Subjects

Annotation:

The course provides knowledge and understanding of the theoretical and practical aspects of the functioning and role of constitutional adjudication in the Central European region. The starting point of the course is to provide detailed knowledge to the status and functioning of European constitutional courts and the role of constitutional review. The purpose of the comparation is to provide broader knowledge and to point out (institutional, procedural, material, etc.) similarities and differences in the systems of constitutional adjudication of Central Europe as they are linked not only by common historical and theoretical base, but also in many respects by the similar nature of problems they recently face. The theoretical aspects of the course are complemented by case studies.
The course consists of two parts: the first deals with the theoretical aspects and current functioning of constitutional justice and the second with important topical areas of decision-making (equality and non-discrimination).
Credit requirements
To obtain credits, students must fulfil the condition of attendance (75%), active participation in the course and a presentation on a selected topic (e.g. presentation of the design and functions of a specific constitutional court or selected case law). Presentations will take place continuously throughout the semester.

Last update: Marešová Svatava, Ing. (03.02.2025)

The course provides knowledge and understanding of the theoretical and practical aspects of the functioning of
constitutional adjudication in the Central European region. The starting point of the course is to provide detailed
knowledge of the status and functioning of the Constitutional Court of the Czech Republic. Simultaneously, the
course places the constitutional adjudication of Czech Republic into a wider context of Central Europe, i.e. in the
context of constitutional adjudication as applied in Germany, Austria, Poland, Slovakia and Hungary. The purpose
of the comparatistics is to provide broader knowledge and to point out (institutional, procedural, material, etc.)
similarities and differences in the systems of constitutional adjudication of Central Europe as they are linked not
only by common historical and theoretical base, but also in many respects by the similar nature of problems they
recently face.

Last update: Sojka Miroslav, Mgr. (17.12.2019)

Exam:

To obtain credits, students must fulfil the condition of attendance (75%), active participation in the course and elaboration of the final essay (range of at least 5 standard pages).

Means of communication: email, MS Teams

Last update: Marešová Svatava, Ing. (16.01.2023)

To obtain credits, students must fulfil the condition of attendance (75%), active participation in the course and elaboration of the final essay (range of at least 5 standard pages).

Last update: Sojka Miroslav, Mgr. (17.12.2019)

Syllabus:

1. Introduction, theory of constitutionalism, political and legal constitutionalism, US and European model of constitutional review: similarities, differences and influences.

2. Doctrinal and institutional approaches to constitutional judicial review in developed countries and their historical roots (abstract, concrete, incidental, ex post, ex ante, concentrated, diffused etc. constitutional review), constitutional adjudication in wider context of constitutional theory (the idea of the protector of the constitutional system, constitutional review and the constituent power etc.).

2. History of the theory and application of the constitutional review in Central Europe - the theoretical roots of the continental model of constitutional review (Hans Kelsen, normative approaches), first application of the model in Central Europe in interwar period (Czechoslovakian Constitutional Court, limits of implementation of constitutional review in other Central European countries, the reaction to the authoritarian turn in the 30´s), reconstruction of constitutional review after the Second World War and its downfall under communist regimes.

3.The recent position of the constitutional courts in the national division of power models in Central Europe - basic institutional, procedural and jurisdictional characteristics; personal organization; the creation of the constitutional courts; functional relations to other state bodies; the content and extent of competencies.

4. The recent position of the constitutional courts II.

5. The constitutional courts under attack from the realm of political sphere in the Central European experience - personal emptying, personal take-overs and the reduction of competencies as tradition dangers to constitutional review.

6. The role of constitutional courts in the processes of the decline of liberal democracy in the Central Europe - stance towards the pressure in the human rights discourse, stance towards the political dynamics of illiberal democracies.

7. Thematic part: Equality and the prohibition of discrimination in the case law of constitutional and European courts.

8. Judicial responses to structural discrimination, focusing on discrimination and segregation of Roma.

9. Case studies

10. Case studies II, conclusions

Course Goals:

The purpose of the Course is to provide broader knowledge and to point out (institutional, procedural, material, etc.) similarities and differences in the systems of constitutional adjudication of Central Europe as they are linked not only by common historical and theoretical base, but also in many respects by the similar nature of problems they recently face.

Readings for theoretical part:

Tom Ginsburg & Rosalind Dixon, "Comparative Constitutional Law: Introduction" (University of Chicago Public Law & Legal Theory Working Paper No. 362, 2011), https://chicagounbound.uchicago.edu/public_law_and_legal_theory/67/

Greene, J., and Tew, Y. Comparative approaches to constitutional history, in Delane, E., Dixon,R. eds. Comparative Judicial Review, Edward Elgar Publishing, 2018, 379–402, file:///C:/Users/Helenka/Downloads/-9781788110594.00002.pdf

Komárek, Jan (2014) National constitutional courts in the European constitutional democracy. International Journal of Constitutional Law, 12 (3). pp. 525-544. ISSN 1474-2640, https://academic.oup.com/icon/article/12/3/525/763772

Drinóczi T, Bień-Kacała A. Illiberal Constitutionalism: The Case of Hungary and Poland. German Law Journal. 2019;20(8):1140-1166, https://www.cambridge.org/core/journals/german-law-journal/article/illiberal-constitutionalism-the-case-of-hungary-and-poland/01DA5EB12D2734935C659B96CE012BFD

Readings for thematic part:

Van den Bogaert, Sina (2011), ‘Roma Segregation in Education: Direct or Indirect Discrimination? An Analysis of the Parallels and Differences between Council Directive 2000/43/EC and Recent ECtHR Case Law on Roma Educational Matters’, 71 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, pp. 719-753
(https://www.zaoerv.de/71_2011/71_2011_4_a_719_754.pdf).

