¹ Barak, Aharon, Purposive Interpretation in Law 370 (2005)Google Scholar.

² See, e.g., Sajó, András, Limiting Government: an Introduction to Constitutionalism 39 et seq. (1999)Google Scholar.

³ The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms provided for the establishment of the European Court of Human Rights. The 1951 Treaty of Paris and the 1957 Treaty of Rome provided for establishment of what was to become the Court of Justice of the European Communities (in 1967) and the Court of Justice of the European Union (in 2009).

⁴ As recently observed by Howard, A.E. Dick, A Traveler from an Antique Land: The Modern Renaissance of Comparative Constitutionalism, 50 Va. J. Int'l L. 3, 21 (2009)Google Scholar: “By the twent-first century, judicial review has become, if not universal, certainly widespread. Indeed, a majority of today's constitutions contain explicit provisions for some form of judicial review.”

⁵ See, e.g., Verfassungsgerichtsbarkeit in Westeuropa (Starck, C. & Weber, A. eds., 1986)Google Scholar; Cappelletti, Mauro, The Judicial Process in Comparative Perspective (1989)Google Scholar; Brewer-Carias, A.R., Judicial Review in Comparative Law (1989)Google Scholar; Rousseau, Dominique, La Justice Constitutionnelle en Europe (1992)Google Scholar; Schwartz, Herman, The Struggle for Constitutional Justice in Post-Communist Europe (2000)Google Scholar; Ginsburg, Tom, Judicial Review in new Democracies (2003)CrossRefGoogle Scholar.

⁶ For Germany, see Rozek, J., in Bundesverfassungsgerichtsgesetz Kommentar § 76, note 21 (2001)Google Scholar. For Austria, see Walter, Robert, Verfassung und Gerichtsbarkeit 17, 127 (1960)Google Scholar; Peyrou-Pistoluley, S., La Cour Constitutionnelle Et Le Contrôle De La Constitutionnalité Des Lois En Autriche 173 et seq. (1993)Google Scholar. For Poland, see W. Sokolewicz, in 3 Konstytucja Rzeczypospolitej Polskiej. Komentarz art. 235, note 39 (L. Garlicki ed., 2005). For Spain, see Segado, F.F., El Systema Constitucional Espagnol 88 (1992)Google Scholar.

⁷ See, e.g., 94 Entscheidungen Des Bundesverfassungsgericht [Bverfge] [Decisions of the Federal Constitutional Court] 12 (33) (1996) (Ger.) (confirming the procedural regularity of a constitutional amendment).

⁸ As early as 1952, the Constitutional Court of Austria recognized its jurisdiction to review the procedural regularity of constitutional amendments. See Peyrou-Pistoluley, supra note 6, at 176; Pfersmann, Otto, La révision constitutionnelle en Autriche et en Allemagne fédérale: théorie, pratique, limites, in La Révision de la Constitution 7, 41 (1993)Google Scholar. While the 1952 judgment confirmed the regularity of the contested procedure, some of the later decisions went in the opposite direction. See Pfersmann, La révision constitutionelle, supra, at 38. The most recent example of procedural invalidity can be found in the judgment of October 11, 2001 (G 12/00-17). See Pfersmann, Otto, Autriche, in 17 Annuaire Internationale de Justice Constitutionnelle 447 (2001)Google Scholar.

In Turkey, the Constitutional Court declared a politically important constitutional amendment procedurally unconstitutional in 1970. Its decision was based on a quite extensive interpretation of the requirement of a qualified majority in a parliamentary vote. See Hirsch, E.E., Verfassungswidrige Verfassungsänderung, 1 Archiv des Öffentlichen Rechts 53 (1973)Google Scholar. In later years, there were also several cases in which the Constitutional Court examined the procedural regularity of constitutional amendments and some cases in which that examination resulted in the invalidation of a challenged amendment. See Gözler, Kemal, Judicial Review of Constitutional Amendments: a Comparative Study 40–41 (2008)Google Scholar.

In 2010, the Constitutional Court of Ukraine delivered another quite spectacular example of the procedural review. Under the 1996 Constitution of Ukraine, the Constitutional Court reviews, ex ante, every proposed amendment submitted to the parliament. It should be noted that the Constitution establishes several limitations in respect of constitutional amendments. From a substantive perspective, it is prohibited to adopt amendments that “foresee the abolition or restriction of human and citizens' rights and freedoms, or if they are oriented toward a liquidation of the independence or violation of territorial integrity of Ukraine.” See 1996 Конституцгя України [Constitution] art. 157 § 1 (Ukr.). From a procedural perspective, an amendment must be adopted by a majority of no less than two-thirds of the constitutional composition of the Ukrainian parliament (art. 155) and in the case of certain constitutional provisions must subsequently be confirmed by national referendum (art. 156). If a proposed amendment has not been adopted by parliament, it can be reintroduced no earlier than one year from the day of its rejection (art. 158 § 1). Finally, article 159 provides that: “A draft law on introducing amendments … is considered by the [parliament] upon the availability….” The parliament may decide on the amendment only after the Constitutional Court has confirmed its admissibility in an opinion “on the conformity of the draft law with the requirements of Articles 157 and 158 of this Constitution.” This means that the parliament may adopt a constitutional amendment only after the Constitutional Court has confirmed its admissibility. See, for example, the Constitutional Court's decision of April 1, 2010 (1-12/2010) in which it confirmed the admissibility of an amendment concerning the immunities of Ukraine's highest state officials.

