Article title Constitutional Jurisdiction in the Context of the European Model of Constitutionalism
Authors
Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 4/2018
Сторінки [93-107]
DOI https://doi.org/10.33498/louu-2018-04-093
Annotation

Constitutionalism as a unity of the ideology, doctrine and practice of constitutionally limited rule requires appropriate tools to implement it in reality. And the set of such tools is specific for each constitutionalism model: English, American, or European. In the context of the European model of constitutionalism, one of its main elements is constitutional jurisdiction which, along with ensuring legal supremacy of the constitution, also gives effect to the constitutional restrictions on the functioning of supreme bodies of state power and balances the entire constitutional system of government ensuring that is it free of arbitrariness. At the same time, during the past decade constitutional jurisdiction in Europe, and more specifically in its Eastern part, has been going through difficult times. A number of postsocialist countries (countries of young democracy, as they are referred to by the Council of Europe bodies) demonstrate intolerance to the operation of the bodies of constitutional jurisdiction and intervene with it, infringe upon the independence or even block the operation of constitutional courts (Poland, Hungary, Romania, Ukraine). Given the role played by constitutional jurisdiction in the European model of constitutionalism, it may be argued that such cases testify that constitutional systems of government experience serious crises. And since these cases are not isolated, they may be an indication of dangerous trends within the European legal space. This calls for a deeper comprehension of the role of constitutional jurisdiction and its specific features in the context of the European model of constitutionalism. The purpose of the article is to analyze the role of constitutional jurisdiction and its specific features in the context of the European model of constitutionalism. A special role of constitutional jurisdiction in the European model of constitutionalism is based on several factors. Firstly, this model is underlain by the written constitution which is recognized as the act of the constituent power of the people and which requires an appropriate system of legal protection; therefore, constitutional jurisdiction bodies ensure the supremacy of the constitution and the protection of the constitutional order established by it and the constitutional values upon which they are based. Secondly, parliamentarism is an important feature and at the same time an element of constitutionalism in its European version, and thus it is important to resolve the issues relating to constitutionality of laws in the European model of constitutionalism for the sake of preventing parliamentary arbitrariness. The arrangement of constitutional jurisdiction in the countries of continental Europe is characterized by a number of specific features. Despite the widely recognized opinion that it operates as a centralized model, there are a number of exceptions. Thus, most of the continental European states have indeed established the specialized bodies of constitutional jurisdiction (mainly constitutional courts). At the same time, in the six North European states constitutional jurisdiction is exercised by general courts, in Switzerland its functioning is characterized by a number of specific features, and the Netherlands do not have it at all.

 

Keywords constitutionalism; constitutional jurisdiction; European model
References

List of legal documents

Legislation 1.

Constitution of the Kingdom of the Netherlands <https://www.government.nl/topics/ constitution/documents/regulations/2012/10/18/the-constitution-of-the-kingdom-ofthenetherlands-2008> accessed 2 March 2018 (in English).

2. Constitution of the Republic of Estonia <https://www.president.ee/en/republic-ofestonia/ the-constitution/> accessed 2 March 2018 (in English).

3. Constitutional Review Court Procedure Act, Passed 13.03.2002, RT I 2002, 29, 174 <https://www.riigiteataja.ee/en/eli/530102013032/consolide> accessed 2 March 2018 (in English).

4. European Parliament resolution of 16 February 2012 on the recent political developments in Hungary, п. D <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP// TEXT+TA+P7-TA-2012-0053+0+DOC+XML+V0//EN> accessed 2 March 2018 (in English).

5. European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012), п. BC <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-// EP//TEXT+TA+P7-TA-2013-0315+0+DOC+XML+V0//EN> accessed 2 March 2018 (in English).

6. Opinion on three legal questions arising in the process of drafting the new Constitution of Hungary, Venice Commission, CDL-AD(2011)001, Strasbourg, 28 March 2011, p. 8 <http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDLAD( 2011)001-e> accessed 2 March 2018 (in English).

7. Study on Individual Access to Constitutional Justice, CDL-AD(2010)039, Venice Commission, Strasourg, 27 January 2011 <http://www.venice.coe.int/webforms/ documents/default.aspx?pdffile=CDL-AD(2010)039rev-e> accessed 2 March 2018 (in English). 8. Konstitutsiya Frantsuzskoy Respubliki 22 frimera VIII goda (13 dekabrya 1799 g.) [The Constitution of the French Republic of 22 Frimaire, Year VIII (December 13, 1799)]. URL: http://larevolution.ru/Constitution99.html (accessed: 22.12.2017) (in Russian).

 

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