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The Model of Constitutional Review in Central and Eastern Europe: An Overview

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Rights Before Courts

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Abstract

Notwithstanding the absence of a tradition of judicial review in their pre-Communist histories, and a legacy of strong rejection of the very principle of judicial review under Communism, all post-Communist states of CEE have established institutions and processes of constitutional review with considerable homogeneity: they have all opted for a system of centralised, ex post, abstract and final review of statutes. Although, there have been some departures from this paradigm which are noted in this chapter. More significant divergences exist in relation to who has standing to bring a challenge before the court, and, in particular, whether individual citizens have the right to lodge a constitutional complaint.

The tenure of judges is limited but relatively long, and the systems through which they are appointed are thoroughly political: such appointments are either made exclusively by parliaments, through a process of collaboration between the executive and the parliament, or by allocating a quota of seats on the court to be filled by different bodies (normally the president, the parliament and a body representing the judiciary). Pros and cons of these different systems of appointment are discussed. This institutional design has led to a concentration of the power to interpret the meaning of constitutional norms in constitutional courts, which created tensions between these courts and the supreme courts that claimed, unsuccessfully, the power to set aside laws that they consider unconstitutional.

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Notes

  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 interwar period, although it was a rather feeble institution; see Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago Press: Chicago, 2000) at 29–30.

  2. 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. 3.

    Id. at 351.

  4. 4.

    See Wojciech Sokolewicz, “Sąd Konstytucyjny w Rumunii”, in Janusz Trzcinski, ed., Sądy konstytucyjne w Europie (Wydawnictwa Trybunalu 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. 5.

    Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (1991–94), Sofia, 10 May 2001.

  6. 6.

    Stefan Rozmaryn, quoted in Miroslaw Granat, “Droga do sądownictwa konstytucyjnego w panstwach Europy Srodkowej i Wschodniej”, Panstwo i Prawo no. 12/2001 (vol. 56): 15–24 at 15.

  7. 7.

    Id., quoted in note 6 at 16.

  8. 8.

    Id. at 17.

  9. 9.

    Id. at 19.

  10. 10.

    Id. at 20.

  11. 11.

    Miroslav Cerar, “Slovenia’s Constitutional Court within the Separation of Powers”, in Sadurski, supra note 2: 213–46 at 213.

  12. 12.

    Described by Jiri Priban, “Judicial Power vs. Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System”, in Sadurski, supra note 2: 373–94 at 374–75.

  13. 13.

    Discussed in Chap. 9 in this book pp. 346–50.

  14. 14.

    See Kataryna Wolczuk, “The Constitutional Court of Ukraine: The Politics of Survival”, in Sadurski, supra note 2: 327–48 at 328–31.

  15. 15.

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

  16. 16.

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

  17. 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. 18.

    Decision of 23 March 2006.

  19. 19.

    Decision of 19 January 2006.

  20. 20.

    Decision of 11 May 2007.

  21. 21.

    Decision of 19 April 2006.

  22. 22.

    Judgment no. 42/2000 Pl US, of 24 January 2001. For a good analysis, see Jiří Přibáň, “Judicial Power vs. Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System”, in Wojciech Sadurski, ed., Constitutional Justice, East and West (Kluwer: Dordrecht 2002): 373–394 at 389–91.

  23. 23.

    For a detailed description of the whole story, see Zdenek Kühn and Jan Kysela, “Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic”, Europ. Constitutional Law Review 2 (2006): 183–208 at 196–205.

  24. 24.

    Pl. ÚS 18/06.

  25. 25.

    Klaus considers Constitutional Court ruling on Brozova erroneous, http://www.ceskenoviny.cz/news/index_view.php?id=209019

  26. 26.

    I am grateful to Professor Vlad Perju for his advice on the account contained in this paragraph.

  27. 27.

    Nikolaj Nielsen, “Romania court rules to reinstate President Basescu”, EUobserver, 21.08.2012 available at http://euobserver.com/justice/117292

  28. 28.

