DOCSLIB.ORG

The Role of the Constitutional Court in the Consolidation of the Rule of Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Role of the Constitutional Court in the Consolidation of the Rule of Law Bucharest; 8-10 June 1994 CDL-STD(1994)010 Or. Engl. Science and technique of democracy No.10 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) The role of the constitutional court in the consolidation of the rule of law Bucharest, 8-10 June 1994 Proceedings The role of the constitutional court in the consolidation of the rule of law Proceedings of the UniDem Seminar organised in Bucharest on 8-10 June 1994 in co-operation with the Romanian Constitutional Court with the support of the Ministry of Foreign Affairs of Romania. The Seminar gratefully acknowledges the assistance by the Japan Foundation and the Office for Democratic Institutions and Human Rights of the CSCE. TABLE OF CONTENTS Opening session ............................................................................................. 2 A. Introductory statement by Ion ILIESCU, President of Romania ........................................ 3 B. Introductory statement by Professor Antonio LA PERGOLA, President of the European Commission for Democracy through Law............................................................................... 4 C. Introductory statement by Mr Vasile GIONEA, President of the Romanian Constitutional Court ..................................................................................................................................... 11 The role and competences of the constitutional court ....................................... 15 A. The role and competences of the constitutional court - Report by Professor Luis LOPEZ GUERRA, Spain................................................................................................................... 16 B. The role and competences of the constitutional court - Report by Prof. Florin VASILESCU, Judge at the Romanian Constitutional Court .................................................. 27 Summary of the Discussion................................................................................................... 39 Organisation, operation and practice of the constitutional court ........................ 42 A The constitutional court of Italy - the guarantee for its independency - Report by Prof. Antonio BALDASSARRE, Judge at the Italian Constitutional Court.................................... 43 B. Organisation, operation and practice of the constitutional court - Report by Prof. Victor Dan ZLĂTESCU, Judge at the Romanian Constitutional Court ........................................... 49 Summary of the Discussion................................................................................................... 62 Decisions of the constitutional court and their effects ...................................... 64 A. Decisions of the constitutional court and their effects - Report by Prof. Helmut STEINBERGER, former judge at the German Constitutional Court ..................................... 65 B. Decisions of the constitutional court and their effects - Report by Prof. Vasile GIONEA, Member of the Academy, President of the Romanian Constitutional Court........................... 91 Summary of the Discussion................................................................................................... 98 The relations of the constitutional court with the ordinary courts and other public authorities ...................................................................................................100 A. The relations of the constitutional court with the ordinary courts and other public authorities - Report by Prof. Michel MELCHIOR, President of the Belgian Court of Arbitration .......................................................................................................................... 101 B. The relations of the constitutional court with the ordinary courts and other public authorities - Report by Prof. Antonie IORGOVAN and Prof. Miha CONSTANTINESCU, Judges at the Romanian Constitutional Court ...................................................................... 119 Summary of the Discussion................................................................................................. 124 Closing session............................................................................................125 Closing speech by Mr Robert BADINTER, President of the French Constitutional Council ............................................................................................................................................ 126 List of participants .......................................................................................127 Opening session Chaired by Professor Antonio LA PERGOLA Opening statements by a. Mr Ion ILIESCU, President of Romania b. Professor Antonio LA PERGOLA, President of the European Commission for Democracy through Law c. Mr Vasile GIONEA, President of the Romanian Constitutional Court A. Introductory statement by Ion ILIESCU, President of Romania Mr Ion ILIESCU, President of Romania, welcomed the participants in the Seminar and thanked those who had contributed to its organisation. Since 1989 profound changes had taken place in Romania and the most important one of them was the adoption of the new Constitution. He was grateful to the foreign specialists who had assisted in the drawing up of the Constitution, not least to the members of the Venice Commission who had participated in an exchange of views with the Constitutional Commission on the main principles to be incorporated in the Constitution. There had been a wide ranging public debate and Parliament had examined each article of the Constitution in detail. One of the topics