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La crescita delle Corti costituzionali nei paesi dell’Europa centrale e orientale dopo la caduta del comunismo: alla ricerca del monopolio sulla giustizia costituzionale
SKU: 9911179012
Sadurski Wojciech
28,99 €

Nr. Pagine:
29
Formato:
PDF

After the fall of Communism, countries of that region embarked (out of necessity, but also with a degree of enthusiasm) upon a large-scale constitutional engineering, and part of an overall constitutional reform has been setting up of constitutional courts – institutions hardly known in the region before. But the judicial space within which they entered wasn’t, however, empty: there have been “ordinary” courts, and in particular Supreme Courts. The conflict could not have been avoided – and it wasn’t. The “war of the courts” was an objectively conditioned inter-institutional rivalry in the situation where the legitimacy of the new institution was not fully and completely established but at the same time the authority of the old institutions was widely questioned. In this article I also offer an outline of the general model of constitutional review adopted in CEE; I discuss the question of non-compliance with constitutional courts’ judgments by the other institutions; I also describe the effects of Europeanization – resulting from the entry of CEE states into the Council of Europe and the European Union – upon the position of constitutional courts. In the last part of the article I offer three general concluding remarks about constitutional courts in CEE. First, constitutional courts established themselves as strong political players especially in those countries where democracy became more consolidated: there is a clear correlation between the degree of democratic consolidation and the strength and activism of a constitutional court. One powerful factor informing this correlation is a link between democratic consolidation and the depth of penetration of European norms of political institutional design and behaviour. Since the factor of emulation of European norms has been a powerful legitimating factor in democratization of post-communist states, it is not surprising that those countries which were farthest in the democratic consolidation saw themselves endowed with most activist, independent and dynamic courts. Second, one source of the activism of CEE constitutional courts was the context of post-communist transition which triggered the need for an adjudicative bodies to often perform legislative function, especially of filling the inevitable gaps in law, and of adjusting the old constitutional texts to the new axiological foundations of the democratic political system. The specificity of the post-communist transition, which consists of difficult and often contradictory combination of continuation and change, called for a body which is at the same time “conservative” and “transformative”. Third, constitutional courts benefited from the Europeanization, i.e. from the accession of their countries into the 332 Wojciech Sadurski Council of Europe and into the EU. By aligning themselves with highly prestigious international tribunal such as the European Court of Human Rights in Strasbourg, and then by distancing themselves from the unconditional supremacy of the EU law over domestic constitutional orders, the courts managed to bolster their position vis-à-vis other domestic political actors, and also to reinforce their prestige in the public opinion.

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