    Oliver W. Lembcke & Christian Boulanger, “Between Revolution and Constitution: The Roles of the Hungarian Constitutional Court”, in Gabor Attila Tóth, ed., Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (CEU Press: Budapest 2012): 269–99 at 280–81.

  29. 29.

    Art. 19 of the Fourth Amendment of Hungary’s Fundamental Law.

  30. 30.

    Decision No 22/2012 (V.11.).

  31. 31.

    Decision no. 22/2012.

  32. 32.

    Decision no. 1/2013 (I.7.).

  33. 33.

    Decision no. 3/2012 (II.14.) quoted in “Amicus Brief for the Venice Commission on the Fourth Amendment to the Fundamental Law of Hungary” ed. by Gabor Halmai and Kim Lane Scheppele (April 2013), available at http://halmaigabor.hu/dok/437_Amicus_Brief_on_the_Fourth_Amendment4.pdf (last accessed 18 January 2014) at p. 81.

  34. 34.

    Separate opinion by Justice Pokol in Decision 4/2013 (II.21).

  35. 35.

    “Amicus Brief”, supra note 33 at p. 82.

  36. 36.

    European Parliament, Report on the situation of fundamental rights, standards and practices in Hungary pursuant to the European Parliament resolution of 16 February 2012, 24 June 2013, A7-0229/2013, para 17.

  37. 37.

    The exceptions are Moldova, Montenegro, Serbia, and the Ukraine; in these states, solely abstract control by the Constitutional Court is envisaged. In Latvia, the possibility of concrete review has 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.

  38. 38.

    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.

  39. 39.

    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).

  40. 40.

    The exception is Estonia. However, based on a new statute on constitutional review of 2002, the Parliament may submit a request for an opinion to the Supreme Court for interpretation of the Constitution in conjunction with the EU law if the interpretation of the Constitution is of critical importance in adopting an Act in fulfilment of obligations of the member states in the EU.

  41. 41.

    In Bulgaria, Latvia, Moldova, Poland and Slovakia.

  42. 42.

    In Albania, Croatia, Czech Republic, Hungary, 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 and local government councils (as an ex ante review) or, for concrete review, by ordinary courts.

  43. 43.

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

  44. 44.

    In Albania, Latvia and Poland.

  45. 45.

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

  46. 46.

    In Slovenia and Ukraine.

  47. 47.

    In Slovenia.

  48. 48.

    Decision 23/1990 of 31 October 1990.

  49. 49.

    Decision 15/1991 of 13 April 1991.

  50. 50.

    Decision 36/1994 of 24 June 1994.

  51. 51.

    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.

  52. 52.

    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.

  53. 53.

    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.

  54. 54.

    Id. at 81–82.

  55. 55.

    Paul Blokker, New Democracies in Crisis? (Routledge: London, 2014), p. 155.

  56. 56.

    Interview with Professor Vojtech Cepl, Justice of the Constitutional Court of the Czech Republic, Prague, 22 March 2002.

  57. 57.

    Leszek Garlicki, “Orzecznictwo Trybunalu Konstytucyjnego w 2000 roku”, Przegląd sądowy (2001:9): 77–105 at 85–86.

  58. 58.

    Leszek Garlicki, “Orzecznictwo Trybunalu Konstytucyjnego w 1998 roku”, Przegląd sądowy (1999:6): 104–28 at 113.

  59. 59.

    Garlicki, supra note 57 at 86.

  60. 60.

    See Malgorzata Masternak-Kubiak, Ustawa o Trybunale Konstytucyjnym (Wydawnictwa Prawnicze PWN, Warszawa 1998): 48–49.

  61. 61.

    “Trybunal buduje praworządną Rzeczpospolitą”, Rzeczpospolita, 20th March 2002 at C-2 (remarks by the Chief Justice of the Constitutional Tribunal, Professor Marek Safjan).

  62. 62.

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

  63. 63.

    Brunner, supra note 51 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.

  64. 64.

    Halmai, supra note 53 at 204.

  65. 65.

    For a description of this case, and the ensuing attempt to find an institutional compromise, see id. at 204–206.