Chopin, Isabelle, et al. (2017), Roma and the Enforcement of Anti-discrimination Law, European Commission, Luxembourg: Publications Office of the European Union.
(https://op.europa.eu/en/publication-detail/-/publication/cd62f9fe-92ae-11e7-b92d-01aa75ed71a1/language-en).

McCrudden, Christopher (2016), ‘The New Architecture of EU Equality Law After CHEZ: Did the Court of Justice Reconceptualise Direct and Indirect Discrimination?’, SSRN (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2797587).

Sys, Filip (2020), ‘D.H. v. Czech Republic: Roma Educational Equality and the Vulnerability of Strategic Litigation’, 20(1) AUC Studia Territorialia, pp. 71-95
(https://stuter.fsv.cuni.cz/stuter/article/view/797).

Case Law:

1. ECtHR, D.H. and Others v. the Czech Republic - 57325/00, Judgment 13.11.2007 [GC]
(https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-2439%22]}).

2. ECtHR, Oršuš and Others v. Croatia - 15766/03, Judgment 16.3.2010 [GC],
(https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-1063%22]}).

3. ECtHR, Elmazova and Others v. North Macedonia - 11811/20 and 13550/20, Judgment 13.12.2022 [Section II],
(https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-13941%22]}).

4. CJEU, Case C-83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia ECLI:EU:C:2015:480,
(https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=C-83/14&jur=C).

Last update: Marešová Svatava, Ing. (03.02.2025)

a) Introduction - doctrinal and institutional approaches to constitutional judicial review in developed countries and their historical roots (abstract, concrete, incidental, ex post, ex ante, concentrated, diffused etc. constitutional review), constitutional adjudication in wider context of constitutional theory (the idea of the protector of the constitutional system, Kelsen vs. Schmitt controversy, constitutional review and the principle of sovereignty, constitutional review and the constituent power etc.).

b) History of the theory and application of the constitutional review in Central Europe - the theoretical roots of the continental model of constitutional review (Hans Kelsen, normativist approaches), first application of the model in Central Europe in interwar period (Czechoslovakian Constitutional Court, limits of implementation of constitutional review in other Central European countries, the reaction to the authoritarian turn in the 30´s), reconstruction of constitutional review after the Second World War and its downfall under communist regimes.

c) The recent position of the constitutional courts in the national division of power models in Central Europe - basic institutional, procedural and jurisdictional characteristics; personal organization; the creation of the constitutional courts; functional relations to other state bodies; the content and extent of competencies.

d) Constitutional courts and their view on some of the questions of constitutional theory concerning their own position in constitutional system - Different approaches to the extent and limits of constitutional adjudication in respect to constituent power and political processes, the danger of judicial activism.

e) Constitutional courts and international judicial authorities - positions of constitutional courts towards the jurisdiction of European Court of Human Rights and European Court of Justice.

f) Constitutional courts of Central Europe and their stance on the question of sovereignty in the context of European integration.

g) The constitutional courts under attack from the realm of political sphere in the Central European experience - personal emptying, personal take-overs and the reduction of competencies as tradition dangers to constitutional review.

h) The role of constitutional courts in the processes of the decline of liberal democracy in the Central Europe - stance towards the pressure in the human rights discourse, stance towards the political dynamics of illiberal democracies.

Last update: Sojka Miroslav, Mgr. (17.12.2019)

Literature:

KELSEN, H. Pure theory of law.

SCHMITT, C. Constitutional Theory.

DE VISSER, M. Constitutional review in Europe: a comparative analysis. Oxford : Hart Publishing. 2015.

BLOKKER, Paul. New Democracies in Crisis?: A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia. Abingdon: Routledge, 2014.

SADURSKI, Wojciech. Poland's Constitutional Breakdown. Oxford : Oxford University Press. 2019.

BENVINDO, J. Z. On the limits of constitutional adjudication: deconstructing balancing and judicial activism. Springer. 2014

VANBERG, Georg. 2009. The politics of constitutional review in Germany. Cambridge: Cambridge University Press.

Last update: Sojka Miroslav, Mgr. (17.12.2019)

Literature:

KELSEN, H. Pure theory of law.

SCHMITT, C. Constitutional Theory.

DE VISSER, M. Constitutional review in Europe: a comparative analysis. Oxford : Hart Publishing. 2015.

BLOKKER, Paul. New Democracies in Crisis?: A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia. Abingdon: Routledge, 2014.

SADURSKI, Wojciech. Poland's Constitutional Breakdown. Oxford : Oxford University Press. 2019.

BENVINDO, J. Z. On the limits of constitutional adjudication: deconstructing balancing and judicial activism. Springer. 2014

VANBERG, Georg. 2009. The politics of constitutional review in Germany. Cambridge: Cambridge University Press.

Last update: Sojka Miroslav, Mgr. (17.12.2019)