European Constitutional Courts and Transitions to Democracy

Description

This book brings together research on democratization processes and constitutional justice by examining the role of three generations of European constitutional courts in the transitions to democracy that took place in Europe in the twentieth century. Using a comparative perspective, the author examines how the constitutional courts during that period managed to ensure an initial full implementation of the constitutional provisions, thus contributing - together with other actors and factors - to the positive outcome of the democratization processes. European Constitutional Courts and Transitions to Democracy provides a better understanding of the relationship between transitions to democracy and constitutionalism from the perspective of constitutional courts. Cover Half-title Series information Title page Copyright information Dedication Contents Foreword Acknowledgments Notes on the Text Introduction 1 Democratic Transitions and Constitutional Courts 1 Democratic Transitions 2 Formal Transition and Substantive Transition 3 From the Staatsgerichtsbarkeit to the Verfassungsgerichtsbarkeit 4 The Difficulties of the First European Constitutional Courts 5 The Close Link between the Processes of Democratic Transition and the Setting Up of Constitutional Courts after World War II A The ''Terrible Lessons'' Learned from Autocratic Regimes B Distrust toward the Legislature and Fear of the Judiciary C Constitutional Courts in the Constitution-Making Processes D The Role of the Council of Europe and the European Union 2 The First Generation: The Case of the Italian Constitutional Court 1 The Constitutional Court in the 1948 Constitution 2 The Establishment of the Constitutional Court: A Long and Complex Process 3 1948–1956: The Blocking of the Substantive Transition 4 Decentralized Constitutional Review as a ''Channel of Continuity'' of the State 5 The Constitutional Court in the Substantive Transition A Judgment 1/1956: The First Ruling Overturning a Fascist Law B The Court and the Non-Catholic Religions: A Stimulus for Reform C The Right to Strike: The Court as a ''Substitute'' for Parliament D The Court and Public Order: A Janus-Faced Case Law 6 The Italian Constitutional Court: A New Body Breaking with the Past and Going against the Tide 3 The Second Generation: The Case of the Spanish Constitutional Court 1 The Transition to Democracy and the Politics of Consensus A The Role of King Juan Carlos B The Territorial Organization of the State 2 The Setting Up of the Constitutional Court 3 The Four Main Areas of Intervention of the Constitutional Court during the Substantive Transition A The Constitutional Court and the Upholding of the Normative Value of the Constitution B The Constitutional Court and Preconstitutional Legislation: Quality More Than Quantity C The End of a Burla: The Constitutional Court and the Creation of an Effective System of Protection of Fundamental Rights D The Constitutional Court and the ''Jurisprudential Construction'' of the State of Autonomies 4 Reasons for Success 4 The Third Generation: The Case of the Constitutional Court of the Czech Republic 1 From the Velvet Revolution to the Birth of Two Independent States 2 The Czech Republic: Continuity with the Past, Internal Questions, and European Integration 3 Acceptance and Rejection of the Constitutional Court 4 Dealing with the Past: The Court and Transitional Justice A The Defense of Democracy: The Federal Court, the Czech Court, and the Lustration Laws B The Break with the Past: The Court and the Law on the Illegitimacy of the Communist Regime C Remedy for Injustices: The Court and the Laws on the Restitution of Property 5 The Court and the Protection of Fundamental Rights A The Right to Vote and the Electoral System 6 The Guardian of the Velvet Revolution 5 Comparing Three Generations 1 Shared Actions: The Upholding of the Normative Value of the Constitution and the Protection of Fundamental Rights 2 Specific Issues Examined by the Constitutional Courts 3 The Success of the Centralized System 4 Factors Influencing the Action of the Constitutional Courts A The Time Needed for the Constitutional Courts to Be Set Up B The Appointment Procedure and the Status of Constitutional Judges C The Procedural Gateways to the Courts and the Actors Entitled to Appeal D The Historical, Political, and Institutional Context E The ''Europe Factor'' 5 The Countermajoritarian Difficulty and Transition Processes 6 Constitutional Courts as Guarantors of the Success of the Transitions to Democracy? Bibliography Index