  66. 66.

    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.

  67. 67.

    Suren Avanesyan, “Constitutional Protection for Human Rights in the Russian Federation”, Journal of East European Law 6 (1999): 437–68 at 462.

  68. 68.

    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).

  69. 69.

    Interview with Prof. Lucian Mihai, President of the Constitutional Court of Romania, Bucharest, 9 March 2001.

  70. 70.

    Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May 2001.

  71. 71.

    Interview with Judge Pavlo Jevgrafov of the Constitutional Court of the Ukraine, Kiev, 22 November 2002.

  72. 72.

    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.

  73. 73.

    Decision no. 37/1992 (V.10) AB of 8 June 1992, reprinted in East European Case Reporter of Constitutional Law 2 (1995): 27–35.

  74. 74.

    See Brunner, supra note 51 at 85–6.

  75. 75.

    Zdzisáaw Czeszejko-Sochacki, Leszek Garlicki & Janusz Trzcinski, Komentarz do ustawy o Trybunale Konstytucyjnym (Wydawnictwo Sejmowe, Warszawa 1999) at 202.

  76. 76.

    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 Trybunaáu Konstytucyjnego, Rok 1997 (C.H. Beck: Warszawa 1998), item 6: 65–77 at 72.

  77. 77.

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

  78. 78.

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

  79. 79.

    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

  80. 80.

    Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May 2001.

  81. 81.

    Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian Federation, Moscow, 19 November 2001.

  82. 82.

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

  83. 83.

    Id.

  84. 84.

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

  85. 85.

    Id.

  86. 86.

    Id.

  87. 87.

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

  88. 88.

    Id.

  89. 89.

    Interview with Mr Horatiu Dumitru, Bucharest, 10 March 2001.

  90. 90.

    Id.

  91. 91.

    Garlicki supra note 57 at 84.

  92. 92.

    Decision K 37/97 of 6 May 1998, Orzecznictwo Trybunaáu Konstytucyjnego, Rok 1998 (C.H. Beck: Warszawa 1999): 167–75 at 172.

  93. 93.

    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.

  94. 94.

    Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May 2001.

  95. 95.

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

  96. 96.

    In Poland, until the 1997 Constitution removed this authority.

  97. 97.

    For example, in Hungary the following bodies can make such a request: the Parliament or its standing committee, the President of the Republic or the Government.

  98. 98.

    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.

  99. 99.

    Decision 128/1990 of 18 December 1990.

  100. 100.

    Decision 5/1995 (V.10) AB hat., discussed in “Constitution Watch”, East Europ. Constit. Rev. 4:3 (Summer 1995): 10 at 10–11.

  101. 101.

    Brunner, supra note 51 at 80.

  102. 102.

    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.

  103. 103.

    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.

  104. 104.

    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 Chap. 6 of this book.

  105. 105.

    Venelin I. Ganev, “The Bulgarian Constitutional Court, 1991–1997: A Success Story in Context”, Europe-Asia Studies 55 (2003): 597–611 at 600.

  106. 106.

    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.

  107. 107.

    Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (1991–94), Sofia, 10 May 2001.

  108. 108.

    Id.

  109. 109.

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

  110. 110.

    Weber, supra note 4 at 293.

  111. 111.

    Id. at 293.

  112. 112.

    Decision W 4/93 of 16 June 1993.

  113. 113.

    See Anna M. Ludwikowska, Sądownictwo konstytucyjne w Europie ĝrodkowo-Wschodniej w okresie przeksztaáceĔ demokratycznych (TNOiK, Torun 1997) at 94.

  114. 114.

    See id. at 97.

  115. 115.

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

  116. 116.

    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).

  117. 117.

    In Albania, Bulgaria, the Czech Republic, Hungary, Poland (but only after the 1997 Constitution), Russia, Slovakia, and Slovenia.

  118. 118.

    In Bulgaria, also the Vice-President.

  119. 119.

    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.

  120. 120.

    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.

  121. 121.

    More on this, in Sect. 3.2.

