EDITORS: RAINER ARNOLD INGRIDA DANĖLIENĖ THE CONCEPT OF DEMOCRACY AS DEVELOPED BY CONSTITUTIONAL JUSTICE XXII International Congress on European and Comparative Constitutional Law Vilnius, 4–5 October 2019 THE CONCEPT OF DEMOCRACY AS DEVELOPED BY CONSTITUTIONAL JUSTICE XXII International Congress on European and Comparative Constitutional Law Vilnius, 4–5 October 2019 LE CONCEPT DE DÉMOCRATIE DÉVELOPPÉ PAR LA JUSTICE CONSTITUTIONNELLE XXIIe Congrès international de droit constitutionnel européen et comparé Vilnius, les 4–5 octobre 2019 EDITORS: Rainer Arnold, Ingrida Danėlienė Vilnius 2020 The bibliographic information about the publication is available in the National Bibliographic Data Bank (NBDB) of the Martynas Mažvydas National Library of Lithuania All rights reserved. None of the parts of this work nor its entirety may be reproduced, stored in information systems, or transmitted in any form without the prior consent guaranteed by the copyrights owners. The author is accountable for the professional level and language corrections. ISBN 978-9955-688-46-4 (print) ISBN 978-9955-688-47-1 (online) © Constitutional Court of the Republic of Lithuania, 2020 TABLE OF CONTENTS Rainer Arnold Preface 7 Dainius Žalimas Foreword 8 Rainer Arnold The concept of democracy in the jurisprudence of the Federal Constitutional Court 11 Dainius Žalimas The concept of democracy as safeguarded by the Constitution: Regional and national challenges 22 Andrej Abramović The ‘immature’ democracy and its protector 45 Luiz Cláudio Allemand Fundamental economic rights – A guarantee of democracy 56 Baron André Alen La judicialisation de conflits politiques 66 Zlatan Begić European integration and needed constitutional reforms in Bosnia and Herzegovina: Reforms versus obstacles 69 Toma Birmontienė The concept of the independence of the national public broadcaster as developed by the Constitutional Court of Lithuania 97 Alexander Bröstl and Ľudmila Gajdošíková The concept of democracy and its relevant aspects in the constitutional justice of the Slovak Republic 106 Eugen Chelaru and Ramona Duminică Jurisprudence de la Cour constitutionnelle de Roumanie en matière de référendum consultatif national 119 Valentina Colcelli and Laura Burzagli Public administration and technology in the time of artificial intelligence: The Italian case of State Council judgment No 2019/2270 137 Mircea Criste Le référendum, expression de la démocratie. L’expérience roumaine 149 Ingrida Danėlienė Democratic referendums in the EU Member States: European standards and national experience 159 Francis Delaporte Le concept de démocratie développé par la justice constitutionnelle. Rapport luxembourgeois 171 Mathieu Disant Le concept de démocratie tel que développé par la justice constitutionnelle. Triptyque sur la situation française 178 Marcelo Figueiredo Le concept de démocratie tel que développé par la justice constitutionnelle 186 Selvete Gërxhaliu Democracy as a constitutional value and its mainstreaming in court cases 199 Constance Grewe Democracy in European constitutional law: A comparative perspective 221 Enver Hasani Constitutional review of democracy: Key decisions of the Constitutional Court of Kosovo 226 Cristina Hermida Del Llano Conscientious objection in democratic systems 253 Nikola Ivanovski Constitutional court protection of the principle of the rule of law as a fundamental value of the democratic order 263 Manana Kobakhidze The role of the Constitutional Court of Georgia in protecting democratic values and fundamental rights 269 César Landa Challenges of judicial appointment in Peru 283 Gabriella Mangione Some comments concerning the principle of a balanced budget and the role of the Constitutional Court in relation to migration 297 Viktor Muraviov and Nataliia Mushak The EU Court of Justice as a guardian of supranational and national democracies 310 Joakim Nergelius The relationship between national constitutional courts and the EU Court of Justice – A matter of growing importance in times of a ‘rule of law battle’ 316 Sandrine Perera Démocratie, droits fondamentaux et justice constitutionnelle en France 342 Sophie Perez La pratique des référendums sur les questions européennes 349 Étienne Picard Les présentations officielles du projet de loi de révision constitutionnelle « Pour un renouveau de la vie démocratique » : ou comment le non-droit produit du droit 364 Joêl Rideau Le principe démocratique dans les traités de l’Union européenne 388 Anna Rytel-Warzocha A priori constitutional review – Pros and cons in the light of doctrinal opinions and practical experience 410 Siniša Rodin Judicial neutrality 416 Ihor Slidenko The concept of democracy in the context of new horizons of the Ukrainian Constitution. The philosophical and conceptual basis of the