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.

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.

Civil Society and Political Parties in the Period of Transition

The major aim of Mr. Marada's project was to investigate the role of political parties on the one hand, and various institutional forms of civil society on the other, in the process of establishing mechanisms of political decision-making and policy-formation in Czechoslovakia and the Czech Republic, after November 1989. Mr. Marada wanted to examine what consequences the interplay and tensions between political parties and institutions of civil society had on the status and practical understanding of citizenship and civil society. At the beginning of his research Mr. Marada found that, while the sphere of the political was relatively clearly defined, the phenomenon of civil society required a conceptual clarification. He devoted a great deal of time to analysing the emergence, development, and disintegration of Civic Forum as the major agent of the regime change and subsequent political reforms. Alongside this analysis is a commentary on Czech society in general, drawing on established research to show how, as yet, a kind of civic incompetence reigns within the country, and how this situation has its roots in the belief, promoted by politicians themselves, that politics is an activity for experts only. The final outcome of his research took the form of a series of articles, in English, totalling 40 pages.

The Monumental Barrows of the Period 700-1100 AD at the Russian North-West

Nicholas Petrov. The Monumental Barrows of the Period 700-11 AD in the Russian North-West The research deals with the monumental barrows erected in the Russian north-west in the period of 700-1100 AD, which Russian archaeological literature has traditionally named sopka-barrows. These sopka-barrows were analysed as original sacral and funeral structures and considered in the context of cultural processes under way in that region at the time. The position occupied by the sopka-barrows in the culture of the people who erected them was reconstructed on the basis of a synthesis of various kinds of sources - archaeological, written, folklore. The high barrows are not in fact a determining type of the sites of the so-called "culture of the sopka-barrows" in modern literature, which focuses rather on settlements near to which sopka-barrows are absent. Recent excavations have revealed the presence of "surface" burial places (cremation located on the top of the barrow repeatedly rather than only once) in the majority of the sopka-barrows. The materials only provide evidence about the sacrificial nature of the graves in the "body" of the sopka-barrows. They thus offer an embodiment of one element of the widespread views about the dead man's path to the world of the dead (mountain) which is traced in folklore texts. Special attention was paid to the question of the disappearance of the tradition of erecting sopka-barrows and to the nature of their role in the culture of the region during the period 1000-1200 AD. The functioning of the sopka-barrows as funeral monuments in the second millennium AD is also traced on the inlet inhumatios found in them.

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.