons from Transition”, Harv. Int’l L.J. 42 (2001): 247-88 at 251.38

Jerzy Ciemniewski, “Sejm i Senat w projekcie Konstytucji RP”, in Józef Krukowski (ed.), Ocena

projektu Konstytucji RP (Towarzystwo Naukowe Katolickiego Uniwersytetu Lubelskiego: Lublin,

1996): 37-47 at 41. 39

Leszek Garlicki, “Orzecznictwo Trybuna u Konstytucyjnego w 1993 roku”, Przegl d S dowy (1994,

no. 10): 31-52 at 37. 40

Leszek Garlicki, “Orzecznictwo Trybuna u Konstytucyjnego w 1997 roku”, Przegl d S dowy (1998,

no. 6): 35-58 at 55. 41

See, e.g., Jon Elster, “Constitution-Making in Eastern Europe: Rebuilding the Boat in the Open Sea”,

Public Admin. 71 (Spring/Summer 1993): 169-217 at 198. 42

Herman Schwartz, in Konstytucja, supra note 5: 215-23 at 221. 43

Cass R. Sunstein, “Against Positive Rights”, East Europ. Constit. Rev. 2:1 (Winter 1993): 35-39 at 36. 44

Id. at 37. For a more recent exposition by Sunstein of his views on constitutional socio-economic rights,

see Cass Sunstein, Designing Democracy: What Constitutions Do (Oxford University Press: Oxford

2001) at 221-38. 45

Albania art. 52; Belarus art. 41 (1); Croatia art. 57; Czech. Charter art. 26; Estonia art. 28; Hungary art.

70E; Latvia art. 109; Lithuania art. 52; Moldova art. 47; Poland art. 67; Romania art. 43; Slovakia art.

35 and 39; Ukraine art. 46; Serbia and Montenegro Charter art. 42, Montenegro art. 55; Serbia art. 39. 46

E.g., Poland art. 67; Montenegro art. 55; Serbia art. 39. 47

Albania art. 52; Belarus art. 47; Estonia art. 28; art. 70E; Latvia art. 109; Lithuania art. 52; Moldova art.

47(2); Poland art. 67; Slovakia art. 39 (1); Ukraine art. 46.48

Belarus art. 47; Hungary art. 70E; Lithuania art. 52; Moldova art. 47 (2); Poland art. 67.49

Belarus art. 47; Croatia art. 57; Hungary art. 70E; Latvia art. 109; Lithuania art. 52; Moldova art. 47(2);

Poland art. 67; Romania art. 46; Slovakia art. 38 (1); Ukraine art. 46. 50

Belarus art. 47; Estonia art. 28; Lithuania art. 52; Slovakia art. 39 (1); Ukraine art. 46.

334 ENDNOTES

51

Hungary art. 70E (widows and orphans); Lithuania art. 52 (widows); Moldova arts. 47(2) (widows),

49(3) (orphans). 52

Russia, Bulgaria, Macedonia, and Slovenia all include provisions for social security. The Russian

Constitution (art. 39) provides for social security in cases of old age, illness, disability, and loss of

breadwinner. The Bulgarian Constitution (art. 51) provides for social security only in cases of old age,

disability or temporary unemployment. The Macedonian constitution only provides for social security

in cases of temporary unemployment (art. 32) and then states that all other social security rights will

be determined by law (art. 34). The Slovenian constitution (art. 50) provides that all those who fulfil

the conditions laid down by law will receive social security benefits. 53

Georgia, and Bosnia and Herzegovina. 54

See, generally, Viktor Mavi, “The Right to Health and the New East European Constitutions”, Journal

of Constitutional Law in Eastern and Central Europe 3 (1996): 213-24. 55

Belarus art. 45; Croatia art. 58; Czech Charter art. 30; Estonia art. 28; Latvia art. 111; Lithuania art. 53

(although note that this constitutional provision uses the language of the State's duty to take care of

people's health rather than of an individual right to health care); Macedonia art. 39; Moldova art. 36;

Romania art. 43; Russia art. 41; Slovakia art. 40; Ukraine art. 49. 56

Poland art. 68; Serbia art. 30. 57

Bulgaria art. 52; Slovenia art. 51; Montenegro art. 55; Serbia art. 30. 58

Albania art. 55; Bulgaria art. 52; Georgia art. 37. 59

Hungary art. 70D. 60

Bulgaria art. 55, Macedonia art. 43, Slovenia art. 72. 61

Croatia art. 69. 62

Belarus art. 49; Lithuania art. 41; Moldova art. 35; Poland art. 70; Romania art. 32; Russia art. 43;

Slovenia art. 57; Ukraine art. 53. 63

Albania art. 57; Bulgaria art. 53; Czech Charter art. 33; Latvia art. 112; Slovakia art. 42. 64

Croatia art. 65; Georgia art. 35; Hungary art. 70F (although it also guarantees financial support to all

65 Belarus, Hungary, Poland, Romania, Russia, Slovakia, Ukraine, Montenegro and Serbia.

66 In addition, five other constitutions establish a good environment as an aim for the state, though not

enforceable as a right. 67

Belarus art. 48; Russia art. 40; Slovenia art. 78; Ukraine art. 47. 68

Albania art. 59; Poland art. 75. 69

Belarus, Croatia, Czech Republic, Moldova, Poland, Romania, Russia, Slovakia and Ukraine. 70

Bulgaria, Hungary, Macedonia, Slovenia, Montenegro, and Serbia. 71

Three Baltic states: Estonia, Latvia, and Lithuania. In fact, Lithuania falls in between this and the first

category, with a middling number of work-protection and other rights. 72

Bosnia and Herzegovina, and Georgia. 73

Rett R. Ludwikowski, Constitution-Making in the Region of Former Soviet Dominance (Duke Univer-

sity Press: Durham 1996) at 230. 74

Belarus, Bulgaria, Croatia, Estonia, Georgia, Hungary, Latvia, Lithuania, Macedonia, Romania, Russia,

Ukraine, Montenegro, and Serbia. 75

For example, in Hungary. 76

In January 1991, the federal parliament of Czechoslovakia adopted the Charter of Fundamental Rights

and Freedoms as a constitutional act. Even before the formal dissolution of the federation, the two

republics adopted slightly different legal strategies towards the Charter, in their respective

constitutions: The Slovak Republic incorporated the Charter into its constitution (of September 1992)

while the Czech Constitution (of December 1992) stated that the Charter formed a part of the

constitutional order of the Republic without incorporating it directly, see Czech Rep. Const. art. 112

(1).77

Czech Charter art. 41; Slovakia art. 51. 78

Russia art. 39. 79

E.g., Czech Charter arts. 32(5)-(6) (providing assistance to parents raising their children); Slovakia art.

43(2) (providing the right of access to the cultural heritage).

students); Macedonia art. 44; Serbia and Montenegro Charter art. 43, Montenegro art. 62.

Serbian Constitution mentions all “regular education” (art. 32), and the Estonian provides for such a

right to “school-age children” (art. 36).

Two constitutions are unclear about the specific level at which free education is guaranteed: The

ENDNOTES 335

80

Albania, Moldova, Poland, and Slovenia. 81

Poland art. 81. 82

Id. at art. 67 (1). 83

Article 81 states that certain rights, listed earlier in the Constitution, can be claimed only within the

limits defined by a particular statute. These rights include: minimum income (Art. 65 para 4), full

employment and state bodies to combat unemployment (Art. 65 para 5), safety and hygiene at work

(Art. 66), days free from work and annual paid holiday (Art. 66 para. 2), assistance to handicapped

persons (Art. 69), protection of families and special protection of mothers (Art. 71), protection of the

environment (Art. 74), satisfaction of needs of accommodation, combating homelessness and

protection of tenants’ rights (Art. 75), and protection of consumers’ rights (Art. 76). 84

Zdzis aw Czeszejko-Sochacki, Leszek Garlicki, Janusz Trzci ski, Komentarz do ustawy o Trybunale

Konstytucyjnym (Wydawnictwo Sejmowe: Warszawa, 1999) at 35.85

The Polish text was published in Rzeczpospolita (Warsaw), 15 November 1992. For an English

translation, see “Draft of the Charter of Rights and Freedom”, St. Louis-Warsaw Transatlantic L.J.

(1996): 73-84. For useful discussion on this issue, see generally Stanis aw Frankowski, “Lech

Wa sa’s Draft of the Charter of Rights and Freedoms: An Overview”, St. Louis-Warsaw

Transatlantic L.J. (1996): 65-72. This constitutional draft was eventually aborted, and disowned by

President Wa sa himself. 86

“Draft of the Charter”, supra note 85, ch. V. 87

Id. art. 48. 88

Decision 31/1990, quoted in László Sólyom, “Introduction to the Decisions of the Constitutional Court

of the Republic of Hungary”, in Sólyom & Brunner, supra note 37 at 36. 89

Péter Paczolay, “Human Rights and Minorities in Hungary”, J. of Const. L. in E. and Cent. Eur. 3

(1996): 111-26 at 121. 90

Sólyom, supra note 88 at 35. 91

Id. at 37. 92

Summarized in “Constitution Watch: Hungary”, East Europ. Constit. Rev. 9:1/2 (Winter/Spring 2000):

18-21 at 20-21. 93

As a general proposition (not in the context of CEE), the thesis of non-justiciability of the socio-

economic rights of individuals, and of the socio-economic duties of the State, was strongly refuted by

K. D. Ewing, “Social Rights and Constitutional Law”, Public Law (1999): 104-23 at 119-21. 94

Czeszejko-Sochacki et al., supra note 84 at 163: a breach of a “programmatic norm” (including those

that proclaim socio-economic rights, the details of which are to be spelled out by legislators) happens

when “the legislator incorrectly interprets a provision of the Constitution that defines a particular goal

or task of public authorities, and, in particular, enacts a statute that provides for such measures that

cannot lead to that goal and thus breaches constitutional liberties or rights”. 95

Jon Elster, Claus Offe & Ulrich K. Preuss, Institutional Design in Post-communist Societies (Camb-

ridge University Press: Cambridge, 1998) at 87. 96

Decision K. 1/88; the full text of the Decision on file with the author. 97

Id. at 7 (section III.1 of the Decision). 98

Id. at 8, section IV of the Decision. The use of the notion of “ratchet” requirement is mine, not the

Tribunal's.99

Decision K. 21/95 of 25 February 1997, discussed in Jerzy Oniszczuk, Konstytucja Rzeczypospolitej

Polskiej w orzecznictwie Trybuna u Konstytucyjnego (Zakamycze: Kraków, 2000) at457. 100

See e.g. Decision K. 7/89 of 8 November 1989. According to Professor Garlicki, there is a sharp

difference between the early stage of Constitutional Tribunal jurisprudence, when this programmatic

nature of socio-economic rights was very pronounced, and the later stage when the Tribunal had no

doubts about treating these rights as a basis for evaluating laws, see Leszek Garlicki, “Orzecznictwo

Trybuna u Konstytucyjnego w 1993 roku”, Przegl d S dowy (1996, no. 7-8): 110-38 at 119. 101

See Decision K 8/96, of 17 July 1996, invalidating a law that prohibited the indexation of pensions.

The Tribunal announced that the non-indexation of pensions (that is, a failure to adjust them to the

rise of costs of living) amounts to a violation of the pensioners’ constitutional rights to their pensions.102

Czeszejko-Sochacki et al., supra note 84 at 163. 103

Tadeusz Zieli ski, “Prawo do chleba, mieszkania i pracy”, Gazeta Wyborcza (Warsaw), 27August

1996 at 12.

336 ENDNOTES

104

Decision of the Bulgarian CC no 12/1997 of 25 Sept. 1997, described in the Bulletin on Constit. Case-

Law 3 (1997) at 357, originally published in Bulgarian in Darzhaven Vestnik no. 89 of 7.10.1997. 105

For similar reasons, the Romanian Constitutional Court invalidated, in 1998, a provision of the law on

the social protection of unemployed persons. This law stated that those who had completed secondary

education and were in vocational training were not eligible for unemployment benefits; Decision no.

81/1998 of 19 May 1998, summarised in Bull. Constit. Case-Law 1998 (2): 288-89, ROM-1998-2-

004. This was meant to remove students benefiting from student grants from the group of those

eligible for unemployment benefits, but one of the consequences was that those who had been

working prior to (or during) their studies, and then lost their employment while studying, were denied

unemployment benefits. The Court, in invalidating the provision, argued (among other things) that the

exercise of one right (education) cannot be used as the ground for curtailing another (unemployment

benefit).106

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia 11 May

2001.107

Id. 108

Id. 109

Id. 110

Approximately US$ 32 at 2001 exchange rates. 111

Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia 11 May

2001.112

See Venelin I. Ganev, “Bulgaria: The (Ir)Relevance of Post-communist Constitutionalism”, in Jan

Zielonka (ed.), Democratic Consolidation in Eastern Europe, vol. 1: Institutional Engineering

(Oxford University Press, Oxford 2001): 186-211 at 186, 198.113

Decision U-I-86/96 of 12 December 1996, English translation available at http://www.us-

rs.si/en/casefr.html.114

Section 10 of the Decision. 115

See Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press:

Princeton, 1999) at 169-72. 116

The Political Dimension of EU Enlargement, supra note 1 at 38. 117

E.g. in Poland in 2001, around 18% of the labour force was unemployed; in the Czech Republic, 8.2%;

in Hungary, 5.8%, OECD Quarterly Labour Force Statistics, No. 1 (2002), Paris. 118

Bob Hepple, “A Right to Work?”, Industrial Law Journal 10 (1981): 65-83 at 73. 119

They are those of Albania (art. 49), Belarus (art. 41), Bulgaria (art. 48), Croatia (art. 54), the Czech

Republic (art. 26), Hungary (art. 70B), Macedonia (art. 32), Slovenia (art. 49), Romania (art. 38),

Slovakia (art. 35), Ukraine (art. 43), Serbia and Montenegro Charter (art. 40), Montenegro (art. 52),

and Serbia (art. 35). 120

See Sólyom, “Introduction”, supra note 88 at 35. 121

Estonia (art. 29), Georgia (art. 30), Latvia (art. 106), Lithuania (art. 48), Moldova (art. 43), Poland (art.

65), Russia (art. 37). The only Constitution which contains no work-related rights is that of Bosnia

and Herzegovina. 122

Five constitutions contain a general provision granting the right to be trained for work, namely, the

Constitutions of Belarus (art. 41) (although this does only apply to those who are unemployed through

no fault of their own), the Czech Republic (Czech Charter art. 26), Estonia (art. 29(3)), Slovakia (art.

35), and Ukraine (art. 43). In addition, some constitutions grant the right to be trained to specific

groups in society. Thus, the Czech Charter (art.29) and Slovak Const. (art. 38) provide for training

for the young. Those of Moldova (art. 51), Poland (art. 69), Romania (art. 46), and Slovenia (art. 52)

provide for training for the disabled. The Slovak Const. (art. 38) also provides for training for the

unhealthy.123

The quotation is from the Const. of Bulgaria, art. 48; see also similarly Slovenia (art. 66) and Ukraine

(art. 43). The Const. of Georgia has a slightly different type of provision, stating at art. 32, inter alia,

that “The state must help the unemployed to find work”. 124

Albania art. 59, Belarus art. 41, Poland (art. 65). 125

The old Constitution (of 1952) contained article 68, which was kept in force until 1997: “Citizens . . .

shall have the right to work, that is, the right to employment paid in accordance with the quantity and

quality of the work done”. 126

Decision K. 14/91 of 11 February 1992.

