Vienna Journal on International Constitutional Law

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

Abstract: Adam Smith, a leading thinker of the British Enlightenment, is universally known as the author of the ‘Wealth of Nations’ and an economic theorist. He is less well known as the author of ‘The Theory of Moral Sentiments’ and an ethicist. And known almost not at all for his ‘Lectures on Jurisprudence’ or as a legal theorist. This essay looks at Smith’s thought through the lens of his Lectures on Jurisprudence. It highlights the almost paradoxical positions Smith had on self-interest, markets, government, and economic expansion. Obscured by his reputation and these paradoxes are his views on justice, equality, and power. This essay concludes that Smith’s ‘justice’ is deficient and no substitute for the ‘bread nexus’ of the moral economy.

Abstract: The re-adoption of trial by jury in Russia in 1993 was heralded as a significant break with the discredited legal system of a crumbling regime. However, in less than twenty years the jury in Russian criminal trials has been significantly undermined; that process is particularly evident in the field of counterterrorism. This article examines the history of trial by jury in Russia, the constitutional and legislative provisions adopted in the 1990s, and the rolling back of these provisions in the first decade of the twenty-first century. Given the adoption of jury trial in a number of democracies in the early 1990s the underlying causes of the rapid Russian retrenchment are of significance beyond the Russian Federation. The jury was not a legal transplant in Russia and it was hoped that conditions were fertile for the jury to flourish. This has not proven to be the case: Russian jury trial may have a long history but it has shallow roots.

Abstract: 2014 marks the 50th anniversary of the US Supreme Court decisions in Times v Sullivan and 40th anniversary of Gertz v Welch. These two decisions by the US Supreme Court had an important legal impact in the United States on federal law pertaining to libel, specifically proving actual malice and who is defined as a public figure or public official. This article analyzes both Supreme Court decisions within the context of present day online social media libel controversies. It also analyzes three recent federal court rulings where judges had to issue decisions based on Sullivan and Gertz’s actual malice and public figure legal principles. The article concludes that both Sullivan and Gertz are still relevant to how other federal, American courts decide issues related to defamation published in social media.

Abstract: CoCoA Summer School, which has been initially run for four seasons (2006-2009) by the Faculty of Law of the University of Trento under the European Marie Curie Programme, has been offered again in 2014 furthering the previous profitable experiences and keeping the same main features and purposes like providing an opportunity for senior (guest speakers) and junior scholars (tutors), legal advisors to Constitutional Court judges as well as younger researchers, post-doc students and PhD candidates (participants) to meet, interact, train and being trained and plan future research in comparative constitutional adjudication. The Summer School aims at comparing judicial decisions from national and European (ECtHR, ECJ) jurisdictions on selected constitutional issues. This year the topic was ‘Constitutional Adjudication in Education Law: A Comparative Approach within the Council of Europe’.

A reform of the Austrian Federal Constitution intends to close a gap in individual legal protection in the domestic judicial review system. Starting with 1 January 2015 a new remedy will provide parties of civil and criminal proceedings with the possibility of filing a complaint with the Constitutional Court challenging the constitutionality of an applied statute or the legality of an applied administrative ordinance. The application of a party for judicial review is only admissible after a ruling by the civil or criminal trial court in connection with an appeal against the court’s ruling. Planned amendments to procedural laws intend to exclude various types of proceedings from the new remedy. Both these aspects are seen critically in terms of the effectiveness of the new remedy and the individual legal protection.

The judgment with which the Austrian Constitutional Court repealed the provisions implementing the system of data retention in the Austrian legal system was the final act of the proceedings in the course of which the Court of Justice of the European Union declared the Directive 2006/24/EC invalid. The Constitutional Court found that the provisions in question violated the right to data protection according to § 1 of the Austrian Data Protection Act. The reasoning of the Judgment not only indicates how the Court understands the right to data protection but also gives a rare example of the process of balancing. For the proponents of a reintroduction of the data retention the judgment bears some important information about how a constitutionally permitted system could look like.

The European Court of Justice has held that the Data Retention Directive entails a wideranging and particularly serious interference with Art 7 and 8 CFREU, without that interference being limited to what is strictly necessary to achieve the objectives of the Directive. While the incoming European Commission plans to explore options for future rules on the retention of electronic communications data at EU level, questions arise as to the judgment’s legal consequences for the Member States.

In a recent preliminary ruling the European Court of Justice (ECJ) declared the EU Directive 2006/24/EC incoherent with several provisions of the Charter of Fundamental Rights of the European Union (CFREU). This ruling resulted inter alia from a preliminary question filed by the Austrian Constitutional Court according to Article 267 of the Treaty on the Functioning of the European Union (TFEU). The underlying procedure regarded several applications claiming the unconstitutionality of the provisions, which the Court – to a certain degree surprisingly – considered admissible.

The Constitutional Court has declared the general provisions concerning the powers of municipalities to regulate tax rates of land tax and tax on construction in Act No 582/2004 of the Coll to be constitutional. The Court in its judgment provided general criteria for assessing any tax legislation in the future and recognised the competence of municipalities to relatively freely regulate local taxes. However, specific regulations of four municipalities were delegated for further adjudication to a senate of the Court.