discussed already then was the role of the Constitutional Court. The Constitutional Court of Romania was still a recent institution with only two years of experience but this experience was already interesting and should provide a useful starting point for the debates. B. Introductory statement by Professor Antonio LA PERGOLA, President of the European Commission for Democracy through Law 1. It is a privilege to address this distinguished audience. Our gathering is being honoured by the presence of the Head of State and of the Chief Justice of the Constitutional Court of our host country. Let me convey to both of them the heartfelt gratitude of the Venice Commission. Let me thank warmly all our Romanian friends for their generous hospitality. Romania is now a member of the Council of Europe. The stage is set in this magnificent building for a debate that has aroused the interest of judges, scholars and lawyers from all over Europe. Democracy is spreading across our continent. Courts as guardians of the constitution have appeared or are springing to life in almost every country arisen from the ashes of oppressive dictatorship. The progress of constitutional justice, in one form or another, runs like a connecting thread through our common history. Hans Kelsen conceived the Austrian Constitutional Court in 1920. That was an intense but troubled and transient season of institutional engineering. Other sister courts were established soon after World War II. The remaining ones have been created at various stages subsequently. First with lasting peace and now with the growing number of democracies, constitutional justice has attained its present importance and diffusion. This is more than an tendency. It is an established novel form of constitutionalism. Once the constitution is laid down as supreme law, its observance needs to be guaranteed. And it is. Kelsen's opinion that there should be an appropriate judicial body to perform the function has been tested by experience and has proven sound. This is by itself a striking fact, a sign of our times, and one that calls for our reflection. Bucharest is the place where our minds can meet. We share the awareness that, after the breakdown of ideological walls, a fruitful dialogue must begin between old and new courts. We need an all- round view of constitutional justice, mature and emergent. Each court has of course its own problems. All of them, though, administer the values which make us rediscover Europe as the unbroken area of one and the same civilisation. My opening remarks are not meant to deal with any of the topics reserved for the distinguished rapporteurs. From all of them I have no doubt much to learn. I shall simply attempt to set out the reasons why constitutional justice lies at the very heart of the endeavours in which the Venice Commission is engaged: the series of UniDem seminars and Conferences of which this is a part, the Bulletin on Constitutional Case-Law and the report of Models of Constitutional Jurisdiction by our friend Professor Steinberger. This report is available here in English, French and Russian. I am convinced that the reports at this seminar as well as the discussions will constitute a further important contribution not only to the scientific analysis of constitutional jurisdiction but also to its development in the practice of the new democracies. 2. Constitutional justice, let me explain, is a central concern of the Venice Commission because it regards democracy and law at the same time. It affects, and I am tempted to say it inspires, the actual working of the constitution as a frame of government and a bill of rights. There is an interaction here between constitutional justice and the institutional context in which it is put in place. Constitutional justice is established to guarantee democracy as a political system with its underlying worlds of values. It is also true, however, that to perform its proper role it requires, no less
Load more

Recommended publications
  • The Fundamentals of Constitutional Courts
    Constitution Brief April 2017 Summary The Fundamentals of This Constitution Brief provides a basic guide to constitutional courts and the issues that they raise in constitution-building processes, and is Constitutional Courts intended for use by constitution-makers and other democratic actors and stakeholders in Myanmar. Andrew Harding About MyConstitution 1. What are constitutional courts? The MyConstitution project works towards a home-grown and well-informed constitutional A written constitution is generally intended to have specific and legally binding culture as an integral part of democratic transition effects on citizens’ rights and on political processes such as elections and legislative and sustainable peace in Myanmar. Based on procedure. This is not always true: in the People’s Republic of China, for example, demand, expert advisory services are provided it is clear that constitutional rights may not be enforced in courts of law and the to those involved in constitution-building efforts. constitution has only aspirational, not juridical, effects. This series of Constitution Briefs is produced as If a constitution is intended to be binding there must be some means of part of this effort. enforcing it by deciding when an act or decision is contrary to the constitution The MyConstitution project also provides and providing some remedy where this occurs. We call this process ‘constitutional opportunities for learning and dialogue on review’. Constitutions across the world have devised broadly two types of relevant constitutional issues based on the constitutional review, carried out either by a specialized constitutional court or history of Myanmar and comparative experience. by courts of general legal jurisdiction.
