The constitutional jurisprudence of the federal republic of Germany

Why are certain responses to past human rights violations considered instances of transitional justice while others are disregarded? This study interrogates the history of the discourse and practice of the field to answer that question. Zunino argues that a number of characteristics inherited as transitional justice emerged as a discourse in the 1980s and 1990s have shaped which practices of the present and the past are now regarded as valid responses to past human rights violations. He traces these influential characteristics from Argentina's transition to democracy in 1983, the end of communism in Eastern Europe, the development of international criminal justice, and the South African truth commission of 1995. Through an analysis of the post-World War II period, the decolonisation process and the Cold War, Zunino identifies a series of episodes and mechanisms omitted from the history of transitional justice because they did not conform to its accepted characteristics.

Justice Framed: A Genealogy of Transitional Justice

Recent literature on comparative judicial politics reveals a variety of roles that courts adopt in the process of democratization. These include, very rarely, serving as a trigger for democratization and, more commonly, serving as downstream guarantor for departing autocrats or as downstream consolidator of democracy. In light of these roles, this article reviews six relatively recent books: Courts in Latin America, edited by Helmke and Rios-Figueroa (2011); Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, by Hilbink (2007); Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Couso, Huneeus, and Sieder (2011); The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000, by Meierhenrich (2008); Judging Russia: Constitutional Court in Russian Politics 1990–2006, by Trochev (2008); and New Courts in Asia, edited by Harding and Nicholson (2010).

/pdf/courts-and-new-democracies-recent-works-28y8kx5y2e.pdf

Courts and New Democracies: Recent Works

This article considers how regional integration in Europe has informed processes of collective remembrance and transitional justice in Central and Eastern Europe. By taking the cases of Romania, Poland and the Czech Republic, two claims are made. First, although European institutions have not initiated top-down projects of historical reckoning, activists who have an interest in promoting engagement with the recent past have been able to draw the political, financial and/or judicial weight of European institutions behind particular reckoning initiatives, on an ad hoc basis. Second, the nature of the projects that have been realized with the assistance of European resources has varied across the region, according to the extent of prior efforts to promote collective remembrance and transitional justice at the national level. Where there have previously been constraints on historical reckoning, activists have drawn “Europe” behind efforts to promote national-level confrontations with particularly national exp...

Integrating the past: regional integration and historical reckoning in Central and Eastern Europe

Enforcement and conceptualisation of Article 2 TEU values – Rule of law – A non-regression principle for EU values faces significant pitfalls – Limits of the ‘backsliding’ paradigm informing doctrinal developments under Article 2 TEU – Inadequacy of a progress/regression trajectory as a lens for constitutional developments – Complexity of Article 2 values threatens to render regression assessments simplistic – Non-regression and the equality of member states – Potential conflicts between non-regression and minimum standards as tests for Article 2 compliance 

Constitutionalising the end of history? Pitfalls of a non-regression principle for Article 2 TEU

This article examines why, how, and with what results have judicial councils spread under the influence of European institutions throughout Central and Eastern Europe in the course of the last twenty years. It first traces back how the judicial councils, themselves just one possible form of administration of courts, have emerged as the recommended universal solution Europe-wide and internationally. Second, it discusses how has this model been exported under the patronage of European and international institutions to transition countries in Central and Eastern Europe. Assessing, thirdly, the reality of the functioning of such new judicial councils in these countries, in particular in Slovakia and Hungary, with the Czech Republic without a judicial council providing a counter-example, it is suggested that their impact on further judicial and legal transition has been either questionable or outright disastrous. This brings, eventually, into question the legitimacy as well as the bare reasonableness of the entire process of European/international standards setting and their later marketing or in reality rather imposition onto the countries in transition.

Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe

One of the most important challenges for the rule of law in the Czech Republic in the period of transition has been the so-called Lustration Acts. The Czech Lustration Acts have been widely acknowledged as one of the most far-reaching among the postcommunist countries in the CEE region. As a result, they were met with fierce criticism, not only from foreign and Czech scholars but also from dissidents themselves. However, this paper does not intend to reopen the early debate on the legitimacy of the introduction of the Czech Lustration Acts. Instead, it screens the Czech Lustration Acts against the contemporary jurisprudence of the European Court of Human Rights. This paper concludes that the Czech Lustration Acts might still survive the scrutiny of the European Court of Human Rights, but it argues that they should be repealed by the Constitutional Court of the Czech Republic as they violate the Czech Charter of Fundamental Rights and Basic Freedoms.

