TITLE: EAST EUROPEAN CONSTITUTIONAL REVIE W VOLUME 4, NUMBER 3 . SUMMER 1995 AUTHOR: STEPHEN HOLMES, EDITOR in CHIEF UNIVERSITY OF CHICAGO LAW SCHOO L THE NATIONAL COUNCI L FOR SOVIET AND EAST EUROPEA N RESEARC H TITLE VIII PROGRA M 1755 Massachusetts Avenue, N .W . Washington, D .C . 20036 NCSEER NOT E The quarterly journal East European Constitutional Review, is published by th e Center for the Study of Constitutionalism in Eastern Europe at the University o f Chicago Law School, and has been delivered by the Editor in Chief to the Counci l under contract 808-05 for reproduction and supplementary distribution . This will be the last issue distributed by the Council . The editors of the Review have informed us that current, as well as past issues are now available online via th e Internet, at the following gopher address : gopher://Iawnext.uchicago .edu :70/11 / .center.revie w (Interested parties may also explore the other research resources available throug h the main gopher address at : lawnext .uchicago .edu) . A hardcopy subscription t o the Review is also available free of charge (see the publisher's note at the bottom o f page 1) . PROJECT INFORMATION : ' CONTRACTOR : University of Chicag o PRlNCIPAL INVESTIGATOR : Stephen Holme s COUNCIL CONTRACT NUMBER : 808-05 DATE : September 7, 199 5 COPYRIGHT INFORMATION Individual researchers retain the copyright on work products derived from research funded b y Council Contract. The Council and the U .S. Government have the right to duplicate written report s and other materials submitted under Council Contract and to distribute such copies within the Council and U.S. Government for their own use, and to draw upon such reports and materials for their own studies; but the Council and U.S. Government do not have the right to distribute, o r make such reports and materials available, outside the Council or U.S. Government without th e written consent of the authors, except as may be required under the provisions of the Freedom o f Information Act 5 U.S.C. 552, or other applicable law . The work leading to this report was supported in part by contract funds provided by the National Counci l for Soviet and East European Research, made available by the U. S. Department of State under Title VIII (th e Soviet-Eastern European Research and Training Act of 1983) . The analysis and interpretations contained in th e report are those of the authors . East European Constitutional Review Volume 4, Number 3 Summer 1995 The Economics of Basic Right s The (Re)Birth of Polish Parliamentarism Russia as an Hour-Glass Society The East-German Spy Case Published quarterly by the Center for the Study of Constitutionalism in Eastern Europe a t the University of Chicago Law School in partnership with the Central European University CENTRAL AND EASTERN EUROPE 1995 East Europea n Constitutiona l Review Volume 4, Number 3 Summer 199 5 DEPARTMENTS 2 Constitution Watch Country-by-country updates on constitutional politics in Eastern Europe and the ex-USSR . 88 From the Cente r Conference in Budapest, Russian language Review, and acknowledgement of support . SPECIAL REPORTS 34 Richard Rose evaluates the New Russia Barometer. 43 Bronislaw Geremek speaks on parliamentarism in Poland . 49 Stanley Bach and Susan Benda on the Romanian Constitutional Court and Parliament. 54 Kathleen Imholz on "decommunization" in Albania . 61 Spencer Zifcak on the struggle between president and Parliament in Slovakia . 66 David Currie on the East-German spy case. FEATURE An Economic Perspective on Basic Rights 71 The Costs of Enforcing Legal Rights Richard A Posner 84 From Costs and Benefits to Fairness : Comments on Richard Posner Janos Kis East European Constitutional Review, Vol. 4, No. 3, Summer 1995. ISSN 1075-8402. Published quarterly by the Center for the Study o f Constitutionalism in Eastern Europe in partnership with the Central European University . Editor-in-Chief: Stephen Holmes . Senior Editors : Wiktor Osiatynski, Andras Sajo, Cass Sunstein. Executive Editor. Dwight Semler. Managing Editor. Nida Gelazis . Associat e Editors : Venelin L Ganev, Christian Lucky. Editorial Board: Alexander Blankenagel, Kenneth Dam, Jon Elster, Andrei Kortunov , Lawrence Lessig, Marie Mendras. Subscriptions are free. For information, write to the CSCEE, The University of Chicago Law School , 1111 East 60th Street, Chicago, Illinois, 60637 . Copyright © 1995 by the Center for the Study of Constitutionalism in Eastern Europe . EAST EUROPEAN CONSTITUTIONAL ,REVIEW Country-by-country updates on constitutional politics in Eastern Europ e Constitution Watch The constitution-making process was deputies introduced a motion to discharge two judges of the Albania suspended in February when the rul - Court of Cassation on the grounds that they do not meet the ing Democratic Party (DP) refused to requirements for an appointment to it under Art. 6.6 of the consider the opposition's draft constitution in the