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Cambridge University Press978-1-108-48939-3 — European Constitutional Courts and Transitions to DemocracyFrancesco Biagi FrontmatterMore Information

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european constitutional courts and

transitions to democracy

This book brings together research on democratization processes and constitutionaljustice by examining the role of three generations of European constitutional courts inthe transitions to democracy that took place in Europe in the twentieth century. Using acomparative perspective, the author examines how the constitutional courts during thatperiod managed to ensure an initial full implementation of the constitutional provisions,thus contributing – together with other actors and factors – to the positive outcome of thedemocratization processes. European Constitutional Courts and Transitions to Democ-racy provides a better understanding of the relationship between transitions to democracyand constitutionalism from the perspective of constitutional courts.

francesco biagi is an Adjunct Professor of Comparative Constitutionalism, a Post-doctoral Research Fellow in Comparative Public Law at the University of Bologna Schoolof Law, and a Researcher at the Center for Constitutional Studies and DemocraticDevelopment. From October 2015 to January 2017, he was a Senior Research Fellow atthe Max Planck Foundation for International Peace and the Rule of Law (Heidelberg),where he now works as a legal consultant. He is the co-editor of Political and Consti-tutional Transitions in North Africa: Actors and Factors (with Justin O. Frosini, 2015).

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ASCL STUDIES IN COMPARATIVE LAW

ASCL Studies in Comparative Law is designed to broaden theoretical and practicalknowledge of the world's many legal systems. With more than sixty years’ experience, theAmerican Society of Comparative Law has been a leader in the study and analysis ofcomparative law. By promoting the investigation of legal problems in a comparative light,whether theoretical or empirical, as essential to the advancement of legal science, itprovides an essential service to legal practitioners and those seeking reform of the law.This book series will extend these aims to the publication of monographs and compara-tive studies of specific legal problems.

The series has two series editors. David Gerber is Distinguished Professor of Law and Co-Director of the Program in International and Comparative Law at Chicago-Kent Collegeof Law, Illinois Institute of Technology. He is currently President of the AmericanSociety of Comparative Law. Mortimer Sellers is Regents Professor of the UniversitySystem of Maryland and Director of the Baltimore Center for International andComparative Law. He is an Associate Member of the International Academy ofComparative Law.

Series Editors

David Gerber Chicago-Kent College of LawMortimer Sellers University of Baltimore

Editorial Board

Richard Albert University of TexasDavid Clark Willamette UniversityHelge Dedek McGill University

James Feinerman Georgetown UniversityRichard Kay University of Connecticut

Maximo Langer University of California Los AngelesRalf Michaels Duke University

Fernanda Nicola American UniversityJacqueline Ross University of Illinois

Kim Lane Scheppele Princeton UniversityFranz Werro Georgetown University

External Advisory Board

Josef Drexl University of MunichDiego Fernandez Arroyo Institut d'etudes politiques de Paris

Hongjun Gao Tsinghua UniversityMichele Grazidei University of TurinHisashi Harata University of Tokyo

Ko Hasegawa University of Hokkaido


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Andreas Heinemann University of ZurichChristophe Jamin Institut d'etudes politiques de Paris

Yong-Sun Kang Yonsei UniversityClaudia Lima Marques Federal University of Rio Grande do Sul

Bertil Emrah Oder Koc UniversityAmr Shalakany American University of Cairo


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European Constitutional Courts andTransitions to Democracy

FRANCESCO BIAGI

University of Bologna


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www.cambridge.orgInformation on this title: www.cambridge.org/9781108489393

doi: 10.1017/9781108776783

© Francesco Biagi 2020

This publication is in copyright. Subject to statutory exceptionand to the provisions of relevant collective licensing agreements,

no reproduction of any part may take place without the written permissionof Cambridge University Press.

First published 2020

Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall

A catalogue record for this publication is available from the British Library.

