1. Constitutional review The Role of Constitutional Courts in the Human Rights Protection

2. The Connection between Human Rights and Constitutional Review It is only one of the possible systems of human rights protection Connection between constitutional entrenchment of fundamental rights and constitutional review

3. The origins of constitutional review Federalist, 78: If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

4. The origins of constitutional review Formalized in 1803, Marbury v. Madison The main aspects of Marbury decision: „Bottom up“ approach of the SC No explicit basis in Constitution Emphasis on the principles of constitutionalism (agent x people)

5. The European response 1920´s – Austria, Czechoslovakia, 1940´s – Germany Later – Italy, Spain, Portugal, Belgium 1990´s – CEE (Central and Eastern Europe) No or weak constitutional review (UK, The Netherlands, Nordic Countries)

6. Models of constitutional review Decentralized (US) Centralized (Continental) Ex ante (French) Mixed systems

7. Criticism of constitutional review Legitimacy Effectivity Do judges become politicians?

8. A few notes on „balancing“ A prominent method of constitutional review Various tests – for example the Canadian „Oakes test“: The objective of human rights limitation must be related to concerns which are pressing and substantial in a free and democratic society, and second it must be shown that the means chosen are reasonable and demonstrably justified. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance.

9. The „Core“ of constitution The concept of core – an underogable part of constitution Constitutional review v. Legislative override What does it add to the problems we mentioned?

10. Reflecting the criticism It is worth to have constitutional review? (Does it depend on the particular society, what is a „well ordered democratic“ society? The position of transitional societies). It is worth to entrench human rights in constitution (effectivity, legitimacy)? Pros and cons - discuss

11. The methodology of review If a limitation of right occurs, the courts usually employ a form of „proportionality test“ Exceptions: Absolute rights, Social Rights, Extent of the criminal punishment,

12. Proportionality test The measures must pursue an important and legitimate aim, they must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. (aim) In addition, the means should impair the right in question as little as possible (necessity) There must be a proportionality between the effects of the limiting measure and the objective -- the more severe the deleterious effects of a measure, the more important the objective must be. (proportionality in the narrow sense)

13. Examples Airplanes in Germany Freedom of speech laws Expropriation Religious freedom Freedom of assembly