ENDNOTES 337

127

Decision K. 7/96 of 7 January 1997. 128

Art. 65. 129

Decision K. 33/98 of 26 April 1999. 130

See discussion of this case in Oniszczuk, supra note 99 at 466. 131

Decision 8/1993 of 27 February 1993, transl. in East Europ. Case Reporter of Const. Law 1 (1994):

247-48.132

Decision U-I-344/94, of 1 June 1995, transl. in http://www.us-rs.si/en/casefr.html. 133

Section 6 of the Decision. As the text of the Decision further reveals, this was in response to one of the

petitioner’s arguments, that the conditions for appointment to the position of notary mean, in the

words of the Court, “a reintroduction of the former criteria on socio-political (un)suitability”, Section

9 of the Decision. 134

Section 14 of the Decision. 135

Section 12 of the Decision. 136

Decision of 4 March 1999, http://www.lrkt.lt/1999/n9a0304a.htm. 137

138 Decision of 12 February 2002, http://www.lrkt.lt/angdoc.htm.

139 Decision no. U-I-222/1995 of 9 November 1998, summarised in Bull. Constit. Case-Law 1998 (3):

403, CRO-1998-3-018. Another, much more marginal, example was the decision of the Polish

Constitutional Tribunal that upheld a provision of a statute on anti-alcohol measures, against a

challenge of inconsistency with the state’s constitutional duty to protect public health (under an old

Constitution, superseded in 1997), Decision no. K. 3/97 of 23 June 1997. The challengers (a group of

MPs) claimed that a provision on temporary, one-off licenses to sell alcohol during public open-air

events was too lax and, as a result, did not guarantee sufficient protection against alcohol abuse, thus

unconstitutionally endangering public health. The Tribunal rejected this claim on the basis that the

provision under challenge did not constitute a “drastic” breach of the legislature’s duties stemming

from the constitutional provisions on health protection. However, note that this decision, strictly

speaking, was not made under a “right to health” heading. 140

Decision SK 18/99 of 8 November 2000, see Wybór tez i sentencji Orzecze Trybuna u

Konstytucyjnego, II Pó rocze 2000 (Wydawnictwo TK, Warszawa 2001), at 30-33. 141

Note that, in Polish, the word “schools” includes also tertiary education institutions such as

universities.142

See, e.g., Decision K. 8/96 of 17 July 1996. 143

The Croatian Constitutional Court invalidated, in 1998, a provision of the 1993 Code on Equating

Retirement Incomes, on the basis that the code demanded that pensions increase relative to changes in

the cost of living, rather than relative to the increase of average incomes, see “Constitution Watch:

Croatia”, East Europ. Constit. Rev. 7: 3 (Summer 1998): 8-9 at 9.144

See The Political Dimension of EU Enlargement, supra note 1 at 19. 145

See text accompanying notes 140-41 above.146

Andras Sajo, “Welfare Rights in the Post-Communist Constitutional Experience”, in Mihaela Serban

Rose, ed., Constitutionalism in Transition: Africa and Eastern Europe (The Helsinki Foundation for

Human Rights: Warsaw, 2003): 41-73. 147

See Ronald Dworkin, Sovereign Virtue (Harvard University Press: Cambridge Mass., 2000), chapters 8

and 9. 148

See Sajo, supra note 146 at 54. 149

150 Sajo, supra note 146 at 61 and 64.

151 Id. at 55.

152 See János Mátyas Kovács, “Approaching the EU and Reaching the US? Rival Narratives on

Transforming Welfare Regimes in East-Central Europe”, in Peter Mair & Jan Zielonka, eds, The

Enlarged European Union: Diversity and Adaptation (Frank Cass: London, 2002): 175-204 at 197.

Chapter 8

1 See, e.g., with reference to Bulgarian Constitutional Court, Venelin Ganev, “Bulgaria: The

(Ir)Relevance of Post-comunist Constitutionalism”, in Jan Zielonka, ed., Democratic Consolidation in

See Chapter 10.3, pp. 279.

See pp. 183-84.

338 ENDNOTES

Eastern Europe, vol. I: Institutional Engineering (Oxford University Press: Oxford, 2001): 186-211 at

198.2 Art. 32.

3 Art. 89.

4 For statistics on anti-homosexual views in Poland, see e.g. Helsinki Committee for Human Rights,

“Gender Equality: Legal and Institutional Framework On Women’s Rights and Equal Opportunities;

De Jure And De Facto Discrimination In Poland”, Polish Law Journal 6 (2001): 149-228 at 216 (for

instance, according to a 1996 survey, only 25 percent of respondents said that homosexuals should be

allowed to hold high public offices, while as many as 63 percent would not accept homosexuals in

such positions. 71 percent of respondents would not permit homosexuals to be teachers; 71 percent

excluded the possibility of a homosexual marriage, and 88 percent would not permit adoption by

same-sex couples, id. at 216-17. 5 Decision no. 81 of 15 July 1994, striking down the Criminal Code's prohibition of homosexual

intercourse.6 Decision 14/1995 of 15 March 1995, striking down a rule of the civil code that defined "domestic

partnership" as a woman and a man living together in a common household outside marriage. 7 This is the case of eight constitutions in the region: Bosnia Herzegovina (in the ECHR), Croatia, the

Czech Republic, Estonia, Hungary, Russia, Slovakia and Serbia and Montenegro Charter. In addition,

two other constitutions (those of Slovenia and Serbia) state that “any other personal reasons” are also

impermissible grounds for discrimination. 8 See, generally, Wojciech Sadurski, “The Concept of Legal Equality and an Underlying Theory of

Discrimination”, Saint Louis-Warsaw Transatlantic L. J. (1998): 63-104. 9 Decision K. 6/89 of 24 October 1989 (the text on file with the author) at 6. I should add that, in this

context, the Constitutional Tribunal is referring to my own book, Wojciech Sadurski, Teoria

sprawiedliwo ci (PWN: Warszawa 1988) at 94. 10

Decision U. 1/96 of 16 December 1996, discussed in Aldona Doma ska, “Analiza tre ci konstytucyjnej

zasady równo ci w oparciu o wybrane orzeczenia Trybuna u Konstytucyjnego”, Studia Prawno-

Ekonomiczne 62 (2000): 47-58 at 51. 11

See, e.g., Decision K. 7/90 of 22 August 1990, discussed id. at 53. 12

Decision K. 14/91 of 11 February 1992, discussed id. at 53. 13

Decision no. P. 2/87 of 3 March 1987 (the text of the decision on file with the author), pp. 12-13 (italics

added).14

Doma ska, supra note 10 at 52. 15

Decision No 47 of 17 May, 1994. 16

Id. 17

Id. 18

Decision U-I-107/96, of 5 December 1996. 19

Id., para. 16. 20

Id., para 28. 21

Ken Jowitt, New World Disorder. The Leninist Extinction (University of California Press: Berkeley,

1992) at 322. 22

On Poland, see Helsinki Committee, supra note 4 at 156. According to Eleonora Zieli ska of the

University of Warsaw, the difference in average wages between men and women in Poland varies

between 30 and 40 percent, see “Praw kobiet nie wprowadzimy czarodziejsk ró d k ” (Interview

with Professor Zieli ska), Rzeczpospolita (Warsaw) 17 April 2002, at A9; on Czech Republic, see

2002 Regular Report on Czech Republic’s Progress Towards Accession, Commission of the European

Communities, Brussels 9 October 2002, SEC (2002) 1402, available at http://europa.eu.in/comm/

enlargement/report2002/cz_en.pdf, at 30. Unequal treatment of women as regards working conditions,

remuneration, professional training and career opportunities has been noted by the EU Commission

regarding almost every CEE candidate state in the annual reports on these countries’ progress towards

accession; see, e.g., for Slovakia, 2002 Regular Report on Slovakia’s Progress Towards Accession,

Commission of the European Communities, Brussels 9 October 2002, SEC (2002) 1410, available at

http://europa.eu.in/comm/ enlargement/report2002/sk_en.pdf, at 29. 23

Helsinki Committee, supra note 4 at 163. 24

For statistics in Poland, see id. at 190-91. For some other examples: In Romania only 11 percent of

deputies and 9 percent of senators are women; see 2002 Regular Report on Romania’s Progress

ENDNOTES 339

Towards Accession, Commission of the European Communities, Brussels 9 October 2002, SEC

(2002) 1409, available at http://europa.eu.in/comm/enlargement/report2002/ro_en.pdf, at 34. 25

Decision Kw. 5/91 of 24 September 1991. 26

Decision K. 15/97 of 29 September 1997; Decision K 35/99 of 5 December 2000. 27

Decision K 15/99 of 13 June 2000. 28

Decision K 27/99 of 28 March 2000. 29

Decision K. 15/97 of 29 September 1997, Orzecznictwo Trybuna u Konstytucyjnego, Rok 1997 (C.H.

Beck: Warszawa 1998): 367-86.30

The decision of the Supreme Court of 14 May 1996, discussed and cited in the decision of Constitu-

tional Tribunal 15/97, id. at 373-74. The Supreme Court had considered the matter not from the point

of view of the constitutionality of the relevant rule, but as a top judicial appellate body, in the process

of so-called “extraordinary appeal” from a decision of the Supreme Administrative Court (NSA),

which had considered the matter in 1993. 31

Id., cited at 373-74. 32

Id. at 376, quoting its decision P. 2/87 of 3 March 1987. 33

Id. at 378 34

Id. at 378. 35

Id. at 381. 36

Id. at 381. 37

Id. at 381. 38

Id. at 382. 39

Decision 9/1990, discussed in Kim Lane Scheppele, “Women's Rights in Eastern Europe”, East Europ.

Constit. Rev. 4:1 (Winter 1995): 66-69 at 69. 40

Id. at 69. 41

For examples of such publicly stated views in Poland, see Helsinki Committee, supra note 4 at 218-19. 42

Decision 14/1995 of 13 March 1995, translated in East European Case Reporter of Constitutional Law

2 (1995) at 194-200, and in László Sólyom & Georg Brunner, Constitutional Judiciary in a New

Democracy: The Hungarian Constitutional Court (University of Michigan Press: Ann Arbor, 2000) at

316-22. The references below are to the latter edition. 43

Id. at 318. 44

Id. at 320. 45

Id. at 320. 46

Decision of 25 June 1999, no. 20/1999, summarized in Bull. Const. Case-Law 1999 (3): 389-90, no.

HUN-1999-3-005.47

Decision no. 81 of 15 July 1994, Curtea Constitu ional - Decizii de Constatare a Neconstitu-

ionalit ii, 1992-1998 (Editura Militar a: Bucure ti, 1999): 335-39. The quotations that follow are

from the English translation of the Decision, on file with the author. 48

Articles 11 (treaties ratified by the Parliament become part of the domestic law), 20 (the precedence of

ratified international covenants on human rights over domestic law, in cases of conflict) and 26 (the

right to privacy). 49

In the words of the Court, art. 200 was unconstitutional in so far as it applied “to same-sex relations

between adult consenting persons, that are not committed in public and do not produce public

scandal”.50

E.g. the Charter of Fundamental Rights and Freedoms [hereinafter: Czech Charter] Art. 29. 51

E.g. the Czech Charter art. 29 52

E.g. Ukraine art. 24.53

E.g. Hungary art. 66. 54

E.g. Bulgaria art. 47. 55

E.g. Romania art. 46. 56

Art. 29 (2). 57

Art. 6. 58

Art. 34 (3). 59

Art. 70 A. 60

Decision No. 9/1990 (IV.25), discussed in Peter Paczolay, “Human Rights and Minorities in Hungary”,

Journal of Constitutional Law in Eastern and Central Europe 3 (1996): 111-26 at 114-15. 61

Quoted id. at 115.

340 ENDNOTES

62

Quoted id. at 115. 63

Id. at 116. 64

See Ronald Dworkin, Taking Rights Seriously (Duckworth: London, 1977) at 223-39.65

See Andras Sajo, “Protecting Nation States and National Minorities: A Modest Case for Nationalism in

Eastern Europe”, U. Chi. L. Sch. Roundtable (1993): 53-74. 66

See Peter S. Green, “Roma Seeking Sense of Unity to Combat Racial Bias”, New York Times 10 May

2002. The marginalisation, victimisation, economic and political discrimination and extremely poor

living conditions of the Roma minority have been noted by the EU Commission regarding almost

every CEE candidate state in the annual reports on these countries’ progress towards accession; see,

e.g., for Slovakia, 2002 Regular Report on Slovakia’s Progress Towards Accession, Commission of

the European Communities, Brussels 9 October 2002, SEC(2002) 1410, available at

http://europa.eu.in/comm/enlargement/report2002/sk_en.pdf, at 30; for Lithuania, 2002 Regular

Report on Lithuania’s Progress Towards Accession, Commission of the European Communities,

Brussels 9 October 2002, SEC(2002) 1406, available at http://europa.eu.in/comm/

enlargement/report2002/lt_en.pdf, at 30; for Hungary, see 2002 Regular Report on Hungary’s

Progress Towards Accession, Commission of the European Communities, Brussels 9 October 2002,

SEC(2002) 1404, available at http://europa.eu.in/comm/enlargement/report2002/hu_en.pdf, at 31; on

Czech Republic, see 2002 Regular Report on Czech Republic’s Progress Towards Accession,

Commission of the European Communities, Brussels 9 October 2002, SEC(2002) 1402, available at

http://europa.eu.in/comm/enlargement/report2002/cz_en.pdf, at 3-32. 67

There are some minor exceptions to this rule; for example, in the 2002 parliamentary elections, four

Roma members of Parliament of Hungary were elected. 68

Sajo, supra note 65 at 54. 69

See Wiktor Osiatynski, “Rights in New Constitutions of East Central Europe”, Columbia Human Rights

Law Review 26 (1994): 111-166 at 134-35. 70

As one observer has noted: “Hungarian politics fosters the interests of Hungarian minorities living

abroad rather than those of non-Hungarian minorities who live on the territory of the Hungarian

state”, Osiatynski id. 137. These words written in 1994 became even more valid recently, with the

controversial “status law” adopted by the Hungarian parliament in June 2001: the law provides for

rights and certain preferences for ethnic Hungarians who live beyond Hungary’s borders, such as the

right to work in Hungary for a three-month period each year, financial support for public-

transportation costs as well as assistance for ethnic-Hungarian students from neighbouring states to

study in universities in Hungary, and also assistance to ethnic Hungarians who live in their home

countries who have more than two children in Hungarian-language schools, see “Constitution Watch:

Hungary”, East Europ. Constit. Rev. 10:4 (Fall 2001): 18-21 at 18-19. 71

They were not all ethnic Russians but also other nationalities for whom Russian was the mother tongue

(such as Belorussians, Ukrainians etc). 72

Vello Pettai, “Democratic Norm Building and Constitutional Discourse Formation”, paper presented at

the workshop “Rethinking the Rule of Law in Post-Communist Europe”, European University

Institute, Florence 22-23 February 2002 (text on file with the author), at 23. 73

For details, see Antonina Zhelyazkova, “The Bulgarian Ethnic Model”, East Europ. Constit. Rev. 10

(Fall 2001): 62-66 at 62-63. 74

In 1992, the population census showed Turks constituting 9.4% of population at that time, and Roma,

3.7%, see id. at 66. 75

See Nikolai Petrov, “Political Institutions and the Regulation of Ethnic Conflicts: Russia's Experience”,

paper presented at Conference on “Legal Framework to Facilitate the Settlement of Ethno-Political

Conflicts in Europe”, Baku 11-12 January 2002 (text on file with the author), at pp. 2-3. 76

Id. at 7. 77

Id. at 3. 78

Will Kymlicka, "Western Political Theory and Ethnic Relations in Eastern Europe", in Will Kymlicka

& Magda Opalski, eds., Can Liberal Pluralism be Exported? Western Political Theory and Ethnic

Relations in Eastern Europe (Oxford University Press 2001): 13-106 at 61. 79

In Part 6 of this chapter. 80

Albania art. 20; Belarus art. 15 and 50, Croatia art. 15, Czech Charter art. 25, Estonia art. 52 and 37,

Georgia art. 38, Hungary art. 68, Latvia art. 114, Lithuania art. 37, Macedonia art. 48, Moldova art.