Lustration and Lapse of Time: ‘Dealing with the Past’ in the Czech Republic

Whether we like it or not, court-packing has flourished all over the world. Bolivian, Hungarian, Polish, and Turkish as well as Venezuelan political leaders have recently employed various strategies to stack their courts with loyal judges. Even in consolidated democracies, such as the United States, the possibility of court-packing is discussed with an intensity unheard of for several decades. Yet, our conceptual understanding of the phenomenon is still very limited. This article provides a novel conceptualization of court-packing and identifies three court-packing strategies: (1) the expanding strategy, which includes techniques that increase the size of the court; (2) the emptying strategy, which results in a decrease in the number of sitting judges; and (3) the swapping strategy, which aims at replacing sitting judges. Subsequently, it analyzes the potential safeguards, both formal and informal, against court-packing strategies and shows that formal institutions are rarely enough to fend off court-packing attempts.

How to Fight Court-Packing?

This paper discusses the notion of judicial accountability and argues that judicial accountability is as important as judicial independence for fostering the rule of law and effective judicial mediation of political transition. In the subsequent case studies, it focuses on the ‘large scale’ institutional design of administration of courts in the Czech Republic and Slovakia. The aim of this inquiry into the ‘large scale’ institutional design is two-fold: (1) to test whether Slovakia, a country with a strong judicial council, has performed better than the Czech Republic, a country without a judicial council, and (2) to explore how both states fare when it comes to judicial accountability in general.The structure of this paper reads as follows. Part 1 places judicial accountability to the context of transitional justice, tentatively defines the notion of judicial accountability, and discusses its relationship with judicial independence with focus on period of transition to democracy. Part 2 focuses on ‘large scale’ institutional design of administration of justice in the Czech Republic and Slovakia. It starts with a brief overview of institutional models adopted in the former Czechoslovakia, a predecessor of both states, and then proceeds to the contemporary institutional design of administration of justice in the Czech Republic and Slovakia. Part 3 first identifies the deficiencies and anomalies of the models of administration of justice in both countries. Subsequently, it provides assessment how both models fare when it comes to judicial accountability and draws tentative conclusions from the functioning of these models. Finally, Part 4 places the Czech and Slovak scenarios into the broader context of judicial reforms in the post-communist countries and identifies issues for further research.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2242010_code703253.pdf?abstractid=1689260&mirid=3

Judicial Accountability in the (Post)Transitional Context: A Story of the Czech Republic and Slovakia

This paper discusses the application of the European Union Law and the European Convention on Human Rights in the Czech Republic and Slovakia. Instead of a country-by-country analysis, we opted for an integrated approach, dividing the paper by subject matter. This illustrates the divergent applications in the Czech Republic and Slovakia despite their common legal background. The paper is divided to two main Parts. Part A focuses on European Union Law. Part B deals with the application of the European Convention on Human Rights. Both Part A and Part B consist of four sections. Part A. 1 describes the constitutional bases for domestic application of the EU Law. Part A. 2 discusses the constitutional cases dealing with EU Law. Part A. 3 explains the stance of both constitutional courts on various aspects of preliminary rulings. Part A. 4 examines the application of EU Law by ordinary courts and the jurisprudence of both constitutional courts reviewing of national law for compatibility with the EU law. Part B also starts with the constitutional bases for domestic application of the ECHR (Part B. 1) followed by an analysis of the effects of ECHR’s jurisprudence in both national systems (Part B. 2). Part B. 3 focuses on the application of the ECHR before both constitutional courts. Part B. 4 draws general conclusions on the application of the Strasbourg jurisprudence before ordinary courts. Finally, Part C contains concluding remarks.

The Application of European Union Law and the Law of the European Convention of Human Rights in the Czech Republic and Slovakia: An Overview

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