  122. 122.

    There will be further discussion on this in Sect. 3.3.

  123. 123.

    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 and Hungary, 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.

  124. 124.

    In Bulgaria, Latvia, Lithuania, Poland, Romania, Russia, Slovakia (although only since a constitutional amendment in 2001), Slovenia and the Ukraine.

  125. 125.

    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.

  126. 126.

    Id. at 38–39.

  127. 127.

    With the exception of Estonia, for the reasons mentioned above, and the “first Court” in Russia, which now can be seen as an aberration.

  128. 128.

    Leszek Lech Garlicki, “The Experience of the Polish Constitutional Court”, in Sadurski, supra note 2: 265–82 at 271.

  129. 129.

    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).

  130. 130.

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

  131. 131.

    Interview with Professor Vojtech Cepl, Justice of the Constitutional Court of the Czech Republic, Prague, 22 March 2002.

  132. 132.

    Garlicki, supra note 128 at 271.

  133. 133.

    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.

  134. 134.

    Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May 2001.

  135. 135.

    Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (1991–94), Sofia, 10 May 2001.

  136. 136.

    Interview with Professor Volodymir Tychyj, judge of the Constitutional Court of the Ukraine and former Vice-President of the Court, Kiev, 22 November 2002.

  137. 137.

    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.

  138. 138.

    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.

  139. 139.

    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 Appeals and the Supreme Administrative Court; in Latvia, three are appointed by Parliament, two by the Government and two by the Plenum of the Supreme Court from among the judges of the Republic of Latvia, and, in addition, all have to be confirmed by the Parliament; in Lithuania, the staggered process of nomination is divided between the President of the Republic, the President of the Seimas (the Parliament) and the President of the Supreme Court, and then the 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.

  140. 140.

    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 parliamentary factions are represented in proportion to their parliamentary seats) and Poland (where the lower chamber of Parliament, the Sejm, elects the judges by an absolute majority of votes).

  141. 141.

    Leszek Garlicki, “Trybunaá Konstytucyjny w projekcie Komisji Konstytucyjnej Zgromadzenia Narodowego”, Panstwo i Prawo 51:2 (1996): 3–19 at 6.

  142. 142.

    Garlicki, supra note 128 at 268.

  143. 143.

    Id. at 268.

  144. 144.

    Halmai, supra note 53 at 191–92.

  145. 145.

    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.

  146. 146.

    Interview with Professor Siniša Rodin of the Faculty of Law, University of Zagreb, Zagreb, 7 April 2000.

  147. 147.

    For a detailed account of the deal, see “Constitution Watch”, East Europ. Constit. Rev. 9:1/2 (Winter/Spring 2000) at 12.

  148. 148.

    Interview with Professor Yurii S. Shemshuchenko, Director of the Institute of State and Law, National Ukrainian Academy of Sciences, Kiev, 21 November 2002.

  149. 149.

    Interview with Judge Pavlo Jevgrafov, judge of the Constitutional Court of the Ukraine and former Vice-President of the Court, Kiev, 22 November 2002.

  150. 150.

    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.

  151. 151.

    Interview with Professor Todor Todorov, Justice of the Constitutional Court of Bulgaria, Sofia, 11 May 2001.

  152. 152.

    Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (1991–94), Sofia, 10 May 2001.

  153. 153.

    Id.

  154. 154.

    Id.

  155. 155.

    Ganev, supra note 105 at 600–601.

  156. 156.

    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 (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.

  157. 157.

    Leigh Sprague, “The Russian Constitutional Court”, Parker Sch. J.E. Eur. L. 4 (1997): 339–56, at 345.

  158. 158.

    Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian Federation, Moscow, 19 November 2001.

  159. 159.

    Id.

  160. 160.

    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.

  161. 161.

    “Neutral” is a self-description chosen by Justice Yaroslavtsev when hypothesising about some of the reasons for his successful appointment, id.

  162. 162.

    See Ludwikowska, supra note 113 at 186. Regarding Hungarian courts, see Brunner, supra note 51 at 82.