People' s Fundamental Law (Provisional Constitution) . Article 6 pro- Assembly (Parliament) . Ali Spahia, chairman of DP's parlia- vides that a member of this Court must "be an Albanian citizen , mentary party, confirmed that the Constitutional Commissio n holding a degree in law, distinguished for professional compe- will shortly begin negotiating a new draft. The "Law on Major tence and with no less than seven years experience in a lega l Constitutional Provisions" mandates that the draft charter "b e institution or as lecturer at the Faculty of Law ." (See EECR, prepared by a Special Commission appointed by the People' s Albania Update, Vol.4, No. 2, Spring 1995.) The allegation Assembly" (Art. 44). Members of the Constitutiona l seems disingenuous since the two judges were appointed by th e Commission have yet to be elected by Parliament. DP and parliamentary deliberations preceding the vote wer e Judicial independence and the appointment of judge s accompanied by a full disclosure of the candidates' professiona l remain a source of partisan discord in Albania as the DP maneu - experience and credentials. The sponsors of the motion did not vers to place its own people on the bench and to oust its oppo - offer any novel arguments to substantiate their claims or cas t nents. According to Art. 15.6 of the Constitutional Laws of th e doubt on the validity of the earlier vote . It seems that the tw o Republic of Albania, the Supreme Council of Justice appoints , judges were attacked because they are generally perceived as discharges, and transfers judges . In recent months, the Suprem e Brozi's closest allies on the Court of Cassation . Their removal, Council has appointed a number of lawyers to the bench wh o his enemies calculate, would probably curtail his influence. only recently graduated from a special accelerated law program . Members of the opposition as well as political commen- When the course was initially organized, the Ministr y of Justice tators consider the motion groundless and argue that it threat - assured the public that graduates would work only as assistant s ens the independence of the judiciary . In response to opposi- to police officers, investigators, prosecutors, and judges, and tha t tion at home and abroad, in particular from the Council of they would be ineligible for the bench . They nevertheless hav e Europe, the DP parliamentary chairman convinced his col - been appointed judges and inspectors in the Ministry of Justice . leagues to strike the motion from Parliament's agenda . One graduate was appointed chairman of the district court, a Executive agencies also enjoy vetting sitting judges . For court of first instance in Albania. He is the judge who rejecte d some time, inspectors from the Ministry of Justice have bee n Fatos Nano's appeal . reviewing the files of cases brought before the district courts . Various commentators have argued that the appoint- The inspectors allegedly uncovered a number of procedura l ments will reduce the professional qualifications of the judi- violations, such as unjustified delays in the adjudication o f ciary, and that they are attempts improperly to perpetuate th e cases, proceedings in the absence of one of the parties, and fail - DP's influence on the judiciary . "The fact is incomprehensi- ure properly to notify the parties of the day of the trials . After ble," wrote the newspaper of the opposition Party of th e the inspection was completed in Tirana and Elbasan , Democratic Alliance (PDA) on May 26, "that simple adminis- Minister of Justice Hektor Frasheri determined that tw o trative employees require a competitive examination but tha t judges of the Tirana Court and the chairman of the Elbasan the same does not apply to judges who issue opinions in the Court committed various violations. Frasheri then requested name of the people and the law . " the Supreme Council of Justice to remove the judges . DP members have renewed their efforts to remove judge s The chairmen of the two courts condemned the actions o f they perceive as political opponents . Following D P's failure to the administration as efforts to interfere with judicial indepen- repeal the immunity of Zef Brozi, chairman of the Court o f dence. The inspection, however, continued and resulted in the Cassation (Albania's highest appellate court), several DP resignation of Agim Bendo, chairman of the Tirana Court . Hi s 2 SUMMER 1995' , two deputies remained on the Court but were no longe r been in prison since his arrest in July 1993, was convicted i n deputy chairmen. In a public statement, Bendo declared that April 1994 for misappropriating state funds and forging docu - resigned in protest against the minister of justice who, h e ments. Lawyers for the two prisoners have argued that they alleges, tried to prevent certain cases from being heard an d should benefit from the new Code's formula, while prison offi- attempted personally to select court personnel .