35, Poland art. 35, Romania art. 6 and 32, Russia art. 26, Slovakia art. 34, Slovenia art. 11 and 61, the

ENDNOTES 341

Ukraine art. 10 and 53, Serbia and Montenegro Charter art. 52, Montenegro art. 34 and 68-73, and

Serbia art. 49 and 32. 81

Art. 6. 82

Art. 68 (2). See also the constitutions of Albania art. 20, Belarus art. 50, Czech Charter art. 25, Hungary

art. 68, Macedonia art. 48 (4), Slovakia art. 34, Romania art. 32 (3), the Ukraine art. 53, Serbia and

Montenegro Charter art. 52, Montenegro art. 68 and Serbia art. 32. 83

Art. 48 (2). 84

Art. 51 (2). 85

Art. 68 (2) and (3). 86

Art. 73. 87

Art. 7. 88

Art. 48.89

Heading at art. 64. 90

Art. 64. 91

See András László Pap, “Representation or Ethnic Balance: Ethnic Minorities in Parliaments”, Journal

of East European Law 7 (2000): 261-339 at 289. 92

This particular quote is taken from article 6 of the Romanian constitution. The following constitutions

have similar provisions: Albania art. 20; Croatia art. 15; Czech Charter art. 25; Georgia art. 38;

Latvia art. 114; Lithuania art. 37; Macedonia art. 48; Poland art. 35 (1), although section 2 of the same

article uses the language of group rights; Romania art. 6; Slovakia art. 34; Slovenia art. 61, although

note the exception relating to Hungarian and Italian minorities); Ukraine art. 53 and Serbia art 32. 93

Art. 68 (4). But note that the statute on the rights of national and ethnic minorities adopted on 7 July

1993 uses both the language of collective and individual rights, see Paczolay, supra note 60 at 123. 94

Thus, art. 64 states that: “The autochthonous Italian and Hungarian ethnic communities and their

members shall be granted the right to…”.95

Art. 35 (2). 96

Art. 35 (1). For other examples of the mixed use of both group- and individual rights language, see

Estonia art. 49-51. 97

As an account of the actual, authoritative legal situation of the United States this is certainly an over-

the U.S. Supreme Court allowed Amish families to keep their children out of school up to a certain

age (see Wisconsin v. Yoder, 406 U.S. 205 (1994)), or when it upheld Native American tribal law that

imposed patrilineal kinship rules that limited women's marital choices (see Santa Clara Pueblo v.

Martinez, 436 U.S. 49 (1978)), it clearly recognised the legal weight of group-based claims for

treatment different to that accorded by universally binding legal rules. Similar group-based thinking is

visible in the enhanced legal protection of those who are victims of crimes motivated by hatred of a

group (in the form of enhanced punishment for hate crimes, see Wisconsin v. Mitchell, 508 U.S. 476

(1993)). On the qualified nature of the group/individual rights distinction in U.S. law, see Jack

Greenberg, “Affirmative Action in Higher Education: Confronting the Condition and Theory”, Boston

College Law Review 43 (2002): 521-621 at 580-81. 98

See Dimitrina Petrova, “Racial Discrimination and the Rights of Minority Cultures”, in Sandra

Fredman, ed., Discrimination and Human Rights: The Case of Racism (Oxford University Press:

Oxford 2001) at 65; Miriam J. Aukerman, “Definitions and Justifications: Minority and Indigenous

Rights in a Central/East European Context”, Human Rights Quarterly 22 (2000): 1011-1050 at 1029-

30.99

The terminology is of J.A. Laponce, discussed by Aukerman, id. at 1029. 100

See Sajo, supra note 65 at 70-71. 101

Michel Rosenfeld, “Can Human Rights Bridge the Gap between Universalism and Cultural

Relativism? A Pluralist Assessment Based on the Rights of Minorities”, Columbia Human Rights Law

Review 30 (1999): 249-84 at 254. 102

Brian Barry, Culture and Equality (Polity: Cambridge, 2001) at 134. 103

“All post-communist states of the region claim adherence to liberal constitutionalism, and no national

minority . . . would question main liberal tenets”, Nenad Dimitrijevi , “Ethno-Nationalized States of

246-69 at 247, emphasis added.

simplification: the rejection of group rights is not absolute in the United States law. For example, when

Eastern Europe: Is There a Constitutional Alternative?”, Studies in East European Thought 54 (2002):

342 ENDNOTES

104

Tibor Várady, “On the Chances of Ethnocultural Justice in East Central Europe”, in Kymlicka &

Opalski, supra note 78: 135-49 at 147-48. 105

Quoted in Stephen Deets, “Reconsidering East European Minority Policy: Liberal Theory and

European Norms”, East European Politics & Societies 16 (2002): 30-53 at 49. 106

Alexander Ossipov, “Some Doubts about ‘Ethnocultural Justice’”, in Kymlicka & Opalski, supra note

78: 171-85 at 175. 107

Petrova, supra note 98 at 66. See similarly Rosenfeld, supra note 101 at 257. 108

Aukerman, supra note 98 at 1032. 109

Boris Tsilevich, “New Democracies in the Old World”, in Kymlicka & Opalski, supra note 78: 154-70

at 159. 110

Kymlicka, supra note 78 at 89 n. 44. 111

The Constitutions containing no provision relating to an official language are those of Bosnia and

Herzegovina, the Czech Republic, Hungary, and Russia. 112

The exception, containing no such right, is the Constitution of Bosnia and Herzegovina. 113

Belarus art. 50, Bulgaria art. 36 (2), Croatia art. 15 (2), Czech Charter art. 25 (1), Georgia art. 38 (1),

Hungary art. 68 (2), Russia art. 26, Slovakia art. 34 (1), Slovenia art. 61, Ukraine art. 10, Serbia art.

49, Montenegro art. 68. 114

Of this group, only the Constitutions of Croatia, Hungary, Ukraine and Montenegro do state in

express terms that the right is for minority groups. 115

Albania art. 20 (1), Latvia art. 114, Lithuania art. 37, Macedonia art. 48 (2), Moldova art. 10 (2),

Poland art. 35 (1), Romania art. 6 (1). 116

Macedonia art. 7 (2) and (3), Serbia art. 8, Montenegro art. 9, and Serbia and Montenegro Charter art.

52.117

Czech Charter art. 25 (2), Estonia art. 51 and 52, Slovakia art. 34 (2), Slovenia art. 62, and Montenegro

art. 72. The Constitution of Montenegro uses both these techniques for official uses of minority

languages. The Estonian Constitution states that the right to an official use (not the exclusive official

use!) of a minority language exists when the majority of the residents of any given locality belong to

the minority in question. 118

Albania art. 20 (2), Belarus art. 50, Bulgaria art. 36 (2), Czech Republic art. 25 (2), Estonia art. 37 (4),

Hungary art. 68 (2), Macedonia art. 48 (4), Moldova art. 35 (2), Romania art. 32 (3), Russia art. 26,

Slovakia art. 34 (2), Ukraine art. 53, Montenegro art. 68, Serbia art. 32, and Serbia and Montenegro

Charter art. 52. The Estonian Constitution only allows for this right to be exercised in schools

specially established for minorities. 119

Belarus, Czech Republic, Macedonia, Romania, Slovakia, Slovenia, Ukraine, Montenegro, Serbia. 120

Macedonia art. 48 (4) and Moldova art. 35 (3). 121

Art. 36 (1). 122

Albania art. 28 (1), Bosnia and Herzegovina (ECHR) art. 6 (3) (a), Croatia art. 24 (2), Estonia art. 21

(1), Poland art. 41 (3), Romania art. 23 (5), Montenegro art. 22, and Serbia and Montenegro Charter

art. 16. 123

Albania art. 31, Bosnia and Herzegovina (ECHR) art. 6 (3) (e), Czech Charter art. 37 (4), Moldova art.

118, Romania art. 127 (2), Serbia art. 123 and Serbia and Montenegro Charter art.16. 124

Decision 8/96 of 26 August 1997, summarized in Bull. Constit. Case Law (1997, no. 2): 252-53, SVK-

1997-2-007.125

Decision U.br.49/98 of 20 May 1998, described in Bull. Constit. Case Law (1998 no. 2) at 326, MKD-

1998-2-004.126

Decision U.br.36/98 of 25 November 1998. 127

Decision U.br. 32/99, of 9 June 1999, described in Bull. Const. Case-Law 1999 (2) at 286-87, MKD-

1999-2-007.128

Art. 27. 129

Janusz Trzci ski, Remarks about Article 27, in L. Garlicki, ed., Konstytucja Rzeczypospolitej Polskiej:

Komentarz (Wydawnictwo Sejmowe: Warszawa 1999) (loose leaf). 130

Id. at 4 (quoting, approvingly, J. Bo ).131

Id. at 4. 132

Decision W. 7/96 of 14 May 1997, Orzecznictwo Trybuna u Konstytucyjnego: Rok 1997 (C.H. Beck:

Warszawa 1998) at 770-96.

ENDNOTES 343

133

Trzci ski, supra note 129 at 3; Jerzy Oniszczuk, Konstytucja Rzeczypospolitej Polskiej w orzecznictwie

Trybuna u Konstytucyjnego (Zakamycze: Kraków, 2000) at 230. 134

Decision W. 7/96, at 773. 135

Id. at 796. 136

Professor Trzci ski’s authoritative status on this particular issue is beyond any doubt because, before

having written the constitutional commentary from which this excerpt is quoted, he had authored the

Constitutional Tribunal's decision of 14 May 1997. 137

Trzci ski, supra note 129 at 4-5. 138

Petai, supra note 72 at 22. 139

Vello Pettai, “Definitions and Discourse: Applying Kymlicka's Models to Estonia and Latvia”, in

Kymlicka & Opalski, supra note 78 at 267, footnote omitted. 140

See Kymlicka, supra note 78 at 76-9. 141

Pettai, supra note 72 at 26.142

President Meri initially vetoed the law, and after the parliament (the Riigikogu) adopted the law

without any of the amendments postulated by the President, the President exercised his constitutional

right to challenge the law before the Constitutional Review Chamber. I am indebted for this

description of the decision and its background to Pettai, supra note 72 at 26-29.143

Decision 3-4-1-1-98 of 5 February 1998, summarised in Bull. Const. Case Law 1998 (1): 37-8, EST-

1998-1-001.144

Pettai, supra note 72 at 28. 145

In November 1998 the Constitutional Review Chamber considered a challenge, which reached it via a

lower court, to the original Language Act (not the 1997 amendments) requirements for local deputies;

see id. at 28-29. 146

Id. at 29. 147

Pap, supra note 91 at 262 and 267. 148

Id. at 263. 149

For a more detailed description, see id. 284-85. 150

Id. at 285-86. 151

Art. 59 (2). 152

See Pap, supra note 91 at 286-88. 153

See Stephen Deets, “Reconsidering East European Minority Policy: Liberal Theory and European

Norms”, East European Politics & Societies 16 (2002): 30-53 at 45-48. 154

Art. 80 (3). 155

For a detailed description of the complicated system, see Pap, supra note 91 at 288-89. 156

Art. 68 (3). 157

Art. 68 (4). 158

Paczolay, supra note 60 at 125. 159

Deets, supra note 153 at 49-51. 160

See Pap, supra note 91 at 320-24. 161

See 2002 Regular Report on Hungary’s Progress Towards Accession, Commission of the European

Communities, Brussels 9 October 2002, SEC(2002) 1404, available at http://europa.eu.in/

comm/enlargement/report2002/hu_en.pdf, at 20. 162

The Law on Parties of July 1991, see Pap, supra note 91 at 279-80. 163

Art. 11 (4). 164

Pap, supra note 91 at 280, footnote omitted. 165

See id. at 282-83. 166

Decision 19/98 of 15 October 1998, summarised in Bull. Constitution. Case Law 3 (1998) 460-62,

SVK-1998-3-010.167

Decision U-I-283/94 of 12 February 1998. 168

For descriptions and analysis of the decision, see Emil Konstantinov, “Turkish Party in Bulgaria

Allowed to Continue”, East Europ. Constit. Rev. 1:2 (Summer 1992): 11-12; Jean-Piere Massias,

Droit constitutionnel des États d'Europe de l'Est (Presses Universitaires de France: Paris, 1999) at

161-62; Anna M. Ludwikowska, S downictwo konstytucyjne w Europie rodkowo-Wschodniej w

okresie przekszta ce demokratycznych (TNOiK: Toru 1997) at 137-39; Herman Schwartz, The

Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago Press: Chicago,

2000) at 172-73.

344 ENDNOTES

169

There was a second constitutional ground cited by the petition: the ban on organisations that call into

question the sovereignty and territorial integrity of the country, or that foment ethnic or religious

enmity and the violation of the rights and freedoms of citizens (Art. 44 (2)). The petitioners claimed

that, by favouring a policy of ethnic assimilation of Bulgarian Moslems into the Turkish minority, the

MRF promotes ethnic and religious confrontation. Both for our purposes, and in the argument of the

Court, the claim based on Art. 11 (4) was dominant. 170

See Kymlicka, supra note 78 at 55. 171

Antonina Zhelyazkova, “The Bulgarian Ethnic Model”, East Europ. Constit. Rev. 10:4 (Fall 2001): 62-

66 at 65. 172

See Konstantinov, supra note 168 at 11. 173

Quoted in Venelin Ganev, “Foxes, Hedgehogs and Learning: Notes on the Past and Future Dilemmas

of Postcommunist Constitutionalism”, paper presented at the workshop “Rethinking the Rule of Law

in Post-Communist Europe”, European University Institute, Florence 22-23 February 2002, at 12. 174

There are 12 judges on the Constitutional Court but only eleven took part in the consideration of the

MRF case (one judge was ill). The rule that the constitutional requirement of “more than half of the

votes of all Justices” (art. 151 (1)) means a requirement of at least seven (regardless of the number of

Justices participating in the vote) for the decision of unconstitutionality does not have a clear textual

mooring but, as Ganev explained, evolved as an established practice that can now can be viewed as a

constitutional convention, see Venelin Ganev, “The Rise of Constitutional Adjudication in Bulgaria”,

in Wojciech Sadurski, ed., Constitutional Justice, East and West (Kluwer Law International: The

Hague, 2002): 247-64 at 253.175

Id. 176

Zhelyazkova, supra note 171 at 65. 177

See Cindy Skach, “Rethinking Judicial Review: Shaping the Toleration of Difference?”, paper pre-

sented at the workshop “Rethinking the Rule of Law in Post-Communist Europe”, European Univer-

sity Institute, Florence 22-23 February 2002.