Library of Congress Cataloging-in-Publication Datanames: Biagi, Francesco, author.

title: European constitutional courts and transitions to democracy / Francesco Biagi.description: New York : Cambridge University Press, 2019. | Series: Ascl studies in comparative law |

Includes bibliographical references and index.identifiers: lccn 2019038263 (print) | lccn 2019038264 (ebook) | isbn 9781108489393 (hardback) |

isbn 9781108702393 (paperback) | isbn 9781108776783 (epub)subjects: lcsh: Constitutional courts–Europe. | Constitutional law–Europe. | Democracy–Europe. |

Justice, Administration of–Europe.classification: lcc kjc5456 .b525 2019 (print) | lcc kjc5456 (ebook) | ddc 347.4/035–dc23

LC record available at https://lccn.loc.gov/2019038263LC ebook record available at https://lccn.loc.gov/2019038264

isbn 978-1-108-48939-3 Hardback

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Ai miei genitori, Marina e Marco, e a mio fratello Lorenzo

A mia moglie Elena e a mia figlia Arianna


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Contents

Foreword page xiiiby Giuseppe de Vergottini

Professor Emeritus, University of Bologna

Acknowledgments xixNotes on the Text xxi

Introduction 1

1 Democratic Transitions and Constitutional Courts 8

1 Democratic Transitions 8

2 Formal Transition and Substantive Transition 13

3 From the Staatsgerichtsbarkeit to the Verfassungsgerichtsbarkeit 15

4 The Difficulties of the First European Constitutional Courts 18

5 The Close Link between the Processes of Democratic Transitionand the Setting Up of Constitutional Courts after World War II 23

A The “Terrible Lessons” Learned from Autocratic Regimes 24

B Distrust toward the Legislature and Fear of the Judiciary 27

C Constitutional Courts in the Constitution-Making Processes 29

D The Role of the Council of Europe and the European Union 31

2 The First Generation: The Case of the Italian Constitutional Court 33

1 The Constitutional Court in the 1948 Constitution 33

2 The Establishment of the Constitutional Court: A Long and ComplexProcess 41

3 1948–1956: The Blocking of the Substantive Transition 45

4 Decentralized Constitutional Review as a “Channel of Continuity” ofthe State 50

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5 The Constitutional Court in the Substantive Transition 57

A Judgment 1/1956: The First Ruling Overturning a Fascist Law 62

B The Court and the Non-Catholic Religions: A Stimulus for Reform 66

C The Right to Strike: The Court as a “Substitute” for Parliament 71

D The Court and Public Order: A Janus-Faced Case Law 76

6 The Italian Constitutional Court: A New Body Breaking with thePast and Going against the Tide 83

3 The Second Generation: The Case of the Spanish

Constitutional Court 87

1 The Transition to Democracy and the Politics of Consensus 87

A The Role of King Juan Carlos 91

B The Territorial Organization of the State 93

2 The Setting Up of the Constitutional Court 97

3 The Four Main Areas of Intervention of the ConstitutionalCourt during the Substantive Transition 101

A The Constitutional Court and the Upholding of theNormative Value of the Constitution 105

B The Constitutional Court and Preconstitutional Legislation:Quality More Than Quantity 110

C The End of a Burla: The Constitutional Court and theCreation of an Effective System of Protection of FundamentalRights 118

D The Constitutional Court and the “JurisprudentialConstruction” of the State of Autonomies 124

4 Reasons for Success 131

4 The Third Generation: The Case of the Constitutional

Court of the Czech Republic 134

1 From the Velvet Revolution to the Birth of Two Independent States 134

2 The Czech Republic: Continuity with the Past, InternalQuestions, and European Integration 141

3 Acceptance and Rejection of the Constitutional Court 146

4 Dealing with the Past: The Court and Transitional Justice 154

A The Defense of Democracy: The Federal Court, theCzech Court, and the Lustration Laws 155

B The Break with the Past: The Court and the Law on theIllegitimacy of the Communist Regime 161

C Remedy for Injustices: The Court and the Laws on theRestitution of Property 164

5 The Court and the Protection of Fundamental Rights 168

A The Right to Vote and the Electoral System 172

6 The Guardian of the Velvet Revolution 175

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5 Comparing Three Generations 178