  163. 163.

    See footnote 37 above.

  164. 164.

    Tom Ginsburg, “Economic Analysis and the Design of Constitutional Courts”, Theoretical Inquiries in Law 3 (2002): 49–85 at 59.

  165. 165.

    Gábor Halmai, “Who is the Main Protector of Fundamental Rights in Hungary? The Role of the Constitutional Court and the Ordinary Courts”, in JiĜí PĜibáĖ, Pauline Roberts & James Young, eds., Systems of Justice in Transition: Central European Experiences since 1989 (Ashgate: Aldershot 2003): 50–73 at 66.

  166. 166.

    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 166 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.

  167. 167.

    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.

  168. 168.

    Quoted id. at 390.

  169. 169.

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

  170. 170.

    See the opinions of Constitutional Court Justice Morshchakova expressed in legal periodicals, summarised by Di Gregorio, id. at 394–95.

  171. 171.

    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.

  172. 172.

    Interview with Dr Vladimir G. Yaroslavtsev, Justice of the Constitutional Court of the Russian Federation, Moscow, 19 November 2001.

  173. 173.

    Quoted in Di Gregorio, supra note 167 at 403.

  174. 174.

    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.

  175. 175.

    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.

  176. 176.

    Interview with Professor Vojtech Cepl, Justice of the Constitutional Court of the Czech Republic, Prague, 22 March 2002.

  177. 177.

    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.

  178. 178.

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

  179. 179.

    See Holländer, supra note 177 at 454.

  180. 180.

    Interview with Dr Vladimir Sladecek of the Law Faculty, Charles University of Prague, Prague, 23 March 2002.

  181. 181.

    Holländer, supra note 177 at 450–52.

  182. 182.

    Id. at 452.

  183. 183.

    Id. at 456–57.

  184. 184.

    Garlicki, supra note 57 at 89.

  185. 185.

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

  186. 186.

    Janusz Trzcinski, “Orzeczenia interpretacyjne Trybunalu Konstytucyjnego”, PaĔstwo i Prawo 57:1 (2002): 3–14 at 9.

  187. 187.

    Garlicki, supra note 57 at 89 n. 17.

  188. 188.

    Id. at 89.

  189. 189.

    For a description of this “legal question” and of the Supreme Court’s response (in its decision of 4 July 2001), see Trzcinski, supra note 186 at 12.

  190. 190.

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

  191. 191.

    Lech Gardocki, “Osiagniecia i spory”, Rzeczpospolita (Warsaw) 15 April 2002 at C-2.

  192. 192.

    Roman Hausner, “Zapytajcie Trybunal”, Rzeczpospolita (Warsaw) 18 March 2002, http://www.rp.pl/gazeta/wydanie_020318/prawo/prawo_a_2.html

  193. 193.

    Lech Gardocki, “Czy potrzebna jest wykáadnia Trybunalu Konstytucyjnego”, Rzeczpospolita (Warsaw) 9 July 2001 at C-1.

  194. 194.

    See Marek Safjan, “Wykladnia prawa – uzyteczny instrument eliminowania niepewnosci”, Rzeczpospolita (Warsaw) 4 June 2001 at C-1.

  195. 195.

    Statement of the Chief Justice of the Polish Supreme Court, Lech Gardocki, quoted in “Trybunal buduje praworządną Rzeczpospolitą”, Rzeczpospolita (Warsaw) 20 March 2002 at C-1; see also “Trybunal przed dorocznym podsumowaniem”, Rzeczpospolita (Warsaw)19 March 2002 at C-2.

  196. 196.

    Id.

  197. 197.

    Gardocki, supra note 191 at C-2.

  198. 198.

    Czeszejko-Sochacki et al., supra note 75 at 155–56.

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    Wojciech Sadurski

  2. University of Warsaw, Warsaw, Poland

    Wojciech Sadurski

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Sadurski, W. (2014). The Model of Constitutional Review in Central and Eastern Europe: An Overview. In: Rights Before Courts. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-8935-6_1

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