Chapter 9

1 On Spanish model of transition to democracy, see Michel Rosenfeld, “Constitution-Making, Identity

Building, and Peaceful Transition to Democracy: Theoretical Reflections Inspired by the Spanish

Example”, Cardozo Law Review 19 (1998): 1891-1920. 2 See Jon Elster, “Coming to Terms with the Past. A Framework for the Study of Justice in the Transition

to Democracy”, Arch. europ. sociol. 39 (1998): 7-48 at 14, where he defines retroactive justice as

“political decisions made in the immediate aftermath of the transition and directed towards individuals

on the basis of what they did or what was done to them under the earlier regime” (footnote omitted);

he also makes it clear that this concept is coextensive with “transitional justice”, id. at 7. 3 Id. at 46.

4 Adam Michnik, “The Rebirth of Civil Society”, Public lecture at the London School of Economics, 20

October 1999, http://www.lse.ac.uk/Depts/global/Michnik89.htm. 5 Vojtech Cepl, “Ritual Sacrifices”, East Europ. Constit. Rev. 1:1 (Spring 1992): 24-26 at 25.

6 Ji ina Šiklová, “Lustration or the Czech Way of Screening”, in Martin Krygier & Adam Czarnota, The

Rule of Law after Communism (Ashgate: Dartmouth 1999): 248-58 at 254-55. 7 Eric A. Posner & Adrian Vermeule, “Transitional Justice as Ordinary Justice”, Harvard Law Review

117 (2004): 761-825 at 806. 8 Aviezer Tucker, “Paranoids May Be Persecuted: Post-Totalitarian Retroactive Justice”, Arch. europ.

sociol., 40 (1999): 56-100 at 64. 9 Ruti G. Teitel, Transitional Justice (Oxford University Press: Oxford 2000) at 98.

10 Šiklová, supra note 6 at 255.

11 Jon Elster, “Retribution in the Transition to Democracy”, in Arend Soeteman (ed.), Pluralism and Law

(Kluwer Academic Publishers: Dordrecht, 2001): 19-36 at 23. 12

An analogy may be drawn to a central argument by Lee Bollinger, who warns against restraints upon

racist speech in the US on the basis that such restraints may originate from wrongful motives, such as

sheer psychological intolerance, or the sense of guilt for not having helped European Jews during the

Holocaust, see Lee Bollinger, The Tolerant Society (Oxford University Press: Oxford 1986) at 129-

30, 274-75 n. 17.

ENDNOTES 345

13

Cepl, supra note 5 at 25. 14

I cannot resist the temptation of quoting this remarkable passage, which illustrates nicely the uncertain

boundaries between irrational vengeance and a more respectable sense of retribution as well as

consequentialist argument: “Most supporters of lustration in post-communist universe are not very

good at articulating their anxieties or grounding them in reality. This created the impression that they

were looking for vengeance in western non-paranoid eyes. But their paranoia aside, persecuted they

were, and though they could not articulate their fears of the nomenklatura, they had good reason to

fear a class of people that survive by stealing anything that can be moved and corrupting any being

with a soul”, Tucker supra note 8 at 97-98. 15

From a statement of the Chairman of the Senate of Czech Republic on the amendment to the lustration

law, quoted in the decision of the Czech Constitutional Court Pl. US 9/01 of 5 December 2001, see

http://www.concourt.cz/angl–verze/doc/p-9-01.html at 5. 16

From the Hungarian Constitutional Court Decision 60/1994 of 24 December 1994 (discussed below) in

László Sólyom & Georg Brunner, Constitutional Judiciary in a New Democracy: The Hungarian

Constitutional Court (University of Michigan Press: Ann Arbor, 2000): 306-15 at 312. 17

This is a summary of the petitioners’ objections provided by the Czech Constitutional Court in its

Decision 19/93 of 21 December 1993, reprinted in East European Case Reporter 4 (1997): 149-174.18

As summarized by the Constitutional Court, id. at 152. 19

Id. at 152. 20

See text accompanying footnote 17 above. 21

Id. at 155. Article 15 (2) of the Czech Charter (“freedom of scientific research”) was one of the grounds

for a challenge to the Law. 22

Id. at 155. 23

Ji í P ibá , “Moral and Political Legislation in Constitutional Justice: A Case Study of the Czech

Constitutional Court”, J.E. Eur. L. 8 (2001): 15-34 at 20-21.24

Perhaps better translated as the Institute of National Remembrance. The Polish word “pami ”, which

features in the name of the Institute, has both of these meanings. 25

Teitel supra note 9 at 81. 26

Id. at 83. 27

Bruce Ackerman, The Future of Liberal Revolution (Yale University Press: New Haven, 1992) at 71. 28

Natalia Letki, “Lustration and Decommunisation in East-Central Europe”, Europe-Asia Studies 54

(2002): 529-52 at 539, footnote omitted. 29

In addition, it has been claimed (not inaccurately) that Western ideas about decommunisation have been

partly shaped by the selectiveness and bias of Westerners’ contacts with the new élites in post-

communist states: “the Western visitors come for a short time, stay only in Prague or Budapest and

talk with a few English speaking intellectuals with dissident background. The kind of locals that

visitors are likely to interview are likely to be eager to contribute to the integration of their country in

Europe”, Tucker supra note 8 at 75. There is therefore an element of self-perpetuation of the views

hostile to decommunisation: opinions in CEE are partly shaped by Western attitudes, which, in turn,

are partly shaped by selectively sampled informers in CEE. 30

Id. at 73. 31

Resolution of the Parliamentary Assembly of Council of Europe no. 1096 of 27 June 1996 on measures

to dismantle the heritage of former communist totalitarian systems, http://stars.coe.fr/

Main.asp?link=http%3A%2F%2Fstars.coe.fr%2FDocuments%2FAdoptedText%2Fta96%2FERES10

96.htm. For a working document, referred to in the Resolution, entitled “Measures to dismantle the

heritage of former communist totalitarian systems”, Doc. 7568 of 3 June 1996 see http://stars.coe.fr/

Main.asp?link=http%3A%2F%2Fstars.coe.fr%2FDocuments%2FWorkingDocs%2FDoc96%2FEDO

C7568.htm.32

Paragraph 11 of the Resolution 1096, supra note 31. 33

Id., paragraph 12. 34

Id. paragraph 12, see also Doc. 7568, supra note 31, paragraph 16.35

Teitel, supra note 9 at 164. 36

Elster, supra note 2 at 14. 37

The German legal solution was occasionally referred to, with approval, by CEE Constitutional Courts

when scrutinising lustration and decommunisation measures in their own countries; see, for example,

Constitutional Court of Lithuania, Decision of 4 March 1999, http://www.lrkt.lt/1999/n9a0304a.htm,

346 ENDNOTES

Part 2 of Court’s decision; Constitutional Court of Czech Republic, Decision 19/93 of 21 December

1993, in East European Case Reporter 4 (1997): 149-174 at 174 n. 1. 38

Glaring exceptions to this general rule are provided by many former member states of the USSR

(though not the Baltic ones), including Russia itself, in which neither “lustration” or

“decommunisation” ever occurred – less, however, by virtue of a principled, consensual decision to

adopt this form of reconciliation, and more “by default”, see Elster supra note 2 at 18. 39

Noel Calhoun, “The Ideological Dilemma of Lustration in Poland”, East European Politics and

Societies 16 (2002): 494-520 at 495. 40

Aleks Szczerbiak, “Dealing with the Communist Past or the Politics of the Present? Lustration in Post-

Communist Poland”, Europe-Asia Studies 54 (2002): 553-72 at 570, emphasis added. 41

Cepl supra note 5 at 24. 42

Act No. 451/1991 Sb. of 4th October 1991 43

Helga A. Welsh, “Dealing with the Communist Past: Central and East European Experiences after

1990”, Europe-Asia Studies 48 (1996): 413-428 at 415. 44

“Constitution Watch: Czech Republic”, East Europ. Constit. Rev. 4:4 (Fall 1995): 8-10 at 9. 45

Act no. 422/2000. 46

Act no. 279/1992 provided for lustration of candidates for work in the police. 47

Act no. 147/2001. 48

Constitutional Court of the Czech and Slovak Federal Republic Decision No. 1/92 of 26 November

1992, see http://www.concourt.cz/angl_ver/decisions/doc/p-1-92.html.49

Id. at 7. 50

Id. at 8. 51

Id. at 8. 52

See, similarly, Teitel supra note 9 at 165-66. 53

Decision 1/92, supra note 48 at 9. 54

Id. at 10. 55

Id. at 9. 56

Id. at 9. 57

Decision 9/01 of 5 December 2001, see http://www.concourt.cz/angl–verze/doc/p-9-01.html.58

Id. at 3. 59

Id. at 15-16. 60

Id. at 18. 61

Id. at 18. 62

Id. at 19. 63

“Constitution Watch: Albania”, East Europ. Constit. Rev. 5:1 (Winter 1996): 2-3. 64

For a detailed discussion of this decision see Kathleen Imholz, “A Landmark Constitutional Court

decision in Albania”, East Europ. Constit. Rev. 2:3 (Summer 1993): 23-5. 65

The statute “On the Assessment of the USSR Committee of State Security (NKVD, NKGB, MGB,

KGB) and Present Activities of the Regular Employees of This Organisation” of 16 July 1998. 66

Decision of 4 March 1999, http://www.lrkt.lt/1999/n9a0304a.htm. I discuss this decision also in

67 Id., Section 5 of the Court’s decision.

68 Id., Section 5.2 of the Court’s decision.

69 In the first elections after the fall of the Zhivkov rule, held in June 1990, the post-Communist Bulgarian

Socialist Party (BSP) won a solid majority in the Grand National Assembly; after the collapse of the

BSP government in September 1990, a coalition led by both the BSP and the liberal-democratic

Union of Democratic Forces (UDF) was formed. 70

Decision 60/1994 (X11.24) of 22 December 1994, reprinted in East European Case Reporter of

Constitutional Law 2 (1995): 159-193; excerpts in Sólyom & Brunner, supra note 16 at 306-15. The

references below are to the excerpts in the latter volume. 71

“[T]he Constitutional Court must consider the transition as a historical fact”, id. at 312. 72

Law LXII/1996. For a political background see Gábor Halmai & Kim Lane Scheppele, “Living Well Is

the Best Revenge: The Hungarian Approach to Judging the Past”, in A. James McAdams (ed),

Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre

Dame Press, 1997): 155-84 at 176-77. 73

“Constitution Watch: Hungary”, East Europ. Constit. Rev. 11:3 (Summer 2002): 22-26 at 25.

Chapter 10, pp. 279.

ENDNOTES 347

74

Sejm [The lower chamber of Polish parliament] Resolution of 28 May 1992, described in Andrzej S.

Walicki “Transitional Justice and the Political Struggles of Post-communist Poland” in McAdams,

supra note 72: 185-238 at 197-98; see also Wiktor Osiatynski, “Agent Walesa?”, East Europ. Constit.

Rev. 1:2 (Summer 1992): 28-30; Calhoun, supra note 39 at 503-505.75

Decision U. 6/92 of 19 June 1992; Polish text on file with the author, p. 6. 76

Decision W. 5/94 of 14 July 1993, http://www.trybunal.gov.pl/OTK/teksty/otkpdf/1993/W_05_93.pdf.77

Judgment K. 3/98 of 24 June 1998, translation in East European Case Reporter of Constitutional Law 6

(1999) 130-211. The ex-ante review was initiated by the President. 78

Id. at 201-2 (Rymarz, J., dissenting), and at 203-11 (Zdyb, J., dissenting). 79

Id. at 190. 80

Decision K. 39/97 of 10 November 1998, O.T.K. (1998), Item No. 26 at 491-557. 81

Id. at 633-41. 82

Decision K. 39/97, OTK at 525. 83

Id. at 518-19. 84

Decision P. 3/00 of 14 June 2000, http://www.trybunal.gov.pl/OTK/teksty/otkpdf/2000/p_03_00.pdf.85

Id. at 11. 86

For example, a draft law proposed by a centrist party Freedom Union in April 2001, see Jolanta Kroner,

“Precyzyjniej, z domniemaniem niewinno ci, bez donosu poselskiego”, Rzeczpospolita (Warsaw) 9

April 2001 at C1. 87

Decision K 11/02 of 19 June 2002, http://www.trybunal.gov.pl/OTK/teksty/otkpdf/2002/K_11_02.pdf.88

Id. at 3. 89

See id. at 30-34 (Mazurkiewicz, J., dissenting).90

Id. at 34-40 (Safjan, C.J., dissenting); similarly id. at 40-42 (St pie , J., dissenting). 91

Decision 8/92 of 27 July 1992, discussed in Herman Schwartz, The Struggle for Constitutional Justice

in Post-Communist Europe (University of Chicago Press: Chicago, 2000) at 188-89. 92

Decision 11/92 of 29 July 1992. 93

Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in

1991-94), Sofia 10 May 2001. He was one of the dissenting judges in this case. 94

Which is not to say that it was found constitutional. The Bulgarian Constitutional Court takes decisions

by majority; in this particular case, six judges voted to uphold the law, five to strike it down, and one

abstained. There was therefore not a sufficient majority (of seven) to strike down the law but neither

was the law explicitly confirmed as constitutional.95

Decision 1/93 of 11 February 1993, see “Constitution Watch: Bulgaria”, East Europ. Constit. Rev. 2:1

(Winter 1993): 2-3 at 3. 96

Rumyana Kolarova, “Bulgaria: A Self-Restricting Court”, East Europ. Constit. Rev. 2:2 (Spring 1993):

48-50 at 50. 97

“National Assembly Repasses Act Reversing ‘Panev Law’”, BBC Summary of World Broadcasts, 25

March 1995 (available in LEXIS-NEXIS). 98

“Constitution Watch: Bulgaria”, East Europ. Constit. Rev. 6:4 (Fall 1997): 6-10 at 8. 99

Decision no 14/1997 of 22 September 1997. 100

Annual Report 1999, International Helsinki Federation for Human Rights, at http://www.ihf-

hr.org/reports/ar99/ar99bul.htm.101

Decision no. 02/99 of 21 January 1999, summarised in Bull. Const. Case-Law 1999 (1): 28-29, BUL-

1999-1-002.102

“Constitution Watch: Bulgaria”, East Europ. Constit. Rev. 8:1/2 (Winter/Spring 1999): 5-7 at 7. 103

Decision 19/93 of 21 December 1993, reprinted as “Judgment of the Constitutional Court of the Czech

Republic”, Parker Sch. J.E. Eur. L. 1 (1994): 363-91; see also comment by Herman Schwartz, “The

Czech Constitutional Court Decision on the Illegitimacy of the Communist Regime”, Parker Sch. J.E.