1 Shared Actions: The Upholding of the Normative Value ofthe Constitution and the Protection of Fundamental Rights 178

2 Specific Issues Examined by the Constitutional Courts 185

3 The Success of the Centralized System 189

4 Factors Influencing the Action of the Constitutional Courts 192

A The Time Needed for the Constitutional Courts to Be Set Up 192

B The Appointment Procedure and the Status of ConstitutionalJudges 193

C The Procedural Gateways to the Courts and the ActorsEntitled to Appeal 195

D The Historical, Political, and Institutional Context 197

E The “Europe Factor” 199

5 The Countermajoritarian Difficulty and Transition Processes 203

6 Constitutional Courts as Guarantors of the Success of theTransitions to Democracy? 205

Bibliography 207

Index 229

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Foreword

Giuseppe de Vergottini

Professor Emeritus, University of Bologna

The introduction of constitutional review mechanisms represents one of the keystages characterizing a political regime change in the transition from an authoritar-ian to a democratic form of government. Taking this as his starting point, FrancescoBiagi addresses this topic by examining three different experiences of constitutionaltransformation. The first historical phase consists of the adoption of new consti-tutions in the aftermath of the political and institutional reconstruction that tookplace in Europe after World War II. The second phase is represented by theovercoming of the remaining authoritarian regimes present in Europe, namely theregimes of Salazar and Franco. The third phase consists of the abandonment ofsocialist constitutionalism in its Leninist version with the collapse of the authoritar-ian regimes that formed part of the Soviet bloc. Each of these historical phasesrequires an analysis of the specific constitutional developments. In the first phase thefocus is on the Constitution of Italy, in the second phase, on the Constitution ofSpain, and in the third phase, on the Constitution of Czechoslovakia.Biagi rightly places his analysis in the framework of the transitions from authori-

tarian regimes to democratic systems, a topic that has been examined by politicalscientists and legal scholars for more than two decades. His research seeks toascertain the impact of constitutional courts on the new constitutions, especiallywith regard to the effectiveness of the review of the legislation enacted by thepolitical forces in Parliament. Because the study aims to examine the effectivenessof constitutional review, quite understandably it is not limited to the analysis of theformal constitutional provisions, but also examines the concrete constitutionaldevelopments. Therefore, the focus is on the dynamics of the legal systems, andthis is why it is useful to rely on transitional studies.The notion of transition has emerged only in recent years in the domain of

constitutional law. In this respect, it should be noted that constitutional law studiestend to focus on the role of the constituent power (the radical change of a consti-tution and hence of the related political regime) and on constitutional amendments

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of various kinds (“partial” reforms and at times “total” reforms of the constitution asin the case of Switzerland, Spain, and Austria, and in various postsocialist consti-tutions). It was mainly political scientists who first examined the topic of regimechange, including the notion of transition, after which constitutional scholarselaborated the concept of constitutional transition.

The term “transition” does not have an unequivocal legal meaning, although it isevident that it refers to a change from something that exists to something emergingin its place. This concept does not cover all the developments and adaptationsresulting from the implementation of a constitution, deriving from political oradministrative practices and courts decisions (implicit changes), or from formalamendments (explicit changes), provided that the political regime and the form ofgovernment have remained the same. Moreover, the constitutional transition doesnot coincide with the concept of provisional constitution, which refers to a consti-tutional instrument adopted in historical phases characterized by precarious orprovisional arrangements prior to the adoption of definitive measures. Except inparticular cases, constitutional transitions do not give rise to provisional constitu-tions. In this respect, an example is given by the case of South Africa, where duringthe transitional phase a provisional constitution was adopted in 1993, prior to thefinal Constitution of 1996.