new Constitution 422 Gheorghe Stan The principle of the separation and balance of state powers within the framework of constitutional democracy, reflected in the recent case law of the Constitutional Court 426 Andrzej Szmyt Impact of the jurisprudence of the Constitutional Tribunal on the shape of parliamentary law in Poland 435 Arta Vorpsi (Un)Constitutionality of the constitutional amendment and its effect on parliamentary discretion 450 Zbigniew Witkowski and Maciej Serowaniec Standards of ‘indecent legislation’ in Poland 460 Jiří Zemánek The contribution of the Czech Constitutional Court to the development of democracy 466 Rainer Arnold Preface PREFACE Democracy is the basis of contemporary constitutionalism. It enables the individual to co-determine the essential conditions of life as they are shaped by politics. To participate in the formation of the political will is an essential aspect of individual freedom and, therefore, closely connected with human dignity. The exercise of public power must be legitimated substantially and personally by the consent of the individuals, the people. The basic principles of democratic constitutionalism are linked together: human dignity as the value basis, the principle of freedom as the twin concept of dignity, the rule of law and social justice form a functional unit. Democracy is institutionalised by a large spectrum of provisions in the constitution and in implementing legislation, in particular on the electoral system, on political parties, on the organisation and function of the parliament. How democracy as a basic idea has to be understood in detail and whether the institutions function in accordance with it has been examined by constitutional justice. The role of constitutional courts in specifying the concept of democracy is of great importance and has been, for this reason, the main topic of the XXII International Congress on European and Comparative Constitutional Law, co-organised with the Constitutional Court of Lithuania, which took place in Vilnius on 4–5 October 2019. The Congress has continued the long tradition of an international forum of debate and exchange of ideas for constitutional judges and academics from many countries, having taken place for 18 years in Regensburg, co-organised with the Constitutional Court of Moldova in Chisinau in 2017, with the University of Gdansk in 2018, and with the World Jurist Organisation in Madrid in February 2019. Highest gratitude is owed to the Constitutional Court of Lithuania for financing and organisation, in particular to President Prof. Dr. Dainius Žalimas and to Secretary General of the Court Dr. Ingrida Danėlienė. Prof. Dr. Dr. h.c. mult. Rainer Arnold University of Regensburg, Germany 7 Dainius Žalimas Foreword FOREWORD The Constitutional Court of the Republic of Lithuania is proud to have been able to host the XXII International Congress on European and Comparative Constitutional Law ‘The Concept of Democracy as Developed by Constitutional Justice’, which took place in Vilnius in October 2019. Having evolved from the idea put forward by Professor Rainer Arnold of the University of Regensburg more than twenty years ago, this Congress (sometimes also referred to as the Congress of Regensburg) has become a unique traditional annual academic forum, bringing together constitutional law scholars of universities and judges of constitutional courts from Europe and other continents to discuss the most relevant issues of constitutionalism. The Congress has greatly contributed to the reintegration of the constitutional thought of Central and Eastern Europe into the western tradition of constitutionalism. Today, both the academic society in Central and Eastern European countries and their respective constitutional courts have an opportunity to provide their input in fostering the tradition of the Congresses of Regensburg. It is no coincidence that the XXII Congress of Regensburg was hosted in Vilnius – the city that has for centuries been well-known for its multiculturalism and tolerance and has, therefore, provided a great venue to discuss the concept of pluralistic democracy. The Congress was symbolically organised in October – the month in which the Lithuanian Constitution that is currently in force was adopted, because it is precisely then that the most favourable opportunity comes to draw the attention of the national and international academic and judicial society to the common democratic values, forming the foundations of our constitutions. Obviously, the topic of this Vilnius-based Congress on European and Comparative Constitutional Law was not coincidental, either. In general, the rich history of the Congresses of Regensburg proves that contemporary constitutional law can no longer be solely part of the national