Vienna Journal on International Constitutional Law

ISSN 2306-3734 (Print)
ISSN 1995-5855 (Online)

Abstract: This paper clarifies the role and position of the Head of State from a comparative perspective, as well as the protection of that institution from an extra constitutional dismissal via constitutional amendment. Its starting point was the exercise by the Constitutional Court of Kosovo of abstract preventive control of eleven (11) proposed constitutional amendments. The Court declared unconstitutional over sixty (60) per cent of them, including amendment ten (10), the major subject of this paper. In this case, the Court made it clear that the early termination of the mandate of the Head of State undertaken through the enactment of a new constitutional amendment was unconstitutional. Ultimately, the paper demonstrates that no serious and professional court would ever take into account arguments ad hominem in cases dealing with abstract review of constitutionality of laws and constitutional amendments.

Abstract: This paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consistent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defamation cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consideration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Constitutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the preferential position of freedom of expression. However, the incorporation of the Sullivan doctrine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.

Abstract: This article investigates recent developments in Spain’s anti-terrorism regime, in particular the 2002 Law on Political Parties which introduced a non-criminal procedure to outlaw political parties. The 2002 Law was adopted as a response to the continuing existence of political violence associated with terrorist group ETA. It therefore constitutes part of the national counterterrorism regime. This article argues that the 2002 Law was a legislative novelty and that its immediate application to ban the political party Batasuna brought about substantial changes to the existing system of constitutional protection of political freedoms, as well as modifying the established standards of constitutional review of anti-terrorism legislation. Furthermore, the result of the November 2011 Spanish parliamentary elections has brought questions on the effectiveness of the 2002 Law and its possible future application to the fore of political and legal discourse. The article concludes that the outcome of the 2002 Law on Political Parties is rather disappointing and suggests that there are lessons other democracies can learn both for their counterterrorism policies and treatment of political parties.

Abstract: Egypt is going through the early phases of the throes of democratization. Right after the Revolution in 2011, which ended thirty years of repression and dictatorship under the regime of ex-president Hosni Mubarak, Egyptians found themselves with the serious challenge of electing a new president and building a new Egypt; in particular by drafting a new constitution capable of building lasting stability, maintaining equality, and offering opportunities for betterment. However, the newly drafted constitution has failed Egyptians’ ambitions regarding the establishment of democratic governance and preserving human rights, freedoms, and Egypt’s moderate secular nature.

Abstract: This article tends to give an insight on the historical and institutional development of the Constitutional Court of Albania, on the need of the society and the historical changes that led to its creation. It focuses especially on the role and competences of this Court on the protection of the rule of law, of the constitutional principles, on the balancing and division of powers, on the protection of the fundamental rights and freedoms of individuals. Its aim is to provide overall information on the functioning and standards it follows. It is based on the jurisprudence of this Court during the years and is enriched by its decisions on particular subjects and compares this Court to other similar ones in Eastern European countries. The article is mainly directed to scholars and legal writers whose aim is to compare the organization and functioning of the Constitutional Court of Albania to other similar courts.

In the judgment at hand the Court held that children (supposedly) born by a Ukrainian surrogate mother acquired Austrian citizenship by descent because their Austrian intentional parents were to be considered the legal parents of the children. Austrian substantive law regarding legal motherhood, namely § 137b ABGB, vesting legal motherhood with the women who gives birth, was (again) found to be inapplicable in a case of birth to a foreign surrogate mother. The Court did not examine the constitutionality of § 137b ABGB, but ruled that ‘in cases as the present one’ legal parenthood had to be determined according to the relevant foreign law.

The Austrian Constitutional Court ruled that a comprehensive prohibition of panhandling in public areas violates the equal protection clause and the freedom of expression. In contrast, there is no violation of the right to respect for private and family life and the right to practice every gainful activity. The Constitutional Court certainly makes an inspiring contribution to discussions concerning the scope of protection of several fundamental rights.

The Constitutional Court partly repealed a provision in the Austrian Code of Criminal Procedure denying a defendant to receive copies of – incriminating – audio or video recordings, as the provision infringes the principle of equality of arms. However, the defendant’s right to watch the video recordings or to make copies of the parts of the video transformed into photographs and added to the file does not compensate the suffered disadvantage.

The judgment deals with the issue of inadequate access to criminal investigation files in the course of the preliminary proceeding. The Constitutional Tribunal held that a relevant provision of Polish law is unconstitutional insofar as it allows for arbitrary exclusion of free access to investigation records. It is virtually impossible to confute prosecutor’s accusations without knowing the reasons for criminal charges. Therefore, the adequate access to case records is indispensible for effectively exercising the constitutional right of defence. From the perspective of the criminal procedure, the judgment rendered by the Constitutional Tribunal constitutes one of the most important decisions issued in the recent years.

The Hungarian Constitutional Court has issued a judgment on the ratification of the Fiscal Compact, ruling on the legal nature of international treaties that are closely connected to the European Union, but do not qualify as primary or secondary EU law. The Constitutional Court also clarified that its case law interpreting the previous Hungarian Constitution may under certain circumstances be taken into account when interpreting the new Fundamental Law.