Eur. L. 1 (1994): 392-8. See also the same translation in East European Case Reporter 4 (1997): 149-

174. The references below are to the latter source. 104

Id. at 157. 105

Id. at 158. 106

Id. at 157. 107

Id. at 160. 108

For a similar criticism of this aspect of the Court’s decision by a scholar otherwise supportive of the

Court’s jurisprudence, see P ibá , supra note 23 at 28.

348 ENDNOTES

109

Decision 19/93, supra note 103 at 163. 110

Id. at 163. 111

Id. at 166-69. 112

Law of 4 November 1991 on the “Right to Prosecute Serious Criminal Offences Committed Between

December 21 1944 and May2 1990 That Had Not Been Prosecuted For Political Reasons” published

in Journal of Constitutional Law in Eastern and Central Europe 1(1994): 129-157. 113

Constitutional Court decision no. 11/1992 of 5 March 1992, reproduced in Sólyom & Brunner, supra

note 16 at 214-18. 114

Id. at 219. 115

Id. at 221. 116

Halmai and Scheppele, supra note 72 at 164-165.117

Decisions 41/1993 (VI.30) Abh and 42/1993 (VI.30)Abh. 118

Decision 53/1993 (X.13) Abh. 119

Stephen J. Schulhofer, comments in the symposium “Dilemmas of Justice”, East Europ. Constit. Rev.

1:2 (Summer 1992): 17-22 at 18. 120

Id. at 18. 121

Decision 11/1992 of 5 March 1992 reproduced in Sólyom & Brunner, supra note 16 at 223. 122

See id, especially at 221-22. 123

Posner & Vermeule, supra note 7 at 797. 124

See, e.g., Spencer Zifcak, “Hungary’s Remarkable, Radical, Constitutional Court”, Journal of Const.

Law in Eastern and Central Europe 3 (1996): 1-56 at 6-9. 125

Ruti Teitel, “Paradoxes in the Revolution of the Rule of Law”, Yale Journal of International Law 19

(1994): 239-47 at 244-45. 126

Id. at 246. 127

Michel Rosenfeld, comments in the symposium “Dilemmas of Justice”, supra note 119 at 20. 128

It is estimated that only a few hundred Czechs lost their jobs due to lustration, and that around five

percent of the members of parliament were forced to resign, see Tucker supra note 8 at 84. 129

As Adam Czarnota and Piotr Hofmanski observe, “The attempt to make a legal break with the past …

taken together with the simultaneous recognition of the continuity of the state, and with that [sic] the

continuity of the system of law, amounts to an attempt to square a circle”, Adam Czarnota & Piotr

Hofmanski, “Can we do Justice to the Past?”, in Krygier & Czarnota, supra note 6: 197-211 at 199. 130

Carlos Santiago Nino, Radical Evil on Trial (Yale University Press: New Haven, 1996) at 120. 131

Posner & Vermeule, supra note 7 at 795. 132

For an account, see Carlos H. Acuña & Catalina Smulovitz, “Guarding the Guardians in Argentina:

Some Lessons about the Risks and Benefits of Empowering the Courts”, in McAdams, supra note 7:

93-122 at 102. 133

Teitel, supra note 9 at 14. 134

Constitutional Court decision of 5 March 1992, no. 11/1992, see supra notes 113-115 and the accom-

panying text.135

See, e.g., the decision of Constitutional Tribunal K.7/90 of 22 August 1990 (upholding the consti-

tutionality of the law that deprived ex-high officials of the Communist Party of their high pensions,

based on the argument that their early retirement law was unjust in the first place); see similarly

decision U.6/93 of 12 April 1994 (a decision by the Minister of Industry discontinuing the right to

free electricity of employees of the energy industry, held constitutional because the right to free

energy violated equality before the law).

Chapter 10

1 Bosnia and Herzegovina, Georgia, Lithuania and Montenegro.

2 Compare, e.g., Basic Law of F.R.G. article 5 (freedom of expression can be subject to limitations by

statutes ‘for the protection of youth” and for the protection of “personal honour”) with article 10

(privacy of letters, posts and telecommunications may be restricted by statutes in order “to protect the

free democratic order or the existence or security of the Federation) and with article 11 (freedom of

movement may be restricted by statutes when necessary to protect the free democratic order, to

ENDNOTES 349

combat the danger of epidemics, to deal with natural disasters or grave accidents, to protect young

people or to prevent crime). 3 Art. 24 (1).

4 Art. 24 (4).

5 As examples of such rights provisions in the first category of constitutions, consider the right to strike in

the Constitution of Lithuania (Art. 51: “(1) Employees shall have the right to strike in order to protect

their economic and social interests. (2) The restrictions of this right, and the conditions and

procedures for the implementation thereof shall be established by law”); consider also the right to vote

in Lithuania (art. 20) and Georgia (art. 28). 6 Serbia and Montenegro Charter (art. 5), Macedonia (art. 54), Slovenia (art. 15), the Ukraine (art. 64) and

Serbia (art. 11) [note that, hereinafter, a name of a country followed by a number of an article refers to

the provision of the constitution of that country]. The same construction was envisaged by the

abortive project of the charter of rights in Poland in 1992 which explicitly stated: “The rights and

liberties guaranteed by this Charter may be restricted only by statute and only when such a restriction

is envisaged by this Charter”, id. art. 5.2 7 Art. 55 (3).

8 Art. 56 (3).

9 These include the right to life (art. 20), to dignity and against torture (art. 21), to privacy (art. 23 (1)),

etc.10

Decision of 27 March 1996, summarised at http://ks.rfnet.ru/english/codicese.htm, and in the Bull.

Constit. Case Law 1996 (2): 253-55. 11

Belarus, art. 23 (1). Other general clauses of this type are: Albania (art. 17); Belarus (art. 23); Croatia

(art. 16), Czech Charter (Art. 4 (2, 3, 4)); Estonia (art. 11), Hungary (art. 8(2)); Latvia (art. 116),

Moldova (art. 54), Poland (art. 31), Romania (art. 49); Slovakia (art. 13). 12

For instance, the Estonian constitution mentions only “necessity in a democratic society” and the

requirement that the limits must not “distort the nature of rights and liberties”, Art. 11. 13

For instance, the Albanian constitution provides, inter alia, that the rights limitations may not exceed

the limitations provided for in the ECHR, Art. 17 (2). 14

Moldova Art. 54 (2); Romania art. 49 (2). 15

E.g., Polish Constitutional Tribunal, Decision K.23/98 of 25 February 1999. 16

Consider these two examples. Article 29 of the Moldovan constitution allows for the following grounds

for restricting the right to the inviolability of the domicile: execution of an arrest warrant; preventing

the threat to life, physical integrity or the property of a person, and preventing the spread of a disease.

Art. 26 of the Albanian Constitution envisages the following grounds for limiting the right against

forced labour: execution of a judicial decision, the performance of military service, or of service

resulting from a state of war, a state of emergency, or a natural disaster. This is the way in which the

Constitution fleshes out the vague general clause (art. 17) to specific fact situations in which the limits

on a particular right may be relevant. 17

See Poland Art. 31 (3), Estonia Art. 11, Russia Art. 55 (3), Slovenia Art. 15 (2). 18

See Albania Art. 17(1); Moldova Art. 54 (2); Romania Art. 49 (2). 19

See Romania, Art. 49. 20

The Slovenian Constitution has a “necessity” but not a “proportionality” requirement, Art. 15 (2). 21

Decision U-I-25/95, of 27 November 1997, at http://www.us-rs.si/en/casefr.html, para. 47. 22

More precisely, the requirement of necessity is present in: Articles 8-11 of the Convention rights to

respect for privacy, to freedom of thought, conscience and religion, to freedom of expression, and to

freedom of association and assembly, respectively; Article 2 of Protocol No. 4 (liberty of movement

within a state); and Article 1 of the Protocol No. 7 (right of an alien not to be expelled before certain

conditions are met). 23

See e.g. Goodwin v. United Kingdom 22 E.C.H.R. 123, 143-4 (1996); for discussion see Alastair

Mowbray, Cases and Materials on the European Convention of Human Rights (Butterworths, London

2001) at 411-2, 448. 24

Marc-Andre Eissen, quoted by Mowbray, id. at 413. 25

See P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human

Rights, 3rd

ed. (Kluwer Law International: The Hague, 1998) at 81. 26

The three tiers are the principles of suitability (relevance), necessity, and proportionality sensu stricto.

350 ENDNOTES

27

Robert Alexy, “Constitutional Rights, Balancing, and Rationality”, Ratio Juris 16 (2003): 131-40 at

135.28

Id. at 135, emphasis added. 29

Id. at 135, emphasis in original. 30

Gerald Gunther, “The Supreme Court, 1971 Term – Foreword: In Search of Evolving Doctrine on a

Changing Court: A Model for a Newer Equal Protection”, Harvard Law Review 86 (1972): 1-49 at 8.

These words applied to the so-called “strict scrutiny” of “suspect classifications” under the 14th

Amendment to the US Constitution.31

Art. 31 (3) of Constitution. Before the Constitution of 1997, under the so called “Little Constitution”,

which provided no textual basis for “necessity” or “proportionality” tests, the Constitutional Tribunal

read the requirement of proportionality into the general principle of the rule of law, see Jerzy

Oniszczuk, Konstytucja Rzeczypospolitej Polskiej w orzecznictwie Trybuna u Konstytucyjnego

(Zakamycze: Kraków, 2000), p. 252. 32

Decision no. P.2/98 of 12 January 1999. 33

The word used in the original is “samowola budowlana”, which means building without permission,

but in addition has a strong negative connotation in Polish.34

Decision no. P.2/98 of 12 January 1999, Orzecznictwo Trybuna u Konstytucyjnego w 1999 r. - cz I

(Wydawnictwo Trybuna u Konstytucyjnego: Warszawa 2000): 13-29 at 15. 35

This article lists the grounds upon which the constitutional rights can be legitimately restricted by

statutes.36

Decision no. P.2/98, at 26. 37

Id. at 20. 38

Id. at 23. 39

See Dieter Grimm, “Human Rights and Judicial Review in Germany”, in David M. Beatty, ed., Human

Rights and Judicial Review: A Comparative Perspective (Martinus Nijhoff: Dordrecht, 1994): 267-96.40

Decision of 28 April 2000, no. 3-4-1-6-2000, at http://www.nc.ee/english/const/2000/3-4-1-6-00i.html.41

Id., section 13 of the Decision. 42

Id, section 16. 43

Id. section 17.44

Decision no. 26/1999 of 8 September 1999, summarised in Bull. Constit. Case-Law 1999 (3): 392,

HUN-1999-3-008.45

Decision no. 793/B/1997 of 24 February 1998, summarised in Bull. Constit. Case-Law 1998 (1): 57-58,

HUN-1998-1-002.46

Decision No 139 of 14 December 1994, http://www.cecl.gr/RigasNetwork/databank/Jurisprudence/

jurisprudence_main.htm.47

Decision No 71 of 1993. 48

Decision No 139 of 1994. 49

Interview with Mr Horatiu Dumitru in Bucharest, 10 March 2001. Mr Dumitru, a private lawyer at the

time of the interview, had worked as lawyer for the Government at the time of the Constitutional

Court's decision discussed in the main text. 50

This is reinforced by a contrast with section (2), which is worded in characteristically right-oriented

terms: “Citizens have the right to pensions, paid maternity leave…”, etc. 51

Namely, the defence of national security, public order, health or morals, the prevention of a natural

calamity or extremely grave disaster. 52

Decision of 17 May 1996, no. 21/1996, reprinted in László Sólyom & Georg Brunner, Constitutional

Judiciary in a New Democracy: The Hungarian Constitutional Court (University of Michigan Press:

Ann Arbor, 2000): 333-45. 53

Puzzlingly, the Court justifies its decision by recalling the principle that “[r]estricting the right of

association in the interest of protecting third persons from the infringement of their rights and

liberties is constitutional if the restriction is made necessary by the other right and the extent of

restriction is proportionate to the desired aim”, id. at 337, emphasis added. 54

Id. at 339 55

In Joel Feinberg’s language, it is a “single-party paternalism”, see The Moral Limits of the Criminal

Law, vol. 3: Harm to Self (Oxford University Press: New York, 1986) at 9. 56

T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing”, Yale Law Journal 16 (1987):

943-1005.

ENDNOTES 351

57

The Charter of Fundamental Rights of the European Union, “solemnly proclaimed” by the European

Council in Nice in December 2000, spells out expressly the principle of proportionality and the

requirement of necessity (Art. 52.2), in contrast to the European Convention on Human Rights, which

“acquired” the principle of proportionality through the doctrine of the Strasbourg Court. 58

Aleinikoff, supra note 56 at 962. 59

Poland Art. 31 (3), Albania art. 17 (2). 60

Art 4 (4) of Czech Charter, Slovakia art 13 (4); Hungary art 8 (2).61

Moldova Art. 54 (2); Romania Art. 49 (2). 62

Estonia Art. 11. 63

E.g., Albania, which has an “essence” proviso, art. 17 (1), but a relatively weak constitutional court. 64

E.g., one of the most important decisions of the Hungarian Constitutional Court, in which death penalty

was declared unconstitutional, was based, inter alia, on the argument that such a penalty necessarily

intrudes upon the essential content of the right to life; see Decision 23/1990 of 31 October 1990,

reprinted in Sólyom & Brunner, supra note 52 at 118-38.65

Decision no 18/98, of 2 June 1999, Bull. Constit. Case-Law 1999 (1): 44-45, CZE-1999-007. 66

Decision P.2/98, of 12 January 1999.67

Id. at 27. 68

E.g. Albania Art. 17; Czech Charter Art. 4 (1); Moldova art. 54 (1); Poland Art. 31 (3); Romania Art.

