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Judicial Review in Central and Eastern Europe: Rationales or Rationalizations?

Published online by Cambridge University Press:  19 March 2012

Wojciech Sadurski
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Abstract

Constitutional judicial review in Central and Eastern Europe has become an entrenched and powerful factor in the politics and constitutional life of these countries; indeed, it would be impossible to give even a rough account of these new democracies without bringing constitutional courts into the picture. For all their importance and activism, their introduction had not been preceded by any thorough debate concerning the merits and demerits of the model transplanted from Western Europe—especially, from Germany—and the developing jurisprudence of the courts was strangely silent about the grounds and the limits of the courts ‘legitimacy, especially when replacing parliamentary choices on rights implicating matters with the courts’ own views about the proper articulation of vague rights-provisions. This Article explores some of the reasons and consequences of this silence.

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Articles
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Israel Law Review , Volume 42 , Issue 3 , 2009 , pp. 500 - 527
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 Shapiro, Martin, The Success of Judicial Review, in Constitutional Dialogues in Comparative Perspective 193 (Kenney, Sally J., Reisinger, William M., & Reitz, John C. eds., 1999)CrossRefGoogle Scholar.

2 The Constitution of Romania, art. 144 (a); The Constitution of Hungary, art. 26(4); The Constitution of Poland, art. 122(3).

3 Article 147 of the Romanian Constitution, now repealed.

4 Sadurski, Wojciech, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe 8 (2005)Google Scholar [hereinafter Sadurski, Rights Before Courts].

5 In Bulgaria, Hungary, Slovakia. In Poland, until the introduction of 1997 Constitution, the Constitutional Tribunal had authority to pronounce binding interpretation of statutes.

6 See also Sadurski, Rights Before Courts, supra note 4, at 33-40.

7 A similar procedure is followed in Bulgaria, where the Constitutional Court is composed of twelve members, one third of which are elected by the National Assembly, one third by the President, and one third are elected during a joint session of the justices of the Supreme Court of Cassation and the Supreme Administrative Court.

8 See Sadurski, Wojciech, Postcommunist Charters of Rights in Europe and the US Bill of Rights, 65 J. L. & Contemporary Problems 101 (2002)Google Scholar.

9 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR].

10 I use throughout this Article a shorthand description “Kelsenian” in accordance with the conventionally adopted terminology but I am well aware that today's constitutional courts in Europe, thus characterized, do not fully match the model designed by Hans Kelsen and implemented in the pre-Second World War constitutional courts in Austria and Czechoslovakia. For one thing, Kelsen had not envisaged that adjudication would be based on constitutional bills of rights. For another, he famously described his ideal as that of a “negative legislator” while some of the most activist courts today provide legislators with positive formulas for rescuing the laws from unconstitutionality. See Sweet, Alec Stone, Governing with Judges 135 (2000)CrossRefGoogle Scholar.

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24 Id. at 67-68. Skach's argument partly resonates with Issacharoff, Samuel, Fragile Democracies, 120 Harv. L. Rev. 1405 (2007)Google Scholar.

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32 See Sadurski, Rights Before Courts, supra note 4, at 30.

33 Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson J, concurring). It should be noted, however, that Justice Jackson made this remark not in the context of the Supreme Court striking down a congressional act, but in the context of reversing a state court's decision.

34 See Sweet, Alec Stone & Mathews, Jud, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat'l L. 73, 1461–60 (2008)Google Scholar.

35 See Sadurski, Wojciech, Partnering with Strasbourg: Constitutionalization of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments, 9 Hum. Rts. L. Rev. 397 (2009)Google Scholar.

36 The first pilot judgment ever in the history of the ECtHR was Broniowski v. Poland, App. No. 31443/96, 2004-V Eur. Ct. H. R., where the Court found that broad measures needed to be undertaken so as to provide a general compensation for those claimants who had been repatriated in the course of a re-drawing of Poland's borders during the Second World War. The second, concerning the landlords rights in their relations with tenants, was Hutten-Czapska v. Poland, App. No. 35014/97, 45 Eur. H.R. Rep. 4 (judgment Feb. 22, 2005) (Grand Chamber June 19, 2006) (Grand Chamber Friendly Settlement Apr. 28, 2008).

37 See supra note 35.

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39 Id. at 288.

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46 By “Solange story” I understand a tradition of resistance, by many European constitutional courts, to the supremacy of EU law over national constitutional systems on the basis that national constitutional courts are the ultimate guardians of democracy and of constitutional rights. See Sadurski, id. at 2-3.

47 On Apr. 27, 2006, the Polish Constitutional Tribunal (Decision P 1/05) found a provision of the code of criminal procedure implementing the European Arrest Warrant (EAW) inconsistent with the constitutional prohibition of extradition of Polish citizens. The Constitution was duly amended on Sept. 8, 2006.

48 The Czech Constitutional Court annulled, in its decision PL US 50/04 of Mar. 8, 2006, governmental regulations on production quotas for sugar producers on the basis that the government has exercised a competence, which had been already transferred to the European Community; for discussion, see Sadurski, supra note 45, at 6-9.

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