The term “transition” is used particularly to describe the evolution from authori-tarian regimes characterized by one-party systems to pluralistic and democraticsystems. Political scientists have argued that the transition is a situation on the moveand depicted it as a “process.” In fact, the transition is a concept that conveys theidea of a dynamic process entailing various phases culminating in that of “consoli-dation.” It is only at this point that, starting as a protest movement against a regimeand continuing with the progressive adoption of new principles and rules in theplace of the previous ones, the change can be said to be consolidated becausethe previous regime has been replaced by a new one. From a legal perspective, thetransitions culminating in the adoption of new constitutions or in major consti-tutional reforms accompanying the change of political regime and the form ofgovernment are particularly important. The evolution (transition) from authoritar-ian to democratic institutions has traditionally meant a regime change. This was thecase after the collapse of the Fascist and Nazi regimes in the mid-1940s, and then ofthe Salazar and Franco regimes in the 1970s, or with the generalized rejection of thesocialist model in favor of liberal democracy, at least in formal terms, after the fall ofthe Soviet Union at the end of the 1980s.

In this sense, transition means that one normative scheme consisting of certainprinciples and rules is replaced by another one. The transition may take place over aperiod, whereas the adoption of a new constitution is instantaneous. The formalconstitution, once adopted, is fixed at a certain point in time. The constitutionimmobilizes the change that has taken place, regardless of whether the processleading to its adoption has come about gradually or suddenly, and until such time as

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it does not undergo further change, it will remain in force. This does not rule outthe possibility that the implementation of its principles will be laborious andcomplex and that it will take time because the process of consolidation may turnout to be complicated. The implementation of the constitution is always character-ized by the adaptation of the principles to the reality. It is in this phase that the gapbetween the intentions of the constitutional framers and that which is permitted bycurrent circumstances becomes evident.When the decisions made by the pouvoir constituant impose a radical change

with respect to the past, as in the three case studies examined in this book, where theprevious authoritarian constitutions were abandoned, the developments taking placeafter the adoption of the new constitution are of the utmost importance. Therefore,the transition displays its effects over time. The formal constitutional provisionsprovide for a market economy, the regulation and protection of rights, politicaldemocracy, and the establishment of a new political culture. In particular, they alsoprovide for constitutional justice. However, all this initially exists only on paper. Theprinciples are nearly always merely aspirations, proposals, and policy statements, andas a result everything is projected forward into the implementation phase andthe practices that are later put into place. It is evident that these developments areachieved to various extents and across different time frames, depending on thecountry.The study shows the different level of difficulty encountered in effectively estab-

lishing constitutional courts. In each country examined in this book the positivefactors enabling constitutional justice to take root are discussed, along with thefactors causing delay or obstacles, that were to be overcome over time. One of themost problematic factors – affecting all the countries that set up (or tried to set up) aconstitutional court – consists of the constraints to the political representation inParliament due to constitutional review of legislation. Hence the inevitable obs-tacles that have stood in the way of the concrete development of the courts in certainhistorical periods.Among the positive factors, Biagi rightly highlights the leading role played by

international human rights courts. A strong influence was exerted by the principleslaid down in the treaties regulating the European organizations, with particularreference to the Council of Europe and the European Convention on HumanRights, as well as the European Union. Articles 6 and 49 of the Treaty Establishingthe European Community, as amended in 1997, laid down as requirements foraccession to the European Union respect for the principles of freedom, democracy,human rights and fundamental freedoms, and the rule of law. In its case law theEuropean Court of Human Rights has effectively contributed to strengthening therole of constitutional courts as the guardians of fundamental rights. Becausethe international jurisdiction on human rights has gradually taken on a pivotal rolein the evolution of contemporary constitutional orders, the supporting role of theStrasbourg Court has made a major contribution to reinforcing the overall role of

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European constitutional courts. As pointed out by the author, there can be no doubtthat the centrality of the role of the person and human rights has significantly shapedin a democratic sense the completion of the transition in the countries examined inthis study, and more in general in all the European experiences.

