Vienna Journal on International Constitutional Law

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

Abstract: This paper analyzes the Venezuelan denunciation of the American Convention on Human Rights from a constitutional and an international approach, taking into account the Venezuelan Constitution, the Inter-American Convention on Human Rights and the interpretative rules of the Vienna Convention on the Law of Treaties (VCLT), to demonstrate that, even with the existence of article 78 of the American Convention, the denunciation is contrary to the Inter-American System as a system of two levels and therefore it shall be considered unlawful and invalid.

Abstract: Can a constitutional norm be unconstitutional? This idea seems, at first sight as a self-contradiction. Unconstitutionality is commonly referred to those ordinary laws, inferior to the constitution, which violate it. Constitutional norms, in contrast, carry an equal normative status as the constitution itself and other constitutional provisions. The question of unconstitutional constitutional norms recently arose in the Czech Republic. On 10 September 2009, the Czech Constitutional Court declared Constitutional Act no 195/2009 Coll, on Shortening the Fifth Term of Office of the Chamber of Deputies to be unconstitutional. The Czech Constitutional Court held that the constitutional act was an individual, specific decision and retroactive, thus violating the unamendability provision (Art 9(2)) in the Constitution, which prohibits amendments to the essential requirement for a democratic state governed by the rule of law. This article analyses the Czech Constitutional Court’s decision in a broader comparative and theoretical perspective and focuses, mainly, on four issues: first, the Czech Constitutional Court’s authority to substantively review constitutional norms; second, the appropriate standard of review when exercising judicial review of constitutional norms; third, the ‘individual, specific’ character of the constitutional act; and fourth, its alleged retroactive application. The article claims that while the Czech Constitutional Court was generally correct in claiming an authority to substantively review even constitutional norms, this was not the appropriate case in which to annul a constitutional act.

Abstract: The New Zealand Food Bill is being passed amidst stern criticism of its content and the influence of multi-national corporations and the Codex Alimentarius Commission, whose food-safety standards motivated the bill. These concerns illustrate the large democratic and legitimisation deficits in global governance. One response to these criticisms and concerns is global administrative law, which focuses on promoting administrative law tools to enhance accountability. However, an examination of the Food Bill reinforces two main critiques of global administrative law: that it excludes addressing substance of international law and brackets democracy. I argue the limited GAL approach cannot be justified and the significant gaps in its approach require that it engage with democracy. I analyse the possibilities of global administrative law to engage with (to acknowledge and adopt) two theories of global democracy – deliberative and cosmopolitan – using the Food Bill as a case study.

Abstract: Since the elections of 2010, the right-wing coalition has a supermajority in the Hungarian Parliament, and is able to amend the Constitution without any further ado. The Constitution became a part of the political tool-kit which may and is amended as the government needs it to be amended. Under these circumstances, the Constitutional Court cannot be a vigorous guardian of constitutional values, and the Parliament did everything in order to housetrain the formerly widely acknowledged Constitutional Court: cut back its powers filled the bench with rather loyal justices and blocked the critical decisions. The present article is aimed to describe and to critically analyze these strategies in a national and European context.

The Constitutional Court repealed a decision of the Asylum Court, because the lack of conducting an oral hearing constituted an infringement of Art 47 para 2 CFREU since the requirements of § 41 para 7 AsylG were evidently not met. Once more the Court showed that rights guaranteed by the CFREU enjoy protection as ‘constitutionally guaranteed rights’ according to Art 144 and 144a B-VG.

Based upon a violation of Art 47 of the Charter of Fundamental Rights of the European Union (hereinafter: the Charter) the Supreme Administrative Court (Verwaltungsgerichtshof) repealed a decision of the Independent Tax Panel which had denied the applicant an oral hearing. It thereby ruled for the first time that by the law of the European Union the Supreme Administrative Court itself is obligated to implement the Charter, even though the Austrian Constitutional Court in an earlier judgment had qualified the rights of the Charter to be equivalent to constitutionally guaranteed rights.

In this case the Supreme Court examined the scope of application of the Charter of Fundamental Rights of the European Union (hereinafter: CFREU) and pointed out that Art 47 CFREU is accessory and can only be relied upon in relation to another substantive right protected by the European Union Law. It dismissed the argument of an electricity company who claimed a violation of Art 47 CFREU because the effect of a repealing decision of the Austrian Constitutional Court had not been extended to its case, although it had already filed an extrajudicial remedy before the date of the repeal. The Supreme Court further declared a decision of the ECJ concerning the declaration of invalidity of a Union act not transferrable to the present case

The Lithuanian Constitutional Court assessed the eligibility ban for those removed under impeachment procedure, provided in the Law on Elections to the Seimas (Lithuanian Parliament) to be consistent with the Constitution, despite a contrary judgment of the ECtHR.

Due to the mismatch of municipality names in Article 5 of the Law on Personal Identification Number and the official names of the municipalities as adopted in the Law on Territorial Organization of the Republika Srpska, the Constitutional Court of Bosnia and Herzegovina considered the above mentioned Article as unconstitutional and against the rule of law. Although the Court required the state-level Parliamentary Assembly to harmonize the law within six months, the Bosnian authorities did not find a constitutional solution on time. The Constitutional Court therefore ordered the annulment of the Law on Personal Identification Number in February 2013 which led to an unsatisfactory legal situation as babies born since February 2013 could not receive personal identification numbers and therefore no birth certificates, health care cards or passports could be issued. As a result of massive civil protests in November 2013 finally a new law was adopted.