Vienna Journal on International Constitutional Law

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

Abstract: The Chinese politico-legal system, including the human rights component thereof, has long been the subject of intense academic and policy interest, despite its increasingly ‘soft’ features. A multiyear economic expansion and active participation in globalization processes have been accompanied by some loosening of governmental control mechanisms but, by Western standards, this has been a distinctly slow journey. The acquisition of power by this rapidly rising international player has also given rise to concerns about the broader implications of a combination of substantial State capabilities and an ambivalent posture towards human rights, as widely conceived. In addition to traditional perspectives, the issue has been addressed by resorting to social science-type methodological tools and employing them in order to gain a better understanding of the workings of a rule-based regime that straddles domestic and global territory. Considerable progress has been made, yet the task has not been approached exhaustively and accumulation of knowledge has been an intermittent affair. An elaborate and structured literature review is undertaken here for the purpose of identifying gaps on this specific front and concrete strategies to narrow them materially.

Abstract: Institutions such as the US Supreme Court and the European Court of Justice in due time have developed a status of supremacy through judicial activism. The main target of the article is to identify the judicial activism exercised by these Courts and to reason its need in the legal order. In the first part the US Supreme Court and the European Court of Justice are placed in the overall polity that they belong to and the development of their status and their characteristics are analyzed. The major concern of the first part is to examine how those declared their supremacy and focus on major cases and their reasoning. In the second part the extent of the judicial supremacy in each legal order is discussed and its effects in the decision making process are examined. The assumption that judicial activism is acceptable only if it expresses consensus in the legal order is tested and it is argued that up to an extent, Judicial Activism does not distort the political agenda when it expresses the consensus of the legal system. Finally, it is argued that when such activism exceeds the boundaries of the consensus, the other actors in the legal system would eventually react and would limit such activism.

Abstract: According to the prevailing opinion, ECtHR judgments do not bind the members of the Council of Europe beyond the individual case. The aim of this paper is to present arguments against this prevailing opinion and make a case for a legally binding effect of ECtHR judgments beyond the individual case within the Austrian legal order. We demonstrate that such an obligation follows from the system and telos of the ECHR and the constitutional principles of legal certainty and equality before the law and not only arises when a systematic problem in Austria is concerned, but also where well-established case-law of the Court exists. Moreover, we approach the question from an EU law perspective and argue in favour of a legally binding, albeit limited, effect of the Court’s judgments by virtue of EU law.

The Austrian Execution of Sentences Act provides electronically monitored house arrest as a form of criminal sentencing. Due to a legislative amendement in 2013, certain sexual offenders are required to comply with stricter legal conditions compared to other (sexual) offenders to be granted electronic monitoring. However, the Constitutional Court is of the opinion that this legal distinction does not violate the principle of equal treatment.

The Constitutional Court states that it does not have any constitutional reservations concerning the ‘Treaty on Stability, Coordination and Governance in the Economic and Monetary Union’ (European Fiscal Compact). The Fiscal Compact neither obliges the respective federal minister to act under a kind of authority power nor does it transfer sovereign rights to the European Union in an unconstitutional way.

In a recent decision, the Austrian Constitutional Court held that excluding women in stable same-sex relationships from access to sperm donation violates the right to respect of private and family life as protected by the European Convention of Human Rights. An undifferentiated limitation of all forms of medically assisted reproduction to heterosexual couples must be justified by ‘particularly convincing and weighty reasons’, as required by ECtHR case law, which did not exist in the present case. Whereas this judgment is remarkable in condemning discrimination against a lesbian couple – for once without a nudge by Strasbourg – its reach is rather limited; importantly, it does not challenge a wide range of problematic biologist assumptions underlying the Austrian Reproductive Medicine Act of 1992.

The present decision puts an end to the Hungarian system of transfer of cases that began on 1 January 2012 and evoked especially sharp international criticism. For more on this topic, see: Tímea Drinóczi, ‘A tisztességes eljáráshoz való jog az alkotmányos párbeszéd tükrében’ [2014] 1st volume Jura 22. The Constitutional Court clarifies that the system of transfer of cases in this form is not allowed, as it violates many elements of the right to fair trial based on the Fundamental Law of Hungary and the European Convention on Human Rights.

The Georgian Code of Administrative Offences imposed a more severe sanction on Georgian nationals (citizens) than on non-nationals for evading the examination establishing the influence of alcohol; particularly, while non-nationals were charged by monetary fine, Georgian nationals were deprived of the driving license for three years. This, according to the Court, led to the unjustified different treatment that constituted discrimination.