    [Show full text]
  • Report for Austria– Questionnaire Related the Administration Control
    ADMINISTRATIVE JUSTICE IN EUROPE – Report for Austria– Questionnaire related the administration control list and typology in the 25 Member States of the European Union Preliminary. 1. Administration jurisdictional control was one typical concern of the liberal streams in the 19th century. In Austria, “the Reichsgericht”, a precursor of the Constitutional Court, was created by the December 1867 constitution which also planned creation of a Supreme Administrative Court (hereafter “the Verwaltungsgerichtshof”). However, this project was only fulfilled in 1876. Following this, the Verwaltungsgerichtshof played a decisive role in developing the legal protection system in Austria, establishing fundamental principles for administrative procedural law. Between 1934 and 1938, the Constitutional Court and the Verwaltungsgerichtshof merged to become “the Bundesgerichtshof”. Several judges were retired for political reasons. The introductions of Chambers with extended composition and of actions for administrative failure to act were significant reforms. After 1938, “the Bundesgerichtshof” lost its authority as Constitutional Court as well as several of its administrative jurisdiction authorities. Several judges were retired for political reasons. In 1940 “the Bundesgerichtshof” became “the Verwaltungsgerichtshof in Vienna” which was an administrative authority of the Reich. In 1941, the Verwaltungsgerichtshof became the “Vienna Außensenat” of the “Reichsverwaltungsgericht” by forming an organisational association with other German administrative courts. A few weeks after the Austrian declaration of independence in 1945, Chancellor Renner commissioned Mr. Coreth to revive the Verwaltungsgerichtshof which took up its duties again on 7th December 1945. The legal text on the Verwaltungsgerichtshof was amended and reissued several times but, in substance, it is still in force today. In 1945, the Constitutional Court was re-established with the same capacities as 1933 and it began carrying out its duties again in 1946.
    [Show full text]
  • Constitutional Court Judgment No. 5/1981, of February 13 (Unofficial Translation)
    Constitutional Court Judgment No. 5/1981, of February 13 (Unofficial translation) The Plenum of the Constitutional Court, comprising the Senior Judges Manuel García-Pelayo y Alonso, Chairman, Jerónimo Arozamena Sierra, Angel Latorre Segura, Manuel Díez de Velasco Vallejo, Francisco Rubio Llorente, Gloria Begué Cantón, Luis Díez-Picazo y Ponce de León, Francisco Tomás y Valiente, Rafael Gómez-Ferrer Morant, Angel Escudero del Corral, Antonio Truyol Serra and Placido Fernández Viagas, has ruled IN THE NAME OF THE KING the following J U D G M E N T In the unconstitutionality appeal against various precepts of the Organic Law 5/1980 of 19 June regulating the Schools Statute proposed by sixty four Senators and represented by the Commissioner T.Q.S.F.C., in which the State Attorney entered an appearance representing the government and with Francisco Tomás y Valiente acting as Rapporteur with the proviso indicated in paragraph 1.15. Conclusions of Law 1. The State Attorney claims the inadmissibility of the appeal on the grounds that the Commissioner appointed by the Senators in this appeal assumes, in virtue of art. 82.1 of the OLCC, their representation, however he cannot also take on its legal direction on which the aforementioned precept is “silent”. In the light of this silence, the State Attorney considers that the norm contained in art. 81.1 of the same Law is applicable, according to which “ad litem representative” and legal director are two distinct persons”. Furthermore, the Government representative bases his argument on the text of art. 864 of the Organic Law of the Judiciary which, according to the State Attorney “prohibits … the simultaneous performance of the duties of legal counsel and the activities of court agent”.
    [Show full text]
  • DIRECTORATE GENERAL for RESEARCH Directorate a Division for International and Constitutional Affairs ------WIP 2002/02/0054-0055 AL/Bo Luxembourg, 13 February 2002*
    DIRECTORATE GENERAL FOR RESEARCH Directorate A Division for International and Constitutional affairs ------------------------------------------------------------------- WIP 2002/02/0054-0055 AL/bo Luxembourg, 13 February 2002* NOTE ON THE POLITICAL AND ECONOMIC SITUATION IN ROMANIA AND ITS RELATIONS WITH THE EUROPEAN UNION IN THE FRAMEWORK OF ENLARGEMENT This note has been prepared for the information of Members of the European Parliament. The opinions expressed in this document are the author's and do not necessarily reflect the position of the European Parliament. * Updated 11 March 2002 Sources: - European Commission - European Parliament - European Council - Economic Intelligence Unit - Oxford Analytica - ISI Emerging Markets - Reuters Business Briefing -World Markets Country Analysis - BBC Monitoring Service WIP/2002/02/0054-55/rev. FdR 464703 PE 313.139 NOTE ON THE POLITICAL AND ECONOMIC SITUATION IN ROMANIA AND ITS RELATIONS WITH THE EUROPEAN UNION IN THE FRAMEWORK OF ENLARGEMENT CONTENTS SUMMARY................................................................................................................................ 