Vienna Journal on International Constitutional Law

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

Abstract: Over the last years resilience has become a key concept in understanding how rule-making choices are made in the context of risk prevention and disaster. This paper probes the relationship between constitutions and resilience in light of the way constitutions responded to the shock of the global financial crisis. What makes constitutions able to anticipate and resist external shocks, or bounce back after a disaster that affects core constitutional functions such as the balance of powers and the protection of fundamental rights? The ability of a constitution not only to withstand a severe shock, but also to enable the legal order whose ground rules it sets out to seek recovery within the constrains of these ground rules, lies at the heart of constitutional resilience. Analysing constitutional functions in terms of resilience could offer a new prism through which to look at national constitutions in an increasingly complex globalized environment. The recent crisis, through the interconnectedness of the multiple pressures it put on the legal orders it struck and the multiplicity of legal responses it demanded, allows exploring how resilience thinking can affect constitutional theory.

Abstract: This paper analyzes the Austrian Constitutional Court’s use of foreign precedents in the Court’s own case law. As the survey shows, the Austrian Constitutional Court is still reluctant to use foreign precedents, even though there has been a slight increase of cases dealing with foreign case law over the last decade. Among the various reasons for this attitude, the Court’s methodology deriving from legal positivism as well as the doctrine of self-containedness of Austrian constitutional law have been most important. Quite conversely, the same Court strongly engages in the ‘dialogue’ with European courts and has for a long time used to cite case law of both the ECtHR and the ECJ. Still, and with good reasons, the Court is far from becoming a radically cosmopolitan court.

Abstract: This paper analyzes the Supreme Court of Canada’s decision in R v NS, 2012 SCC 72 where the Court considered if a witness who wears a niqab for religious reasons can be required to remove it while testifying. The Court identified the two Charter rights engaged: the witness’ freedom of religion and the accused’s fair trial rights, including the right to make full answer and defense. This paper focuses on those aspects of the Supreme Court’s decision that relate to religious freedom, multiculturalism and reasonable accommodation. Analyzing the Court’s reasoning through the lens of critical multiculturalism, I consider the potential of the reasonable accommodation framework to forward minority rights. I suggest that had the Supreme Court applied an intersectional framework to adjudicating NS’s claim, it could have crafted a more contextual response based on her location along multiple axes of discrimination: gender, religion and racialised minority. This paper aims to contribute to a better understanding of mediating individual and group tensions, to move towards a more inclusive notion of citizenship than can foster a commitment to a shared multicultural future.

Abstract: Between the years of 2010 and 2014, the most significant change in the public law system took place in Hungary since the democratic transition of 1989. According to some, this has been a reform, whereas others regard it as destruction. During the transformation, of course, relations between all branches of power and their relationship with other factors of power had been a subject of debate. Yet – apart from the general question of how much the state policy established by 2014 complies with the democratic principles of the rule of law based on the division of power – from the viewpoint of power theory there had been three major issues that instigated fierce debates. They concerned the status of the president of the republic, the legitimacy of the constitution (Fundamental Law) and the relationship between the constitution-making power and the constitutional court. The present study aims to address the above questions.

Abstract: The article describes the reasons for the constitutional amendment to the Czech Constitution turning the traditional indirect elections of the President of the Republic into direct popular vote. It analyses the shortcomings of the constitutional amendment as well as of the Act on Presidential Elections. In the two parts that follow, it addresses the two main problems of the presidential elections: the registration of the candidates and the election campaign, and analyses the milestone decisions of the Supreme Administrative Court regarding these two questions. Finally, the author reflects the first year of presidency of Milos Zeman and his questionable attempts to broaden the scope of presidential competences by innovative interpretation of the Czech Constitution.

Since their introduction in 2006, admission test results for medical studies have revealed a continuous gender gap favouring male university applicants. Accompanying measures to tackle this gap have, however, failed to achieve the desired result. Thus, the Medical University of Vienna, a public university, decided to score the admission test for the academic year 2012/2013 split by gender – with the effect that members of the group which in average achieved lower results (in this case females) needed lower scores to achieve a certain ranking. In a recent judgment ruling on the appeal of a male university applicant, the Constitutional Court concluded that gender-specific scoring in the case at hand, as it was only a temporary measure and other measures taken to address the gender gap have been ineffective, was an adequate, necessary and proportionate measure to achieve the legitimate aim of eliminating structural discrimination of female university applicants.

The Ranking Criteria Ordinance awards additional points to female physicians applying for a contract with the social health insurance fund in the field of gynaecology and obstetrics and in that manner directly discriminates against men. Upon the request of the Salzburg Regional Court to repeal the corresponding provisions, the Constitutional Court held that the unequal treatment of male and female applicants for a contract with the social health insurance fund was justified by need to meet the – for objective reasons – high demand for female contract gynaecologists by the female patients. Still, according to the Constitutional Court the unequal treatment is only justified as long as there is a significant shortage of female contract gynaecologists in relation to the demand.

The Constitutional Court dismisses an application of the Austrian Court of Audit claiming the latter’s entitlement to access and inspect lists of all internal and external e-mails sent and received during 2008 and 2014 by the domain of the Federal Ministry of Traffic, Innovation and Technology, for being extensive and at the same time not substantiated. No admission of the application considering direct access to nominated e-mails on the grounds of the requested lists due to lack of divergence of opinion in the meaning of Art 126b Federal Constitutional Law.

The Constitutional Act on the Rights of National Minorities states that ‘Equality in the official use of a minority language and script shall be exercised in the territory of a local selfgovernment unit in which the members of a national minority compose a minimum of one third of the population.’ Upon introducing the bilingualism (Croatian-Serbian) in Vukovar, a referendum was requested to raise the threshold of one third to at least a half. The Constitutional Court, however, rejected the referendum initiative, deeming the referendum question unconstitutional because it is contrary to the fundamentals of the Constitution of the Republic of Croatia.

The Constitutional Court quashed parts of a provision of the new Civil Code given that the freedom of speech would be violated if criticizing public figures to a wide extent was only allowed after verifying the existence of further public interest in addition to the constant social interest related to debating public affairs.