The Constitutional-Judicial Control of the Legislative and Executive Powers in Central and Eastern European Countries

This project looked at the nature, contents, methods, means and legal and political effects of the influence that constitutional courts exercise upon the legislative and executive powers in the newly established democracies of Central and Eastern Europe. The basic hypothesis was that these courts work to provide a limitation of political power within the framework of the principal constitutional values and that they force the legislature and executive to exercise their powers and duties in strict accordance with the constitution. Following a study of the documentary sources, including primarily the relevant constitutional and statutory provisions and decisions of constitutional courts, Mr. Cvetkovski prepared a questionnaire on various aspects of the topics researched and sent it to the respective constitutional courts. A series of direct interviews with court officials in six of the ten countries then served to clarify a large number of questions relating to differences in procedures etc. that arose from the questionnaires. As a final stage, the findings were compared with those described in recent publications on constitutional control in general and in Central and Eastern Europe in particular. The study began by considering the constitutional and political environment of the constitutional courts' activities in controlling legislative and executive powers, which in all countries studied are based on the principles of the rule of law and the separation of powers. All courts are separate bodies with special status in terms of constitutional law and are independent of other political and judicial institutions. The range of matters within their jurisdiction is set by the constitution of the country in question but in all cases can be exercised only with the framework of procedural rules. This gives considerable significance to the question of who sets these rules and different countries have dealt with it in different ways. In some there is a special constitutional law with the same legal force as the constitution itself (Croatia), the majority of countries allow for regulation by an ordinary law, Macedonia gives the court the autonomy to create and change its own rules of procedure, while in Hungary the parliament fixes the rules on procedure at the suggestion of the constitutional court. The question of the appointment of constitutional judges was also considered and of the mechanisms for ensuring their impartiality and immunity. In the area of the courts' scope for providing normative control, considerable differences were found between the different countries. In some cases the courts' jurisdiction is limited to the normative acts of the respective parliaments, and there is generally no provision for challenging unconstitutional omissions by legislation and the executive. There are, however, some situations in which they may indirectly evaluate the constitutionality of legislative omissions, as when the constitution contains provision for a time limit on enacting legislation, when the parliament has made an omission in drafting a law which violates the constitutional provisions, or when a law grants favours to certain groups while excluding others, thereby violating the equal protection clause of the constitution. The control of constitutionality of normative acts can be either preventive or repressive, depending on whether it is implemented before or after the promulgation of the law or other enactment being challenged. In most countries in the region the constitutional courts provide only repressive control, although in Hungary and Poland the courts are competent to perform both preventive and repressive norm control, while in Romania the court's jurisdiction is limited to preventive norm control. Most countries are wary of vesting constitutional courts with preventive norm control because of the danger of their becoming too involved in the day-to-day political debate, but Mr. Cvetkovski points out certain advantages of such control. If combined with a short time limit it can provide early clarification of a constitutional issue, secondly it avoids the problems arising if a law that has been in force for some years is declared to be unconstitutional, and thirdly it may help preserve the prestige of the legislation. Its disadvantages include the difficulty of ascertaining the actual and potential consequences of a norm without the empirical experience of the administration and enforcement of the law, the desirability of a certain distance from the day-to-day arguments surrounding the political process of legislation, the possible effects of changing social and economic conditions, and the danger of placing obstacles in the way of rapid reactions to acute situations. In the case of repressive norm control, this can be either abstract or concrete. The former is initiated by the supreme state organs in order to protect abstract constitutional order and the latter is initiated by ordinary courts, administrative authorities or by individuals. Constitutional courts cannot directly oblige the legislature and executive to pass a new law and this remains a matter of legislative and executive political responsibility. In the case of Poland, the parliament even has the power to dismiss a constitutional court decision by a special majority of votes, which means that the last word lies with the legislature. As the current constitutions of Central and Eastern European countries are newly adopted and differ significantly from the previous ones, the courts' interpretative functions should ensure a degree of unification in the application of the constitution. Some countries (Bulgaria, Hungary, Poland, Slovakia and Russia) provide for the constitutional courts' decisions to have a binding role on the constitutions. While their decisions inevitably have an influence on the actions of public bodies, they do not set criteria for political behaviour, which depends rather on the overall political culture and traditions of the society. All constitutions except that of Belarus, provide for the courts to have jurisdiction over conflicts arising from the distribution of responsibilities between different organs and levels in the country, as well for impeachment procedures against the head of state, and for determining the constitutionality of political parties (except in Belarus, Hungary, Russia and Slovakia). All the constitutions studied guarantee individual rights and freedoms and most courts have jurisdiction over complaints of violation of these rights by the constitution. All courts also have some jurisdiction over international agreements and treaties, either directly (Belarus, Bulgaria and Hungary) before the treaty is ratified, or indirectly (Croatia, Czech Republic, Macedonia, Romania, Russia and Yugoslavia). In each country the question of who may initiate proceedings of norm control is of central importance and is usually regulated by the constitution itself. There are three main possibilities: statutory organs, normal courts and private individuals and the limitations on each of these is discussed in the report. Most courts are limited in their rights to institute ex officio a full-scale review of a point of law, and such rights as they do have rarely been used. In most countries courts' decisions do not have any binding force but must be approved by parliament or impose on parliament the obligation to bring the relevant law into conformity within a certain period. As a result, the courts' position is generally weaker than in other countries in Europe, with parliament remaining the supreme body. In the case of preventive norm control a finding of unconstitutionality may act to suspend the law and or to refer it back to the legislature, where in countries such as Romania it may even be overturned by a two-thirds majority. In repressive norm control a finding of unconstitutionality generally serves to take the relevant law out of legal force from the day of publication of the decision or from another date fixed by the court. If the law is annulled retrospectively this may or may not bring decisions of criminal courts under review, depending on the provisions laid down in the relevant constitution. In cases relating to conflicts of competencies the courts' decisions tend to be declaratory and so have a binding effect inter partes. In the case of a review of an individual act, decisions generally become effective primarily inter partes but is the individual act has been based on an unconstitutional generally binding normative act of the legislature or executive, the findings has quasi-legal effect as it automatically initiates special proceedings in which the law or other regulation is to be annulled or abrogated with effect erga omnes. This wards off further application of the law and thus further violations of individual constitutional rights, but also discourages further constitutional complaints against the same law. Thus the success of one individual's complaint extends to everyone else whose rights have equally been or might have been violated by the respective law. As the body whose act is repealed is obliged to adopt another act and in doing so is bound by the legal position of the constitutional court on the violation of constitutionally guaranteed freedoms and rights of the complainant, in this situation the decision of the constitutional court has the force of a precedent.