3 I. POLITICAL SITUATION a) Historical background......................................................................................................3 b) Institutions...................................................................... .................................................5 c) Recent developments...................................................... .................................................6
    [Show full text]
  • Carbon Implications of Forest Restitution in Post-Socialist Romania
    Home Search Collections Journals About Contact us My IOPscience Carbon implications of forest restitution in post-socialist Romania This article has been downloaded from IOPscience. Please scroll down to see the full text article. 2011 Environ. Res. Lett. 6 045202 (http://iopscience.iop.org/1748-9326/6/4/045202) View the table of contents for this issue, or go to the journal homepage for more Download details: IP Address: 128.197.75.170 The article was downloaded on 12/10/2011 at 13:53 Please note that terms and conditions apply. IOP PUBLISHING ENVIRONMENTAL RESEARCH LETTERS Environ. Res. Lett. 6 (2011) 045202 (10pp) doi:10.1088/1748-9326/6/4/045202 Carbon implications of forest restitution in post-socialist Romania P Olofsson1, T Kuemmerle2, P Griffiths3,JKnorn3, A Baccini4, VGancz5, V Blujdea6, R A Houghton4, I V Abrudan7 and C E Woodcock1 1 Department of Geography and Environment, Boston University, 675 Commonwealth Avenue, Boston, MA 02215, USA 2 Earth System Analysis, Potsdam Institute for Climate Impact Research (PIK), Telegraphenberg A62, D-14412 Potsdam, Germany 3 Department of Geography, Humboldt-University Berlin, Unter den Linden 6, 10099 Berlin, Germany 4 Woods Hole Research Center, 149 Woods Hole Road, Falmouth, MA 02540, USA 5 Forest Research and Management Institute (ICAS), Sos. Stefanesti 128, 077190 Voluntari, Bucharest, Romania 6 European Commission, Joint Research Centre, Institute for Environment and Sustainability, Climate Change and Air Quality Unit, Via Fermi, 21027 Ispra, Italy 7 Faculty of Silviculture and Forest Engineering, Transylvania University of Brasov, Street Sirul Beethoven, nr. 1, Brasov, Romania E-mail: [email protected] Received 28 June 2011 Accepted for publication 9 September 2011 Published 10 October 2011 Online at stacks.iop.org/ERL/6/045202 Abstract The collapse of socialism in 1989 triggered a phase of institutional restructuring in Central and Eastern Europe.
    [Show full text]
  • Noble Hardwoods Network
    EUROPEAN FOREST GENETIC RESOURCES PROGRAMME (EUFORGEN) Noble Hardwoods Network Report of the second meeting 22-25 March 1997 Lourizan, Spain J. Turok, E. Collin, B. Demesure, G. Eriksson, J. Kleinschmit, M. Rusanen and R. Stephan, compilers ii NOBLE HARDWOODS NETWORK: SECOND MEETING The International Plant Genetic Resources Institute (IPGRl) is an autonomous international scientific organization, supported by the Consultative Group on International Agricultural Research (CGIAR). IPGRl's mandate is to advance the conservation and use of plant genetic resources for the benefit of present and future generations. IPGRl's headquarters is based in Rome, Italy, with offices in another 14 countries worldwide. It operates through three programmes: (1) the Plant Genetic Resources Programme, (2) the CGIAR Genetic Resources Support Programme, and (3) the International Network for the Improvement of Banana and Plantain (INIBAP). The international status of IPGRl is conferred under an Establishment Agreement which, by January 1998, had been signed and ratified by the Governments of Algeria, Australia, Belgium, Benin, Bolivia, Brazil, Burkina Faso, Cameroon, Chile, China, Congo, Costa Rica, Cote d'Ivoire, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Greece, Guinea, Hungary, India, Indonesia, Iran, Israel, Italy, Jordan, Kenya, Malaysia, Mauritania, Morocco, Pakistan, Panama, Peru, Poland, Portugal, Romania, Russia, Senegal, Slovak Republic, Sudan, Switzerland, Syria, Tunisia, Turkey, Uganda and Ukraine. Financial support for the Research Agenda of
    [Show full text]
  • Europe in the Year 2030: “Digital Technology, Active Citizenship, and the Society of the Future” (Berlin, 4Th - 9Th January 2011)