49 (1); Slovakia Art. 13 (2). 69

Decision no. U-I-920/1995 and U-I-950/1996 of 15 July 1998, Bull. Constit. Case-Law 1998 (3): 401-

402, CRO-1988-3-015. 70

Decision no. U-I-262/1998 and U-I-322/1998 of 15 July 1998, published (in Croatian) in Narodne

novine, 98/1998, 2434-2437, see Bull. Constit. Case-Law 1998 (3): 401-402. 71

Decision no. U-I-58/1995 and U-I-772/1998, of 5 October 1999, Bull. Constit. Case-Law 1999 (3):

366-367, CRO-1999-3-014. 72

Decision no. U-I-241/1998 of 31 March 1999, Bull. Constit. Case-Law 1999 (1): 33, CRO-1999-1-004.73

Decision of 26 October 1995, http://www.lrkt.lt/1995/n5a1026a.htm. 74

Decision of 19 December 1996, http://www.lrkt.lt/1996/n6a1219a.htm. 75

Decision of 13 February 1997, http://www.lrkt.lt/1997/n7a0213a.htm. 76

Decision of 4 March 1999, http://www.lrkt.lt/1999/n9a0304a.htm. 77

Section 4 of the Court’s decision. 78

Section 6.1 of the Court’s decision. 79

Decision of 10 March 1998, no. 14/97, http://www.lrkt.lt/1998/n8a0310a.htm.80

Section 6 (5) of the judgment. 81

Czech Charter art. 4 (3); Macedonia art. 54 (3); Slovakia art. 13 (3). 82

See Chapter 8.1 above. 83

Decision Pl. US 1/92 of 26 November 1992, http://www.concourt.cz/angl_ver/decisions/doc/list.html.84

Id., at 8.85

E.g. Czech Charter art. 3 (3); Slovak Const. Art. 12 (4). 86

Decision no. PL.ÚS 18/97 of 28 May 1998, summarised in Bull. Constit. Case-Law 1998(2): 299-300;

SVK-1998-2-005.87

Article 25(2): “No person may be forced to perform military duties if it is contrary to his or her

conscience or religious faith or conviction”. 88

Art. 12 (4). 89

Decision no. 12/97 of 25 September 1997, Bull. Constit. Case-Law 1997 (3): 357; BUL-1997-3-003.90

See Laurence H. Tribe, American Constitutional Law (Foundation Press: Mineola, 1988, 2nd ed.) at

681-82.91

Kathleen M. Sullivan, “Categorization, Balancing, and Government Interests”, in Stephen E. Gottlieb,

ed., Public Values in Constitutional Law (Ann Arbor: University of Michigan Press, 1993): 241-68 at

256.92

For such an argument see Wiktor Osiatynski, “Rights in New Constitutions of East Central Europe”,

Columbia Human Rights Law Review 26 (1994): 111-166 at 152-55. 93

Tadeusz Jasudowicz, “Granice korzystania z praw cz owieka - rozwi zania Konstytucji RP na tle

standartów europejskich”, in Cezary Mik, ed., Konstytucja Rzeczypospolitej Polskiej z 1997 roku a

cz onkostwo Polski w Unii Europejskiej (TNOiK: Toru , 1999): 33-73 at 50. 94

Id at 54.

352 ENDNOTES

95

Art. 56 (3). 96

Art. 21 (2). 97

Art. 48. 98

Art. 21 (1). 99

Art. 23 (1). 100

Art. 28. 101

On a distinction between the strength and the scope of rights, see James W. Nickel, Making Sense of

Human Rights (University of California Press: Berkeley, 1987) at 48-50. 102

Albania, Bosnia and Herzegovina and Latvia. 103

See generally Rett R. Ludwikowski, Constitution-Making in the Region of Former Soviet Dominance

(Duke University Press: Durham, 1996) at 230. For an example of duties in a contemporary European

constitution, see Spanish Const., art. 30(1) (declaring that citizens have “the right and the duty to

defend Spain”) (emphasis added); id. at art. 31(1) (declaring that citizens have the duty to pay taxes);

id. at art. 35(1) (declaring that citizens have the duty to work). 104

Belr. Const. art. 55; Bulg. Const. art. 55; Croat. Const. art. 69; Czech Rep. Charter art. 35; Est. Const.

art. 53; Geor. Const. art. 37; Lith. Const. art. 53; Maced. Const. art. 43; Mold. Const. art. 59; Pol.

Const. art. 86; Rom. Const. art. 41; Russ. Const. art. 58; Slovk. Const. art. 44; Slovn. Const. art. 72;

Ukr. Const. art. 66; Mont. Const. art. 19. 105

Belr. Const. art. 32; Bulg. Const. art. 47; Croat. Const. art. 63; Czech Rep. Charter art. 32; Est. Const.

art. 27; Hung. Const. art. 67; Maced. Const. art. 40; Mold. Const. art. 48; Rom. Const. art. 44; Russ.

Const. art. 38; Slovn. Const. art. 54; Ukr. Const. art. 51; Mont. Const. art. 59; Serb. Const. art. 29. 106

Belr. Const. art. 57, Bulg. Const. art. 59; Croat. Const. art. 47; Est. Const. art. 24; Hung. Const. art.

70/H; Lith. Const. art. 139; Maced. Const. art. 28; Mold. Const. art. 57; Pol. Const. art. 85; Rom.

Const. art. 52; Russ. Const. art. 59; Ukr. Const. art. 65; Serb. Const. art. 51. In addition, the Slovak

Constitution proclaims cryptically that the defense of the Slovak Republic is “the duty and matter of

honor of citizens.” art. 25(1). 107

Croat. Const. art. 47; Est. Const. art. 124; Pol. Const. art. 85; Russ. Const. art. 59. Articles 70/H and

139 of the Hungarian and Lithuanian constitutions, respectively, contain this as an implicit right,

suggesting that the duty of protection of the state can be fulfilled by non-military service.108

Belr. Const. art. 56; Bulg. Const. art. 60; Croat. Const. art. 51; Hung. Const. art. 70/I; Maced. Const.

art. 33; Mold. Const. art. 58; Pol. Const. art. 84; Rom. Const. art. 53; Russ. Const. art. 57; Ukr. Const.

art. 67; Mont. Const. art. 49; Serb. Const. art. 52. 109

Belr. Const. art. 32; Croat. Const. art. 63; Maced. Const. art. 40; Mold. Const. art. 48; Russ. Const. art.

38; Ukr. Const. art. 51; Mont. Const. art. 59; Serb. Const. art. 29. 110

Bulg. Const. art. 61; Mont. Const. art. 51; Serb. Const. art. 54. 111

Est. Const. art. 54(1). 112

Article 82 of the Polish constitution is typical: “Loyalty to the Republic of Poland, as well as concern

for the common good, are the duty of every Polish citizen.” For similar articulations of generalized,

state-based duties, see Geor. Const. art. 44; Mold. Const. art. 56; Rom. Const. art. 50(1). 113

“Bulgarian citizens have the right and obligation to study and use the Bulgarian language.” Bulg.

Const. art. 36(1). 114

Roman Graczyk, Konstytucja dla Polski (Kraków: Znak, 1997) at 158; see also Ma gorzata Ko uch,

“Konstytucyjny obowi zek wierno ci Rzeczypospolitej (Art. 82 Konstytucji RP) a cz onkostwo

Polski w Unii Europejskiej”, in Cezary Mik, ed., Konstytucja Rzeczypospolitej Polskiej z 1997 roku a

cz onkostwo Polski w Unii Europejskiej (Toru : TNOiK, 1999): 353-73 at 357-59. 115

Decision K. 39/97 of 10 November 1998, Orzecznictwo Trybuna u Konstytucyjnego, Rok 1998 (C.H.

Beck: Warszawa, 1999), poz. 26, at 491-557, discussed in Chapter 9 above. 116

Articles 82 and 85 of the Constitution, respectively. 117

Id. at 501. 118

Id. at 520-21. 119

Similarly Graczyk, supra note 114 at 158. 120

Soviet Constitution of 1977, art. 59. 121

Moldova, Poland and Romania. 122

Consider, as an example, article 63(1) of the Croatian Constitution: “Parents shall have the duty to

bring up, support, and educate their children, and have the right and freedom to independently decide

on the upbringing of their children.”

ENDNOTES 353

123

Consider, as an example, article 37(3) of the Georgian Constitution: “All have the right to live in a

healthy environment and use natural and cultural surroundings. All are obliged to protect the natural

and cultural surroundings”. 124

Bulg. Const. art. 61.

Conclusions

1 Patricia M. Wald, Foreword, in Herman Schwartz, The Struggle for Constitutional Justice in Post-

Communist Europe (University of Chicago Press: Chicago, 2000): ix-xvii at x. Wald, a former Chief

Judge of the US Court of Appeals for the District of Columbia, is member of the International

Criminal Tribunal for the Former Yugoslavia. 2 Herman Schwartz, “The New East European Constitutional Courts”, in A. E. Dick Howard (ed.),

Constitution Making in Eastern Europe (Washington, D.C.: Woodrow Wilson Center Press, 1993),

pp. 163-208 at p. 194. Another commentator, Spencer Zifcak, expressed his enthusiasm immediately

in the title of his article “Hungary’s Remarkable, Radical, Constitutional Court”, Journal of Constit.

Law in Eastern and Central Europe 3 (1996): 1-56, and concluded his discussion of the Hungarian

Court by saying that “[t]here have been few, more distinctive or valuable judicial contributions to

emergent democracy anywhere”, id. at 56. 3 Mark Tushnet, “Policy Distortion and Democratic Debilitation: Comparative Illumination of the

Countermajoritarian Difficulty”, Michigan Law Review 94 (1995): 245-301 at 275. 4 J.M. Balkin, “Agreements with Hell and Other Objects of our Faith”, Fordham Law Review 65 (1997):

1703-38 at 1728. 5 László Sólyom, “The Hungarian Constitutional Court and Social Change”, Yale J. Int’l L. 19 (1994):

223-38, 223. 6 Ruti Teitel, “Paradoxes in the Revolution of the Rule of Law”, Yale J. Int’l L. 19 (1994): 239-47 at 246,

footnote omitted.7 Kim Lane Scheppele, “Democracy by Judiciary”, paper presented to the workshop “Rethinking the Rule

of Law in Post-Communist Europe”, European University Institute, Florence 28-23 February 2002

(unpublished manuscript on file with the author). 8 This danger nowhere figures in the best book-length description of post-communist judicial review so

far, namely Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe

(The University of Chicago Press: Chicago, 2000). 9 See, similarly, Stephen Holmes & Cass R. Sunstein, “The Politics of Constitutional Revision in Eastern

Europe”, in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitu-

tional Amendment (Princeton University Press 1995): 275-306 at 303-4. 10

Keith E. Whittington, “The Political Foundations of Judicial Supremacy”, in Sotirios A. Barber &

Robert P. George, Constitutional Politics (Princeton University Press: Princeton 2001): 261-97 at 279. 11

Id. at 280, footnote omitted. 12

Klaus von Beyme, “Constitutional Engineering in Central and Eastern Europe”, in Stephen White, Judy

Batt & Paul G. Lewis, Developments in Central and East European Politics, vol. 3 (Palgrave

Macmillan: Basingstoke 2003): 190-210 at 208. 13

Marcin Król, “Autorytet parlamentu”, Tygodnik Powszechny (Cracow), 3 November 2002, p. 16. 14

Robert A. Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989) 189. 15

Interview with Mr Petr Pithart, President of the Senate of the Czech Republic, Prague 21 March 2002. 16

E.g. in Poland, in November 2002, 67 % of respondents had a negative opinion of the work of the

Parliament, and only 17 %, a positive opinion. 80 % thought that the Sejm did not have sufficient

prestige; two-thirds thought that it worked too slowly, and 50 % believed that it often took wrong

decisions; see the results of the CBOS survey as reported in “Polacy bardzo le o Sejmie”,

Rzeczpospolita 14 January 2003 at A2. 17

Teitel, supra note 6 at 246. 18

Stephen Holmes & Cass R. Sunstein, “The Politics of Constitutional Revision in Eastern Europe”, in

Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional

Amendment (Princeton University Press 1995): 275-306 at 300. 19

Alec Stone Sweet, “Constitutional Dialogues: Protecting Rights in France, Germany, Italy and Spain”,

in Sally J. Kenney, William M. Reisinger & John C. Reitz, Constitutional Dialogues in Comparative

Perspective (Macmillan: Houndmills, 1999): 8-41 at 26.

354 ENDNOTES

20

Whittington, supra note 10 at 269. 21

Id. at 271, footnote omitted. 22

Stephen Gardbaum, “The New Commonwealth Model of Constitutionalism”, American Journal of

Comparative Law 49 (2001): 707-60.23

Id. at 760. 24

Michael J. Perry, “Protecting Human Rights in a Democracy: What Role for the Courts?”, Wake Forest

Law Review 38 (2003): 635-94 at 674-75. 25

Aharon Barak, “The Supreme Court, 2001 Term – Foreword: A Judge on the Judging: The Role of a

Supreme Court in a Democracy”, Harvard Law Review 116 (2002): 16-162 at 63. 26

Ruti Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, Yale Law

Journal 106 (1997): 2009-2080 at 2034. 27

Decision no. 60/1994 of 24 December 1994, reprinted in László Sólyom & Georg Brunner,

Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (University of

Michigan Press: Ann Arbor, 2000): 306-15 at 312. 28

Decision K 121/93, cited by Leszek Garlicki, “Orzecznictwo w 1993 roku”, Przegl d s dowy

(1994:10): 31-53 at 37 29

I should emphasise that I am not attributing such an attitude to either to Aharon Barak, or to Ruti Teitel,

or to any other defender of “exceptionalism” in transitional constitutional theory. 30

John Gray, “From Post-Communism to Civil Society: The Reemergence of History and the Decline of

the Western Model”, Social Philosophy and Policy (1993): 26-50 at 46. 31

Id. at p. 27. 32

Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker”,

Journal of Public Law 6 (1957): 279-95 at 283, footnote omitted.33

See Scheppele, supra note 7. 34

The words in quotation marks are from Christopher L. Eisgruber, Constitutional Self-Government

(Harvard University Press: Cambridge Mass., 2001) at 1. They do not represent Eisgruber’s own

conception of the grounds of judicial review but the one which he opposes.