Liberal Nationalism: A Historical and Critical Analysis of Conceptions

At the end of the 20th century we live in a pluralist world in which national and ethnic identities play an appreciable role, sometimes provoking serious conflicts. Nationalist values seem to pose a serious challenge to liberal ones, particularly in the post-communist countries. Malinova asked whether liberalism must necessarily be contrasted with nationalism. Although nationalist issues has never been a major concern for liberal thinkers, in many countries they have had to take such issues into consideration and a form of 'liberalism nationalism' has its place in the history of political ideas. Some of the thinkers who tried to develop such an idea were liberals in the strict sense of the word and others were not, but all of them tried to elaborate a concept of nationalism that respected the rights of individuals and precluded discrimination on ethnic grounds. Malinova studied the history of the conceptualisation of nations and nationalism in the writings, of J.S. Mill, J.E.E. Acton, G. Mazzini, V. Soloviev, B. Chicherin, P. Struve, P. Miljoukov and T.G. Masaryk. Although it cannot be said that these theories form a coherent tradition, certain common elements of the different approaches can be identified. Malinova analysed the way that liberal nationalists interpreted the phenomenon of the nation and its rights in different historical contexts, reviewed the structure of their arguments and tried to evaluate this theoretical experience from the perspective of the contemporary debate on the problems of liberal nationalism and multiculturalism and recent debates on 'the national idea' in Russia.