    - Cultural Diplomacy in Europe - A Forum for Young Leaders - Europe in the Year 2030: “Digital Technology, Active Citizenship, and the Society of the Future” (Berlin, 4th - 9th January 2011) A program of lectures and workshops exploring: • The Political Composition of the European Union in 2030: New Members, Former Members? • The Role of Digital Technology in the Society of the Future • The Use of Soft Power and Cultural Diplomacy by National States and the European Union • Bridging the Gap Between EU Institutions and the General Public: Active Citizenship ***** Participants of the program will also take part in: "The Future of EU Foreign Policy: An International Conference on the Political, Economic and Cultural Dimensions of EU Foreign Policy" (Berlin, 4th - 6th January 2011/ www.icd-euforeignpolicy.org) Speakers for the Conference include: Ana Trisic Babic; Deputy Minister of Foreign Affairs of Bosnia & Herzegovina Prof. Dr. Davorin Kračun; Former Minister for Economic Relations and Development of Slovenia, Former Foreign Minister, Former Deputy Prime Minister Dr. Emil Constantinescu; Former President of Romania Erna Hennicot Schoepges; Former Luxembourgian Minister of Culture and Religious Affairs Dr. Erhard Busek; Former Vice-Chancellor of Austria, Former Minister for Education & Cultural Affairs Gerassimos D. Arsenis; Former Minister of Economics of Greece, Former Minister of Education and Former Minister of Defence Dr. Jacques F. Poos; Former Deputy Prime Minister of Luxembourg, Minister of Foreign Affairs Jytte Hilden; Former Minister of Culture of Denmark Prof. Dr. Lufter Xhuveli; Former Albanian Minister of Environment Mirko Tomassoni; Former Captain Regent of San Marino Prof. Dr. Ulrich Brückner; Jean Monnet Professor for European Studies, Stanford University in Berlin Prof.
    [Show full text]
  • Austria FULL Constitution
    AUSTRIA THE FEDERAL CONSTITUTIONAL LAW OF 1920 as amended in 1929 as to Law No. 153/2004, December 30, 2004 Table of Contents CHAPTER I General Provisions European Union CHAPTER II Legislation of the Federation CHAPTER III Federal Execution CHAPTER IV Legislation and Execution by the Länder CHAPTER V Control of Accounts and Financial Management CHAPTER VI Constitutional and Administrative Guarantees CHAPTER VII The Office of the People’s Attorney ( Volksanwaltschaft ) CHAPTER VIII Final Provisions CHAPTER I General Provisions European Union A. General Provisions Article 1 Austria is a democratic republic. Its law emanates from the people. Article 2 (1) Austria is a Federal State. (2) The Federal State is constituted from independent Länder : Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria, Tirol, Vorarlberg and Vienna. Article 3 (1) The Federal territory comprises the territories ( Gebiete ) of the Federal Länder . (2) A change of the Federal territory, which is at the same time a change of a Land territory (Landesgebiet ), just as the change of a Land boundary inside the Federal territory, can—apart from peace treaties—take place only from harmonizing constitutional laws of the Federation (Bund ) and the Land , whose territory experiences change. Article 4 (1) The Federal territory forms a unitary currency, economic and customs area. (2) Internal customs borders ( Zwischenzollinien ) or other traffic restrictions may not be established within the Federation. Article 5 (1) The Federal Capital and the seat of the supreme bodies of the Federation is Vienna. (2) For the duration of extraordinary circumstances the Federal President, on the petition of the Federal Government, may move the seat of the supreme bodies of the Federation to another location in the Federal territory.
    [Show full text]
  • LETTER to G20, IMF, WORLD BANK, REGIONAL DEVELOPMENT BANKS and NATIONAL GOVERNMENTS
    LETTER TO G20, IMF, WORLD BANK, REGIONAL DEVELOPMENT BANKS and NATIONAL GOVERNMENTS We write to call for urgent action to address the global education emergency triggered by Covid-19. With over 1 billion children still out of school because of the lockdown, there is now a real and present danger that the public health crisis will create a COVID generation who lose out on schooling and whose opportunities are permanently damaged. While the more fortunate have had access to alternatives, the world’s poorest children have been locked out of learning, denied internet access, and with the loss of free school meals - once a lifeline for 300 million boys and girls – hunger has grown. An immediate concern, as we bring the lockdown to an end, is the fate of an estimated 30 million children who according to UNESCO may never return to school. For these, the world’s least advantaged children, education is often the only escape from poverty - a route that is in danger of closing. Many of these children are adolescent girls for whom being in school is the best defence against forced marriage and the best hope for a life of expanded opportunity. Many more are young children who risk being forced into exploitative and dangerous labour. And because education is linked to progress in virtually every area of human development – from child survival to maternal health, gender equality, job creation and inclusive economic growth – the education emergency will undermine the prospects for achieving all our 2030 Sustainable Development Goals and potentially set back progress on gender equity by years.