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INDEX

Abortion, 116, 123

in Hungary, 88, 132-134

in Poland, 52, 101-103, 134-135, 324

See also Right to life

Absolute entrenchment, 80-81, 317

Abstract review, See Constitutional

review

Ackerman, Bruce, 34, 67, 232, 310, 311,

314, 317, 322, 345

Actio popularis, 6-7

Action sua sponte, 8-11, 25-26, 322

Acuña, Carlos H., 348

Advisory opinions, 13, 76-79, 316

Affirmative action, 201, 203-204, 311-

312, 321

Agh, Attila, 316

Albania, xvi, 135, 211, 226, 248

death penalty, 131

lustration, 240

Aleinikoff, T. Alexander, 276, 321, 351

Alexy, Robert, 268, 309

Allan, James, 318, 322

Altimari, Frank X., 88

Amendments, constitutional, See

constitutional amendments

Amnesty, 261

Amnesty International, 130, 131

Arabadjiev, Aleksandr, 184

Arato, Andrew, 56, 312-313

Argentine, 261

Assembly, freedom of, 152, 156-157

Association, freedom of, 157-158

Australia, 50, 67, 108, 174, 210

Austria, 1, 13, 17

Avanesyan, Suren, 304, 328

Badinter, Robert, 49, 312

Baird, Vanessa A., 302, 309

Balamazov, Stefan, 2

Balancing, 103, 276

Balkin, Jack, 290, 353

Baltic states, 248

lustration, 240-241

Russian minorities, 61, 206, 213, 216-

218

See also Estonia, Latvia, Lithuania

Barak, Aharon, 296, 319, 354

Baric, Sanja, 307

Barry, Brian, 342

Bartole, Sergio, 317

Beatty, David M., 350

Belarus, 40

Constitutional Court, 4, 18

death penalty, 131

Belgium, 227, 260

Bell, John, 315

Bicameral systems, 92-93

Bickel, Alexander, 70, 79, 315, 316

Bills of rights, 107, 111

Bosnia and Herzegovina, 178

Constitutional Court, 4, 14

Brewer-Carias, Allan-Randolph, 41, 311

Brilmayer, Lea, 312

Brunner, Georg, 304, 308, 316, 320, 324,

330, 331, 335, 339, 345, 347

Bugaric, Bojan, 333

Bulgaria, 2, 58

Constitutional Court, 3, 8, 12, 15, 17,

58, 61, 77, 87-88, 94, 128-129,

159-160, 183-184, 220-222, 248-

249, 303

death penalty, 130

Disclosure of Secret Police Files Act,

248-249

freedom of expression, 159-160, 167

incitement to hatred, 160

lustration, 53, 248-249

Media Council, 167

Movement of Rights and Freedom

(MRF) case, 81, 220-222

official language, 285

Panev law, 248

Pension Act, 183-184, 193, 281

prohibition of discrimination, 204

right to life, 128-129

right to work, 281

self-defence in criminal law, 128-129,

146

social security, 281

Turkish minority, 81, 206, 220-222

Bundesverfassungsgericht, See Germany,

Federal Constitutional Court

Burdeau, Georges, 301, 317

Burger, Warren E., 110, 321

Beyme, Klaus von, xi, 292, 301, 353

368 INDEX

Calabresi, Guido, 79, 88, 316

Caldeira, Gregory A., 302, 309

Calhoun, Noel, 346

Canada, 50, 67, 83-84, 210

83-84, 295

Capital punishment, See Death penalty

Cepl, Vojtech, 226, 227, 239, 304, 306,

308, 316, 331, 344-345

Cerar, Miroslav, 302

Cheli, Enzo, 321

Ciemniewski, Jerzy, 175, 333

Ciobanu, Viorel, 10

Citizens' duties, See Constitutional duties

Citizenship rights in CEE, 151-153

Commercial speech, 168-169

"Commonwealth model" of

constitutionalism, 295

Concrete review, See Constituional

review

Conscientious objection, 143-144

Conseil Consitutionnel, See France

Constantinescu, Emil, 308

Constantinescu, Mihai, 10, 82, 305, 317

Constitution,

binding interpretations of, 11-13

prohibition on amendment, 80-82

Constitutional amendments, 13, 80-82

Constitutional complaint, 6-8, 68

Constitutional continuity, 258-262

Constitutional Courts,

as deliberative institutions, 31, 119-

121

and parliamentary minorities, 93-96

as part of the judiciary, 33-40, 121

as protectors of minority rights, 58-62

See also Constitutional review,

Constitutional rights,

Constitutional dialogue, 84-85

Constitutional duties, 284-287

Constitutional remand, 79

Constitutional review

abstract, xi, xiii, 5, 13, 20, 25, 42, 49-

50, 65-74, 78

concrete, 19, 25, 44-45, 49-50, 65-74,

78, 303

decentralised, 67

ex-ante, 13, 74-79

ex-post, 13, 25, 74-79

final, 13, 25, 29-30, 79-85

and lower courts, 19-25

and paternalism, 47-49

and statutory interpretation, 98

before World War II, 1-2

articulation of, 114, 118-119, 123-124,

294

disagreement on, 59, 118-124

and judicial review, 59, 109-118

negative and positive, 172

programmatic, 172, 182-183, 332

protection of, 107-125

restrictions of, 263-284

"Constitutionally conforming"

interpretation, 98-99

Corrective justice, 232

Council of Europe,

accession by CEE countries, 130

Parliamentary Assembly's resolution

on lustration, 232-233

Countermajoritarian difficulty, 72

Croatia

conscienctious objection, 145

law on health insurance, 189

minority representation, 219

pensions law, 191, 320, 337

right of assembly, 278

right to strike, 278

Cruz Villalon, Pedro, 308, 315

Czarnota, Adam, 348

Czech Republic,

Act on Civilian Service, 277

Act on Extra-Judicial Rehabilitation,

89

Act on the Lawlessness of the

Communist Regime and

Resistance to It, 229-231, 239,

250-251

Charter of Fundamental Rights and

Basic Freedoms, 166, 334

conscientious objection, 143-142, 277

constitutional complaint, 7

Constitutional Court, 13, 14, 22-23,

39, 77, 93, 98

Charter of Rights and Freedoms, xii,

Supreme Court, xii-xiv, 83

Chantebout, Bernard, xiii,

Constitutional rights, xvii, 28

INDEX 369

detention of criminal suspects law, 98

election law, 154

hate speech, 160-161

law on public sector pay, 93

lustration, 235-240, 239, 258-259

movement and residence, freedom of,

149

petition rights, 156

privacy rights, 146

Senate, 92-93, 293

salary supplement law, 93

socio-economic rights, status of, 179

statutes of limitation, 250-251, 253

statutory interpretation, 98

Supreme Court, 22, 98

"war of the courts", 21-23

Czechoslovakia

Constitutional Court, pre-War, 1-2

Constitutional Court of Czech and

Slovak Federal Republic, 3, 237-

239, 281

lustration, 226-229, 236-239

"Velvet Revolution", 226, 242

Czeszejko-Sochacki, Zdzislaw, 245, 304,

309, 310

Dahl, Robert, 27, 50, 60-61, 292, 298,

309, 312, 314, 353, 354

Dayton Accord, 4

Death penalty,

in CEE states, 97, 130-131, 323

in Hungary, 101

Decommunisation

definition of, 224-225

in CEE states, 223-249, 258-259

in Czech Republic, 235-240

in Germany, 233-234

Deets, Stephen, 342-343

Deliberation within constitutional courts,

31, 119-122

Defamation, 165-167

"Democratic debilitation", 290

Democratic legitimacy, See Legitimacy

of constitutional courts

Devins, Neil, 69, 84, 314, 318, 321-322

Di Gregorio, Angela, 308

Discrimination, See Equality

Distributive justice, 184, 192-193

See also Social justice

Doma ska, Aldona, 338

Donati, Filippo, 321

Dorf, Michael C., 317

Dumitru, Horatiu, 83, 305, 318, 328, 350

Dupré, Catherine, 323

Duties, See Constitutional duties

Dworkin, Ronald, 109-111, 117, 119-121

192, 204, 269, 270, 321-322, 337, 340

Dzia ocha, Kazimierz, 325

Ebzeev, Boris, 312

Education, right to, 153, 177, 189-190

Eisgruber, Christopher, 56, 310, 313,

323-324, 354

Election laws, 153-156

Elster, Jon, 227, 310, 317, 333, 335, 344-

346

Ely, John Hart, 56, 112-113, 310, 322

Epp, Charles R., 312

Epstein, Lee, 52-53, 313

Equality

in CEE constitutions, 195-197, 280

gender, 199

sexual orientation, 201-203

Estonia,

constitutional review in, 13, 67, 303

Constitutional Review Chamber, 5, 9-

10, 14, 16, 61, 67, 75, 76, 89, 97,

149-150, 157, 216-218, 271-272,

303

election law, 216-218

freedom of association, 157-158

Language Act, 61, 216-218

law on housing-cooperatives, 89

law on sale of alcohol, 271-272

movement and residence, 149-150

Non-Profit Associations Act, 157-158

privacy rights, 146

proportionality review, 271-272

Russian minority, 206, 222

Taxation Act, 146

Ex-ante review, See constitutional review,

ex ante

European Convention of Human Rights,

267, 276

Article 8, 202-203, 267

Article 10, 159, 166, 267

Protocol 6, 130

Dehaene, Jean-Luc, 332

370 INDEX

European Court of Human Rights, 267,

295

European Social Charter, 172, 185, 332

European Union, 218

130

173, 263, 276, 332, 351

European Commission, 43

Exceptionalism, 296-298

Fabre, Cécile, 322, 332

Fallon, Richard H., 310

Favoreu, Louis, 43, 311

Feinberg, Joel, 351

Ferejohn, John, 311

Fijalkowski, Agata, 323

Final review, See consitutional review

Fiss, Owen, 39, 310, 311, 322

Fletcher, George, 302

France, 46, 47, 227, 257

49, 61, 75-76, 90, 120, 315-316

"fundamental principles recognised by

the laws of the Republic", 75

gender equality, 61

immigration law, 82

judicial review, 90

republican form of government, 81

Fredman, Sandra, 341

Freedom of expression, 123-124, 158-169

Freedom of movement and residence,

149-151, 152

Freedom of religion, 135-146

Free speech, See freedom of expression

Fudge, Judy, 301

Gadzhiev, Gadis, 21

Ganev, Venelin, 222, 305, 319, 336, 338,

344

Gardbaum, Stephen, 295

Gardocki, Lech, 304, 309

Garlicki, Leszek, 15, 57, 175, 304, 305,

306, 307, 310, 315, 317, 325, 333,

335, 343, 354

Gender equality in CEE, 199-201

Geneva Convention of 1949, 253-254

Georgia, 178

Constitution, 134, 155, 184, 292

death penalty, 130, 323

German Democratic Republic, 233

Germany

Basic Law, 80-81, 264, 317

constitutional review, 5, 13, 46

decommunisation, 232-233, 258

denazification, 232

79, 268, 271

prohibition of consitutional

amendment, 80-81, 317

Gibson, James, 30, 302, 309

Gicquel, Jean, 312

Gillis, Mark, 306, 319, 320

Ginsburg, Tom, 308, 315

Goncz, Arpad, 253

Graczyk, Roman, 352-353

Granat, Miroslaw, 302

Gray, John, 354

Greece, 41, 311

Greenberg, Jack, 341

Griffin, Stephen, 60-61, 68, 91, 111, 311,

313, 314, 319, 321, 322

Grimm, Dieter, 350

Grudzinska-Gross, Irena, 317, 318, 331

Grzegorczyk, Christophe, 312

Guatemala

Commission on Historical

Clarification, 231

Habermas, Jürgen, 33, 59, 69, 310, 313,

314

on concrete review, 68

Halmai, Gábor, 19, 302, 307, 308, 318,

320, 323, 330, 347, 348

Hamon, Francis, 301

Hate speech, 160-164

Hausner, Roman, 309

Havel, Vaclav, 14, 22, 44, 89, 165, 237

Health care, right to, 153

Henckaerts, Jean-Marie, 332

Hepple, Bob, 186

Hofmanski, Piotr, 348

Holländer, Pavel, 23, 98, 301, 309

Holmes, Stephen, 293

Human dignity, 100-101, 128

accession by CEE states, xviii, 42-43,

Charter of Fundamental Rights, xviii,

Federalism, xi

Conseil constitutionnel, xiii, 13, 38, 48,

Federal Constitutional Court, xiv, 30,

"Government of judges", xiii, 45, 46

Gunther, Gerald, 350

House of Lords, xv

INDEX 371

Hungary

abortion 88, 132-134

Act on the Rights of Ethnic and

National Minorities, 211

affirmative action, 201, 204

association, right of, 275

Bokros package, 148, 175, 291

11-12, 13, 39, 42, 51, 56, 65, 67,

75-76, 175, 181, 201, 258-259, 297

death penalty, 101-102, 131-132

decree on radio and TV, 167

defamation of politicians, 166-167

desacration of national symbols, 163

freedom of expression, 161-163

election law, 155

freedom of media, 167

gender equality, 201

hate speech, 161-163

health care, right to, 176-171

human dignity, 100-101, 129-132

lustration law, 88, 242-243, 297

minority representation, 219

minority rights, 207-208, 211

pensions law, 181

presidential powers, 92

press law, 168

preventive review, 76-77

privacy rights, 147-148

proportionality review, 272-273, 275

public prosecutor's role, 129

right to reply, 168

right to work, 186

sexual orientation, 202, 275

socio-economic rights, status of, 181

statutes of limitation, 251-157, 260-

261

tax evasion, 148

trade unions law, 100

Zetenyi decision, 252-253, 255, 262,

290-291

Zetenyi-Takacs Act, 252, 257

Iliescu, Ion, 308

Imholz, Kethleen, 346

Incitement to hatred, See hate speech

India, 50, 67

Individual rights, See constitutional rights

Initiation of constitutional review, 5-10

Institutional design, 32-33, 59, 110, 120

International Convention on the

Elimination of all Forms of Racial

Discrimination, 160

International Convention on Civil and

Political Rights, 238

Interprétation conforme, See

"Constitutionally conforming"

