By Wojciech Sadurski
Hard the traditional knowledge that constitutional courts are the easiest equipment that democratic structures have for the security of person rights, Wojciech Sadurski examines the newest wave of activist constitutional courts: those who have emerged after the autumn of communism in crucial and jap Europe. not like so much different analysts and students he doesn't take without any consideration that they're a "force for the good", yet quite matters them to serious scrutiny.
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Extra info for Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe
Example text
In contrast, if the court was convinced about the unconstitutionality of a statute, it could simply disregard the statute and apply the Constitution directly. In other words, it could give effect to its own understanding of the true meaning of a constitutional provision as applied to a concrete case before it. CONSTITUTIONAL REVIEW 21 However, the Constitutional Court reacted by asserting its monopoly over judicial review. 151 A justice of the Constitutional Court in Russia explained the reasons for the strong rejection of the principle that ordinary courts could apply the Constitution directly and, in the process, declare statutes unconstitutional in the following manner: “We would reach the situation that, in one place, a court would declare the statute invalid and, in another place, the same statute would be found valid.
153 It should be added that such a pattern of conflict is not specific to CEE courts only. One may observe a more general trend that whenever constitutional courts have been established in post-authoritarian contexts, a pattern of conflict between these courts on the one hand, and the supreme courts (plus other ordinary courts) on the other, has emerged. This was the case, for example, in Spain soon after the establishment of the Constitutional Court,154 and also in Italy and Portugal. Such conflicts are understandable.
158 To be more precise, the controversy between the two courts centred on three inter-related issues. First, whether the Constitutional Court could review the decisions of courts (this being an element of the debate over whether courts are “public authorities” in the constitutional sense). Second, whether decisions of the Constitutional Court are binding upon the future decisions of all courts, and not only in the specific case decided. Finally, whether the decisions are binding only insofar as the statement of the verdict is concerned (which is a statement of unconstitutionality only a few sentences long) or whether the reasoning (ratio decidendi) is binding as well, as the Constitutional Court maintained.