    [Show full text]
  • Presentation Greece En.Pdf
    ASSOCIATION INTERNATIONALE DES HAUTES JURIDICTIONS ADMINISTRATIVES INTERNATIONAL ASSOCIATION OF SUPREME ADMINISTRATIVE JURISDICTIONS Presentation form Name of the Court: Council of State Name of the President/Chief Justice: Aikaterini Sakellaropoulou Address:47-49, Panepistimiou Av. Phone number : (+ 30) 2132102098 Fax: (+ 30) 2132102097 Website: www.adjustice.gr E-mail: [email protected] 1. NATIONAL JUDICIAL ORGANISATION 1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order In Greece there is a distinction between the administrative courts on the one hand and the civil and criminal courts on the other (Article 93 (1) of the Constitution). The organisation of the two jurisdictional orders follows the classic pyramidal form in this matter: at the top of the civil and criminal jurisdictions is the Court of Cassation; then the courts of appeal and the courts of first instance; finally, at the base of the pyramid, justice of peace. At the head of the administrative jurisdiction is the Council of State; then the administrative courts of appeal and the administrative tribunals of first instance. The third supreme court, the Court of Audits knows, sovereignly, certain specific administrative disputes (listed in Article 98 of the Constitution). Disputes of attribution are settled by a Special Supreme Court (Article 100 of the Constitution). 1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts The creation of administrative tribunals was provided for in Greece as early as 1833. The Court of Audits was first established as an administrative body competent in certain administrative disputes submitted to it.
    [Show full text]
  • 1 Different Models for Protection of Constitutionality, Legality And
    Prof. Tanja Karakamisheva-Jovanovska, Ph.D 1 Different Models for Protection of Constitutionality, Legality and Independence of Constitutional Court of the Republic of Macedonia 1. About the different models of protection of constitutionality and legality The Constitutional Court is a separate body that serves as a watchdog of the constitution in a given country, and as a protector of the constitutionality, legality, and the citizens' freedoms and rights within the national legal system. From an organisational point of view, there are several models of constitutionality that can be determined, as follows: 1. American model based on the Marbery vs. Madison case (Marbery vs. Madison, 1803) , and, in accordance with the John Marshal doctrine, according to whom the constitutional issues are subject of interest and resolution of all courts that are under the scope of the regular judiciary (in an environment of decentralised, widespread of dispersed control procedure), and based on organisational procedure that is typical for the regular judiciary (incidenter). And while the American model with widespread system of protection of constitutionality gives the authority to all courts to assess the constitutionality of the laws, the European model concentrates all the power for the assessment of the constitutionality on one body. In Europe, there are number of countries that have accepted the American model, such as Denmark, Estonia, Ireland, Norway, Sweden, and in North America, besides the U.S., this model is also applied in Canada, as well as, on the African continent, in Botswana, Gambia, Ghana, Guinea, Kenya and other countries. 2 1 Associate Professor for Constitutional Law and Political System at the University "Sc.
    [Show full text]
  • Constitutional Courts Versus Supreme Courts
    SYMPOSIUM Constitutional courts versus supreme courts Lech Garlicki* Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 Constitutional courts exist in most of the civil law countries of Westem Europe, and in almost all the new democracies in Eastem Europe; even France has developed its Conseil Constitutionnel into a genuine constitutional jurisdiction. While their emergence may be regarded as one of the most successful improvements on traditional European concepts of democracy and the rule of law, it has inevitably given rise to questions about the distribution of power at the supreme judicial level. As constitutional law has come to permeate the entire structure of the legal system, it has become impossible to maintain a fi rm delimitation between the functions of the constitutional court and those of ordinary courts. This article looks at various confl icts arising between the higher courts of Germany, Italy, Poland, and France, and concludes that, in both positive and negative lawmaking, certain tensions are bound to exist as a necessary component of centralized judicial review. 1 . The Kelsenian model: Parallel supreme jurisdictions 1.1 The model The centralized Kelsenian system of judicial review is built on two basic assu- mptions. It concentrates the power of constitutional review within a single judicial body, typically called a constitutional court, and it situates that court outside the traditional structure of the judicial branch. While this system emerged more than a century after the United States’ system of diffused review, it has developed — particularly in Europe — into a widely accepted version of constitutional protection and control.
    [Show full text]