interpretation

India, 50, 67

"Invisible welfare", 193

Iorgovan, Antonie, 10

Ireland, 180

Italy, 82, 92

constitutional review, 5, 43, 46

Corte costituzionale, 16, 315

right to work, 185

Japan, 46, 67, 233

Jasudowicz, Tadeusz, 282, 352

Jevgrafov, Pavlo, 304

Jowitt, Ken, 199, 338

Juan Karlos, 223

Judges,

appointment of, 14-18, 26, 122, 306,

307

tenure of, 14, 26, 32, 122, 306

Judicial activism, 68, 70, 75, 87, 96-104,

195

"Judicial overhang", 117, 322

Judicial restraint, 23, 46, 97-100, 245

Judicial review, See Constitutional review

Jurisdictional disputes, 13

Justiciability, 70-73

Katrougalos, George S., 333

Kelsenian model, 1, 2, 27, 41, 43, 44, 45,

63, 99, 311

Kessler, Zdenek, 319

Kirov, Stefan, 2

Klaus, Vaclav, 22

Knight, Jack, 52, 313

Kolarova, Rumyana, 88, 248, 318, 347

Komesar, Neil K., 310, 313, 322

Konstantinov, Emil, 344

Kopecky, Petr, 319

Kostov, Milcho, 184

Kovács, János Mátyas, 193, 337

Constitutional Court, xv, 6, 7, 8-9,

Impeachment, xvii, 13, 306

Kelsen, Hans, xvi, 88

372 INDEX

Ko uch, Ma gorzata, 352

Król, Marcin, 292, 353

Krygier, Martin, 301

Kymlicka, Will, 213, 341-344

Labady, Tamas, 132

Landes, William L., 316

Language rights, See Lingustic rights

Latin America, 269

Latvia, 4, 64, 201, 213, 222, 223, 303

constitutional equality, 195

minority rights, 207

Legal certainty, 47-48

Legislative apathy, 117, 291-292, 294

Legislative override, 13-14, 29-30, 79-80,

82-40, 295

Legitimacy of constitutional courts, xi-

xii, xiv, 26-63, 108, 111, 290, 298

"Lenient legislation", 73

Letki, Natalia, 345

Linguistic rights, 212-218

Limitations of rights, See Restrictions of

rights

Lithuania,

Centre for Research into the Genocide

of the People and Resistance, 241

choice of occupation, 188-189

citizenship, 152

Constitutional Court, 13, 39, 54, 168-

169

criticism of officials, 279-280

death penalty 131

election law, 218

freedom of association, 158

health insurance law, 191

Laws on the Bar, 188-189

Law on the Courts, 54

Law on Officials, 279-280

lustration, 240-241, 279

prohibition of discrimination, 204

religious freedom, 137-138

restrictions of rights, 278-279

Soviet security forces, employment of,

188, 240-241

Statute on Radio and TV, 159, 168

Lucinschi, Petru, 54

Ludwikowska, Anna M., 306, 308, 311,

316, 317, 319, 324, 344

Ludwikowski, Rett R., 334, 352

Lukashenka, Aleksandr, 4

Lustration, 97,

definition of, 224-225

in Bulgaria, 53, 248-249

in CEE, 224-249, 258-259

in Czech Republic, 227, 258-259

in Hungary, 88, 242-243, 259

in Poland, 57, 243-247

symbolic function of, 228

Macedonia,

election law, 155

inviolability of home, 146-147

Law on Civil Procedure, 214

minority rights, 207-208

official language, 214

religious freedom, 142-143

Macey, Jonathan R., 313, 318

Magalhães, Pedro, 319

Malova, Darina, 302

Marbury v. Madison, 68-70

Marshall, John, 68-70

Martinienko, Petro F., 305, 307

Massias, Jean-Pierre, 313, 328, 344

Masternak-Kubiak, Malgorzata, 304

Mavi, Victor, 334

Me iar, Vladimir, 236

Medushevsky, Andrey N., 319

Menéndez, Agustín José, 332

Michnik, Adam, 225-227, 344

Mihai, Lucian, 10, 90, 304, 305, 317

Mik, Cezary, 352, 353

Mikva, Abner J., 316, 323

Military service, duty of, 285

Mink, Andras, 316, 320

Minorities, ethnic, in CEE, 205-207

representation in public authorities,

218-222

Minority protection, See Minority rights

Minority rights, 207-222

group rights or individual rights? 209-

211

judicial review of, 49-50, 58-62, 112

See also: Linguistic rights

Moldova, 54, 134, 178, 226

death penalty, 130

referedum law, 54

Lambert, Edouard, xiii, 301

INDEX 373

Moore, Michael S., 28-29, 73-74, 120,

309, 315, 322

Montenegro

minority rights, 208

Moral realism, 28-31

Morawski, Lech, 312

Morshchakova, Tamara, 316

Mowbray, Alastair, 350

Mungiu-Pippidi, Alina, 319

Natural rights, 128, 238

Nenovsky, Neno,17, 58, 302, 305, 306,

307, 313, 316, 317, 319, 320, 341

Netherlands, 107, 108

Neuborne, Burt, 38, 54, 310, 313

New York Convention of 1968, 253

New York Times v. Sullivan, 166

New Zealand, 174, 210, 295

Nickel, James W., 352

Nino, Carlos Santiago, 260-261, 348

Novak, Jiri, 89

Objectivism, moral, 28, 30-31

Offe, Claus, 335

Official language, 213-218

Omissions, legislative, 7, 9, 11

Oniszczuk, Jerzy, 313, 323, 336, 337,

343, 350

Osiatynski, Wiktor, 311, 313, 333, 340,

347, 352

Ossipov, Alexander, 342

Overlapping consensus, 38

Paczolay, Péter, 335, 340, 343

Panev Georgi, 248

Pap, András László, 341, 343

Paternalism, 47-49, 275-276

Parliamentary override, See Legislative

override

Parvulescu, Cristian, 305, 307-308, 317

Pasquino, Pasquale, 73, 311, 315

Pensions, 182-184, 191

Perry, Michael J., 295, 318, 354

Petition, rights of, 156

Petrov, Nikolai, 340

Pettai, Vello, 61, 216, 218, 314, 340

Pettit, Philip, 32, 310

Pithart, Petr, 306, 319, 354

Pizzorusso, Alessandro, 302

Poland

abortion, 52, 101-103, 134-135, 324

association, freedom of, 157

Broadcast Law, 62, 113, 164-165, 322

Catholic Church, 62, 139, 164, 170

Charter of Rights and Freedoms of

1992, 180

citizenship rights, 151-152

collective agreements in the

workplace, 98, 99

constitutional equality, 195

constitutional complaint, 6-7, 25

constitutional interpretation, 102-103

12, 13, 14, 16, 23-25, 29-30, 39,

42, 43, 52, 56-57, 76, 79-80, 82,

92, 96, 98, 99, 101-102, 138-141,

170, 175, 182-183, 278, 312

death penalty, 130

education, rights to, 189-190, 192

equality before the law, 197-198

gender equality, 200-201

human dignity, 128-130

Institute of National Memory, 231

interpretation of statutes, 12

judges lustration law, 57, 244-245

land development law, 270-271, 277-

278

legislative override, 13, 29-30, 79-80,

82, 317

lustration, 243-247, 286, 313

medical certificates law, 130

National Council of the Judiciary, 57,

244-245

official language, 215-216

Ombudsman, 130, 134, 139

ownership rights, 270, 277-278

passports law, 129

pensions law, 191

proportionality review, 270-271

presidential powers, 91-92

protection of religious sensibilities,

164-165

Rechtstaat, principle of, 3, 102-103,

135, 244, 246, 262

religion in schools, 139-141

religious freedom, 138-142

right to work, 186-187

"Negative legislator", xvi, 37, 88, 99

Constitutional Tribunal, xiv, 1, 3, 9,

374 INDEX

Senate, 92, 247, 313

socio-economic rights, 179-180, 182-

183

state and religion, 138-142

Supreme Administrative Court, 270

Supreme Court, 23-25, 43, 78, 200-

201

vested rights, 262

"war of the courts", 24

Political question, 70-72

Portugal, 21, 95-96, 311

Positive discrimination, See Affirmative

action

Posner, Eric, 255, 344

Posner, Richard, 173, 316

Post, Robert, 312

Presumption of constitutionality, 98, 99

Preuss, Ulrich, 174, 333, 335

P ibá , Ji í, 230, 303, 308, 319, 345

Privacy, right to, 146-149

Procházka, Radoslav, 302

Proportionality review, 266-276

and necessity, 266-273

and relevance, 267-268

Prosser, William, 153, 327

Protection of religious sensibilities, 163-

165

Pushaw, Robert J., 316

Putin, Vladimir, 78, 95

Racial vilification, See Hate speech

Rapaczynski, Andrzej, 333

Ratner, L.G., 318

Rawls, John, 37, 119, 201, 322

Reason giving, by courts, 120-122

in Poland, principle of, 102-103, 135,

244, 246, 262

in Slovenia, principle of, 185

Redish, Martin, 318

Rehnquist, William, 110, 321

Reitz, John C., 46-47, 312

Religion, See Freedom of religion

Restrictions of rights, 263-284

constitutional design of, 263-266, 283-

284

and the essence of rights, 277-278

non-discrimination requirement of,

280-281

proportionality review of, 266-276

Retroactive justice, 223-224, 249-258

Right to life, 128-135

in Bulgaria, 128

in Poland, 128

See also, Abortion, Death penalty

Right to work, 185-189

in CEE constitutions, 186

Rights, See Constitutional rights

Rodin, Sinisa, 307

Romania

Bucharest Tram Company case, 2

Constitutional Court, 3, 8, 10, 13, 18,

79-80, 82-83, 90

election law, 154, 156

equality before the law, 198-199

foreign travel tax, 150-151, 273-274

freedom of the press, 159

Hungarian minority 61-62, 213

incitement to hatred, 160

legislative override, 79-83

local administration law, 90

minority representation, 219

movement and residence, 150-151

pensions for war veterans law, 198-

199

petition rights, 156

political parties, 154

presidential powers, 92

proportionality review, 273-274

sexual orientation, 202-203

Rosenfeld, Michel, 210, 256, 342, 344,

348

Rozmaryn, Stefan, 2, 302

Rubio Llorente, Francisco, 317

constitutional amendment, 81

constitutional complaint, 7-8

Constitutional Court, 3, 8, 9, 15, 18,

20-21, 39, 51, 52-53, 95

movement and residence, freedom of,

151

propiska, 151

restrictions of rights, 264-265

rights of criminal defendants, 265

State Secrets Act, 263

Raskin, Jamin B., xii

Rechtsstaat, xi, 298

Russia, xi

INDEX 375

Supreme Court, 20-21

Rymarz, Ferdynand, 245, 313

Sadurski, Wojciech, 302, 310, 325, 338

Safjan, Marek, 7, 30, 247, 304, 309, 317,

347

Sajó, Andras, 175, 192-193, 303, 330,

333, 337, 340, 341

Salzberger, Eli M., 306

Scalia, Antonin, 314

Scharpf, Fritz, 72, 315

Scheppele, Kim Lane, 132, 201, 291, 318,

324, 339, 347-348, 353

Schulhofer, Stephen, 253, 348

Schuster, Rudolf, 166

Schwartz, Herman, 172, 175, 301, 302,

305, 317, 332, 333, 347, 353

Separation of state and religion, See

Freedom of religion

301, 310, 313, 314, 318

Shemshuchenko, Yurii S., 307

Shue, Henry, 332

Shvetsova, Olga, 52, 313

Siklova, Jirina, 226-227, 344

Skach, Cindy, 344

Sladecek, Vladimir, 309

Slovakia,

conscientious objection, 144-145, 281

constitutional complaint, 7

Constitutional Court, 13, 38-39, 76,

166, 236

defamation of politicians, 166

Hungarian minority, 205, 213-214

Law on Weapons, 251

lustration, 236

minority representation, 219-220

official language, 213-214

petition rights, 156

prohibition of discrimination, 204

privacy rights, 148

restrictions of rights, 281

socio-economic rights, status of, 179

Slovenia, 185

choice of occupation, 187-188

Constitutional Court, 9, 103-104, 185,

199

election law, 155

equality before the law, 199

local government law, 88-89

minority representation, 220

minority rights, 208-209

notaries Act, 188

presidential powers, 92

privacy, 147

proportionality review, 199, 266-267

Rechtsstaat, 185

reprivatisation law, 103-104, 199

war veteran benefits, 185

Smulovitz, Catalina, 348

Social security, 176-177, 179, 181-185

Social justice, 197

See also Distributive justice

Socio-economic rights, 171-194

and citizenship, 152-153

constitutional catalogues of, 176-178

inclusion in constitutions, 171-176

Sokolewicz, Wojciech, 302, 315

Sólyom, László, 6, 34, 51, 56, 100-101,

131-132, 161-162, 166, 167, 181, 290,

304, 310, 312, 314, 316, 319, 320,

324, 327, 330, 331, 335, 336, 339,

345, 351, 353-354

Sonobe, Itsuo, 312

South Africa, 261

Commssion for Truth and

Reconciliation, 231

Spain, 223, 261

Constitution, 180

constitutional review, 5, 21, 41, 46

Sprague, Leigh, 308, 319

Standing, rules of, 50

in US consitutional review, 70-71, 312

stare decisis, 44-45

"State based on law", See Rechtsstaat

Statism, 46-47

Statutes of limitation, retroactive

extensions of, 249-258, 260-261

Staugaitiene, Teodora, 331

Stone Sweet, Alec, 45, 61, 75, 82, 87, 91-

92, 94, 311, 312, 314-319, 354

Strashun, Boris, A., 304, 308, 311, 319

Strict scrutiny, 57, 104

Sullivan, Kathleen, 282, 352

Schlink, Bernhard, xiv, 302

Separation of powers, xvii, 44-45, 55, 78

Shapiro, Martin, xiv, 35-6, 51, 69, 90,

Sunstein, Cass, 176, 293, 313, 322, 333,

353-354

376 INDEX

Sweden, 67, 76, 109

Law Council, 74

Switzerland, 311

Szabo, Andras, 161-162

Szczerbiak, Aleks, 346

Taney, Roger B., 110, 321

Teitel, Ruti, 39, 40, 44, 226, 256-257,

290-291, 293, 296, 310, 344, 346,

348, 353-354

Thayer, James Bradley 100, 320

"Third chamber" model, 14, 37, 39, 75

Todorov, Todor, 94, 167, 184, 302, 304,

305, 306, 307, 316, 320, 331, 336

Toleration regimes, 222

Transitional justice, 223-224, 258-262

Triadic model of courts, 35-36

Tribe, Laurence H., 314, 332, 352

Troper, Michel, 301, 312, 317

Trzci ski, Janusz, 39, 302, 304, 309, 310,

353, 343

Tsilevich, Boris, 342

Tucker, Aviezer, 344-348, 348

Turkey, 212

322, 336, 353

Tychyj, Wolodimir, 303, 307

Uitz, Renata, 324, 330

Ukraine, 47

Constitutional Court, 4, 8, 15, 17, 50,

65, 94, 135, 184, 226, 303

election law, 155

Unconstitutional conditions, 281-282

United Kingdom, 109, 111, 295

Human Rights Act, 295

United States

47-48, 50, 100, 109-111, 276, 283

First Amendment to the Constitution,

109, 161, 163

hate speech, 163

judicial review, See constitutional

review

minority rights, 209-210

56, 60, 66-73, 75, 84, 91, 109-111,

120, 276, 291-292, 312

unconstitutional conditions, 281

welfare rights, 173-174

USSR, 184, 212, 222, 249, 266, 271

Van Alstyne, William, 313, 314

Van der Jeught, Stefaan, 332

Van Dijk, P., 350

Van Noof, G. J. H., 350

Varady, Tibor, 211, 342

Vashkevich, Alexander, 303

Vermeule, Adrian, 255-256, 344, 348

Veto points, 91, 94-95

Voigt, Stefan, 306

Vote, right to, 152-155

Wald, Patricia M., 353

Waldron, Jeremy, 31, 60, 109-113, 123,

310, 313, 314, 322-323

Walicki, Andrzej, 347

Wa sa, Lech, 44, 180, 244

Warren, Earl, 110, 292, 321

"Wars of the courts", 21-24, 26

Washington, George, 316

Wasilewski, Andrzej, 311

Webber, Jeremy, 83, 318

Weber, Renate, 12, 302, 305, 319

Welfare rights, See Socio-economic

rights

Wellington, Harry H., 79, 316

Welsh, Helga A., 346

Whittington, Keith, 291, 294, 318, 353-

354

Winczorek, Piotr, 332

Wolczuk, Kataryna, 303, 305, 314

Wole ski, Jan, 102, 321, 324

Yaroslavtsev, Vladimir, 18, 78, 305, 308,

316, 317, 320

Yeltsin, Boris, 18, 52, 305, 308

Yugoslavia

Yuzhkov, Leonid, 4

Zdyb, Marian, 245, 313, 247

Zhelev, Zhelyu, 94

Zhelyazkova, Antonina, 340, 344

Zieli ska, Eleonora, 338

Zieli ski, Tadeusz, 171, 183, 332, 336

Zielonka, Jan, 319, 337, 338

Zifcak, Spencer, 313, 348, 353

Zirk-Sadowski, Marek, 312

Zlinszky, Janos, 132

Tushnet, Mark, xii, 116-117, 290, 318,

constitutional review, xii-xiii, 41-42, 45,

Supreme Court, xii, 37-38, 44, 50, 55-

Constitutional Court, xiv, 1, 3

Zoll, Andrzej, 12, 92, 317, 318

Zorkin, Valery D., 3