Comparative Analysis of Russian and French Prosodies: Theoretical, Experimental and Applied Aspects"

Experience shows that in teaching the pronunciation of a foreign language, it is the native syllable stereotype that resists correction most strongly. This is because the syllable is the basic unit of the perception and production of speech, and syllabic production is highly automatic and to some degree determines the prosody of speech at all levels: accent, rhythm, phrase, etc. The results of psycho-physiological studies show that the human acoustic analyser is a typical contemplator organ and new acoustic qualities are perceived through their inclusion into the already existing system of values characteristic to the mother tongue. This results in the adaptation of the perception and so production of foreign speech to native patterns. The less conscious the perception of the unit and the more 'primitive' its status, the greater the degree of its auditory assimilation, and the syllable is certainly among the less controllable linguistic units. The group carried out a complex investigation of the French and Russian languages at the level of syllable realisation, focusing on the stressed syllable of both open and closed types. The useful acoustic characteristics of the French/Russian syllable pattern were determined through identifying a typical syllable pattern within the system of each of the two languages, comparing these patterns to establish their contrasting features, and observing and systematising deviations from the pattern typical of the French/Russian language teaching situation. The components of the syllable pattern shown to need particular attention in teaching French pronunciation to Russian native speakers were intensity, fundamental frequency, and duration. The group then developed a method of correction which combines the auditory and visual canals of sound signal perception and tested this method with groups of Russian students of different levels.

National Identity in Lithuania: Processes During the Period of Changes

Under the conditions of rapid and total change in the social, political, economic and legal environment in Lithuania, a re-orientation process is going on in all groups of society. In this process, not only younger but also middle-aged and old people become adherents to what Ms. Liubiniene calls the new, "post-materialist" values, strongly reinforced by powerful agents of socialisation originating in the West, like the media, advertising agencies and lifestyle-consumption models. As a result, the national identity of Lithuania and its inhabitants is being reconstructed. Ms. Liubiniene set out to examine the details of this evolving identity by conducting a survey of 1218 university staff and students. Her conclusions are set out in a 74 page manuscript, written in Lithuanian and available on disc. Change is most noticeable among the young. Indeed, time and time again, Ms. Liubiniene was to find that the age of 36 marks a natural watershed, with, for instance, the younger group valuing individualism highly and the older, collectivism. Ms. Liubiniene ventures to suggest that traditional values are deeply rooted amongst elderly people, women and people with an education in the humanities. Young people on the other hand, and especially those with a professional orientation towards business are more open to change and ready to adapt to new values. Turning to the evaluation of national symbols, Ms. Liubinie finds that those with an education in the humanities might be considered to be the most traditional, placing greater value on the symbols of nature, ethnic culture and religion. Folk songs and the crucifix are also in their top ten. Respondents with a technical education favour symbols of statehood and nature, and respondents with a business orientation assign greater value to the symbols of nature, history, sports and statehood. Ms. Liubinie concludes that the group of respondents most active and ready to adapt to new things is composed of young males of a business orientation. Generally the national identity of the young is weaker compared to that of the old. In the future, the combination of the evolution of values and the process of inter-generational replacement allows us to predict a weakening of the sense of national identity, or at least its transformation into something radically different to what it is today.

Changing Values in a Transitional Period

This project examined the change in values in the still unfinished transitional period in Serbia during the 1990s and compared it with Greece in the same period. During this period the social and political transition affected the ruling value system primarily through changes in the modes of the production and representation of reality. The most remarkable trait of this period in Serbia is the parallel and interweaving existence of different value systems. The very perception of reality has been blurred by the emergence of a very complex technical and ideological structure. Reality is presented by and through extensions and additions, the models of which are language and media. With the development of media technology and global communication and information systems, representation has become the only available reality. This enables the media to overtly and unlimitedly intervene in reality, to manage and change it without constraint and thus have a direct impact on values. The difference between public and private is abolished, so the media start promoting exclusive collective values. However, since the collective thus loses its counterpart, it itself needs to be redefined. This confusion of values make the possible results of their change uncertain. It will either open up a space for multiculturalism and social pluralism and thus completely replace the old systems of values, or result in an indefinite survival of different, often contradictory, value systems and conceptions of reality, which often lead to all forms of exclusivity and intolerance.