For the countries that have adopted a liberal democratic regime, numerousfactors and elements have contributed to facilitating an effective convergencebetween the formal constitution and the substantive constitution. However, it isalso important not to underestimate the factors that may hinder the role andfunctions granted by the constitutions to the constitutional courts. Biagi rightlypoints out that it would be mistaken to assume that the mere establishment of aconstitutional court would necessarily lead to an effective recognition of constitu-tionalism. This observation refers, among others, to the countries involved in the“Arab Spring,” but it also concerns the post-Communist European countries. Thelocal culture and constitutional traditions of a country may hinder and delaythe implementation of the constitutional safeguards. A constitutional court imposedby external forces without the approval of the local population has a limited chanceof success, as shown in the case of Bosnia, where an international treaty (the DaytonAgreement of 1995) concluded by the powers intervening in the region at the end ofa bloody conflict determined the framework for the Constitution of the Federationof Bosnia and Herzegovina (consisting of the Croat and the Muslim communities)and of the Serbian Republic of Bosnia Herzegovina. The Constitution, inspired bythe principles of liberal constitutionalism, envisaged a Constitutional Court com-posed not only of national judges but also of foreign judges selected at the inter-national level. However, this plan failed to take account of the popular will, in aframework that was substantially one of international protection. It is evident, then,that such an innovation was characterized by a congenital weakness.

On the whole, the countries emerging from the collapse of the Communistregime adopted constitutions containing a number of significant safeguards: in allcases, reference was made to the principles of liberal democracy, human dignity,pluralism, the rule of law, jurisdictional safeguards, the protection of minorities, andthe recognition of constitutional justice, with a wealth of declamatory statements.This vast apparatus of constitutional safeguards could not be accompanied in theshort term by the dissemination of a culture of rights, the formation of a democraticpolitical tradition, and a pluralistic information system. In practice, in most of thesecountries the preexisting cultural climate survived for a long time, favored by thepersistence of the nomenclature of the old regime, at times with a devastatingresurgence of conflicts between ethnic groups in a climate of bitter and exasperatedchauvinism.

In conclusion, the study confirms the pivotal role played by the constitutionalcourts in affirming the classic values of constitutionalism, with special reference tothe protection of individual rights, taking for granted the consolidation of theprinciple of the separation and balance of powers. The leitmotiv is that of the

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substantive elements of the constitutional safeguards that need to be provided toensure the effectiveness of the action of the constitutional judges. The analysis of thecase law of the constitutional courts in the period following the entry into force ofthe recent constitutions demonstrates the effective role of the constitutional judgesin operating in such a way as to enhance the credibility of the principles containedin these constitutions. In fact, the constitutionalism outlined in the written provi-sions of the new constitutions was shown to be applied in practice. This enables theauthor to conclude that thanks to this tenacious and constructive case law, aimedabove all at ensuring the effective implementation of fundamental rights, consti-tutional courts have achieved full legitimation.

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Acknowledgments

I wish to thank all those who, at various times and in various ways, gave me preciousadvice during the research and the drafting of this volume: Giuseppe de Vergottini,Susanna Mancini, Justin O. Frosini, Sana Alsarghali, Rainer Arnold, GiorgioBongiovanni, Marco Dani, Josu de Miguel, Angela Di Gregorio, Gustavo Gozzi,Giorgio Grasso, Tania Groppi, Andrea Guazzarotti, Ivana Janů, Siraj Khan, DavidKosař, Andrea Lollini, Soňa Matochová, Jason Mazzone, Sara Pennicino, ValeriaPiergigli, Čarna Pištan, Roberto Romboli, Kathrin Maria Scherr, and JavierTajadura.In addition, I wish to extend my sincere thanks to David Gerber and Mortimer

Sellers, editors of the book series “ASCL Studies in Comparative Law,” for theirsupport for this study.Finally, I wish to thank Bob Abernethy for having believed in this research project

from the very beginning.

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Notes on the Text

English translation: Francesco Biagi and William Bromwich.Originally published as Corti costituzionali e transizioni democratiche. Tre

generazioni a confronto (il Mulino, Bologna, 2016).The translation of this work has been funded by the George Lawrence

Abernethy Endowment for Research and Publications of the Center for Consti-tutional Studies and Democratic Development (a partnership between the JohnsHopkins University SAIS Europe and the University of Bologna), and by the MaxPlanck Foundation for International Peace and the Rule of Law (Heidelberg).

This book is geared toward an international audience. Therefore, severalchanges have been made to the original Italian version. These include the additionof English-language sources, new materials of interest to an international readership,and explanation of foreign terms.

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