09 August 2024
Wartime Constitutionalism and the Politics of Constitutional Review in Ukraine
On 18 July 2024, Ukraine’s Constitutional Court issued a decision concerning the rights of the accused in criminal proceedings under martial law. The extension of detention, the Court ruled, can only be issued based on a reasoned court decision—this applies even in times of war. In this blogpost, we examine how the war has influenced the ways in which various actors engage with constitutional complaints, before discussing the Constitutional Court's recent decision on Article 615.6 of the Criminal Procedure Code. We argue that this ruling exemplifies how the Constitutional Court can maintain the relevance and practical significance of its decision-making in wartime. Continue reading >>
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05 August 2024
Taming the Shrew
On May 30th, Iraq’s Court of Cassation (CC) issued an unprecedented decision invalidating a previous ruling by the country’s highest court in the land, the Federal Supreme Court (FSC). The CC’s judicial coup and self-aggrandizement rests on a flawed doctrinal foundation and runs counter to the judicial hierarchy set out by Iraq’s constitution. Continue reading >>
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05 February 2024
Heightening the Repressive Dynamic
The new French Immigration Act was promulgated and published on 26th January 2024, the day after the Conseil Constitutionnel decision which censored 35 provisions in one of its longest decisions to date. The Conseil chose to emphasize the Constitution’s procedural requirements, while largely avoiding substantive analysis of the Act’s drastic reduction of foreigners’ rights. Indeed, it asserted the constitutionality or remained silent on many provisions that undercut foreigner’s rights. The Act as promulgated thereby constitutes the most repressive text since 1945 and heightens a migration restrictive dynamic. Continue reading >>
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22 September 2022
Whispers of Change
Until recently, a debate on Mexico’s Supreme Court's power to scrutinize the constitutionality of constitutional provisions seemed largely distant. But for the first time in its history, the Supreme Court discussed a draft opinion of one of its members calling for the inapplicability of Article 19 of the Mexican Constitution, which provides the so-called mandatory preventive imprisonment as an automatic measure when investigating specific felonies. With the future of Mexican constitutionalism pending from this decision, the stakes are as high as they have ever been. Continue reading >>
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09 June 2022
How the Data Retention Legislation Led to a National Constitutional Crisis in Portugal
Some weeks ago, the Portuguese Constitutional Court (PCC) triggered a heated political debate on the need to amend the Constitution to grant criminal investigative authorities access to metadata on personal communications. Whilst disagreements between the political branches and the constitutional jurisdiction are common, this conflict is located at a wider critical juncture that intersects EU and national constitutional law, the CJEU, the domestic constitutional court, and ordinary courts. Continue reading >>
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25 October 2021
Constitutional Review in Sight?
On 18 October, the Venice Commission published its first ever opinion on the Netherlands dealing with the Childcare Allowance Scandal. It includes a list of rather detailed recommendations for the legislator, the executive and the judicial branch, also pointing at the prohibition of constitutional review which is one of the hallmarks of the Dutch Constitution. While its conclusions are not groundbreaking, the opinion of the Venice Commission must be welcomed for highlighting the crucial connection between individual justice, proportionality and fundamental rights. Continue reading >>03 December 2020
On Collision Course with the Material Core of the Slovak Constitution
Last week on Tuesday, the Constitutional Committee of the Slovak Parliament discussed the most extraordinary subject in a meeting attended by a most extraordinary guest. The Committee was reviewing a draft constitutional amendment on judicial reform that would, among other things, take away the power of the Constitutional Court to review constitutional amendments. At the meeting, the Minister of Justice and MPs discussed potential benefits and drawbacks of stripping the Court of the jurisdiction to review constitutional amendments, with the President of the Court seated next to them. The proposal represents the last escalation in the conflict about who has the final word on the contents of the Constitution. Continue reading >>18 June 2020
Who is ultra vires now?
For decades, and until a few weeks ago, Article 310 TFEU has been seen as prohibiting the EU from borrowing to finance its expenditure. The Commission’s Next Generation EU proposal reverses that interpretation and raises fundamental questions of EU law and its dynamic interpretation. With such a sudden change of heart, are the Member States under a duty to follow? What constitutional limits remain to their membership obligations? Continue reading >>26 March 2019
Lithuania Introduces Individual Constitutional Complaint
On 21 March 2019, the draft constitutional amendment introducing individual constitutional complaint to the Lithuanian legal system passed the second vote in the Parliament of Lithuania (Seimas) and was finally adopted. As of 1 September 2019, individuals (natural and legal persons) will have the right to directly apply to the Constitutional Court of Lithuania claiming that a law or other legal act of the Parliament, the President, or the Government are not in line with the Constitution and is breaching their rights. Continue reading >>01 March 2019