In 2004, the Ukrainian parliament considered an important constitutional amendment that aimed to make substantial changes in the organization of the executive branch. The draft of the amendment was duly submitted to the parliament, and the Constitutional Court confirmed its admissibility (in accordance with the requirements laid down in articles 157 and 158 of the Constitution). However, in the course of the parliamentary debates, the original text of the amendment was substantially modified, and the final version was not resubmitted to the Court. Some years later, the procedural validity of the 2004 amendment was challenged before the Constitutional Court. In its judgment of September 30, 2010 (1-45/2010), the Court decided that the amendment had been adopted in violation of article 159 of the Constitution and invalidated the amendment as of the date of its judgment.

⁹ Article 112(1) of the Constitution of the Kingdom of Norway of May 17, 1814 (which is still in force and unamended) provides: “If experience shows that any part of this Constitution of the Kingdom of Norway ought to be amended…. Such amendment must never, however, contradict the principles embodied in this Constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the Constitution, and such amendment requires that two-thirds of the Parliament [Storting] agree thereto.”

¹⁰ See 1958 Const. art. 89 § 4 (Fr.); 1946 Const. art. 95 (Fr.); 1884 Constitutional Act on Partial Revision of Constitutional Laws, art. 2 (Fr.). For a more detailed discussion, see Denis Baranger's contribution in this issue.

¹¹ See, e.g., 1975 Syntagma [Syn.] [Constitution] art. 110 § 1 (Greece); 1976 Constituição da República Portuguesa [Constitution] art. 288 (Port.); Constitution of the Republic of Turkey art. 1 §§ 1-4.

¹² Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [BASIC LAW], May 23, 1949, BGBl. I, art. 79 § 3.

¹³ For the most recent example, see the judgment of the German Federal Constitutional Court on the Lisbon Treaty: Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 30, 2009, 2 BvE 2/08, in particular para. 226 et seq. See also the following judgments of the Court: 30 BVerFge 1 (24) (1970); 34 BVerFge 9 (19) (1972); 84 BVerFge 90 (120) (1991); 94 BVerFge 49 (1996); 109 BVerFge 279 (2004). In all these judgments, the Court upheld constitutional amendments under review. In regard to France, see Denis Baranger's contribution in this issue.

¹⁴ Gözler, supra note 8, at 45-49.

¹⁵ Judgment of June 5, 2008 (E 2008/16; K 2008/116). The Court declared the amendment to be incompatible with the “secularism clause” that constitutes one of the “unamendable constitutional provisions.” See 1982 Constitution of the Republic of Turkey, art. 2 in conjunction with art. 4.

¹⁶ Schmitt, Carl, Verfassungslehre 103 (1928)Google Scholar (translated by Lech Garlicki): “The limits of the competence to amend the constitution arise from a correct understanding of the notion of constitutional amendment. The competence to amend the constitution which is established by the text of the constitution, means that a particular constitutional provision or some provisions may be replaced by a [new] constitutional regulation, only—however—assuming that the identity and continuity of the constitution as a whole remains maintained.” See also Mortati, Constantino, La Costituzione in Senso Materiale 204 et seq. (1940)Google Scholar.

¹⁷ For a presentation of the doctrine and case law of constitutional courts, see La hiérarchie des normes constitutionnelles et sa fonction dans la protection des droits fondamentaux, in VI Annuaire International de Justice Constitutionnelle (1990)Google Scholar; Révision de la constitution et justice constitutionnelle, in X Annuaire International de Justice Constitutionnelle (1994)Google Scholar.

¹⁸ 37 BVerfGE 271 (1974) (Solange I); 73 BVerfGE 339 (1986) (Solange II); 99 BVerfGE 155 (1993) (Maastricht Treaty); BVerfG, June 30, 2009, 2 BvE 2/08 (Lisbon Treaty).

¹⁹ Since the ratification of treaties expanding the powers of the European Union in Germany was accompanied by the adoption of constitutional amendments, the Court had to take a position not only on the constitutionality of the new treaties but also on the compatibility of the new constitutional amendments with article 79 § 3 of the German Basic Law. The concept of the “identity of the constitutional order” was thus developed in respect to both aspects of review.

²⁰ See, e.g., Grimm, Dieter, Defending Sovereign Statehood Against Transforming the European Union into a State, 5 European Constitutional Law Review 353, 357 (2009)CrossRefGoogle Scholar.

²¹ Donnarumma, Maria Rosaria, Intégration européenne et sauvegarde de l'identité nationale dans la jurisprudence de la Cour de justice et des Cours constitutionnelles, 84 Revue Française de droit Constitutionnel 719 (2010)CrossRefGoogle Scholar.

²² While the 1831 Constitution of Belgium has been modified several times, the amendments adopted in the 1970's and 1990's were of a special nature as they replaced the unitary structure of government with a regional structure and, later, a federal structure based on the ethnic make-up of the population.

²³ At the end of 2010, the 1949 German Basic Law had been amended on 58 occasions, the 1958 Constitution of France on 22 occasions, and the 1947 Constitution of Italy on 35 occasions. The text of the 1920 Constitution of Austria has been modified more than 60 times, and numerous separate constitutional laws have also been adopted.

²⁴ See Arato, Andrew & Miklosi, Zoltan, Constitution Making and Transitional Politics in Hungary, in Framing the State in Times of Transition: Case Studies in Constitution Making 350 (Miller, Laurel E. & Aucoin, Louis eds., 2010)Google Scholar; Lech Garlicki & Zofia A. Garlicka, Constitution Making, Peace Building and National Reconciliation: The Experience of Poland, in Framing the State, supra, at 391.

²⁵ An interesting reference to the concept of the “basic identity of the constitution” was developed by Stefan Rozmaryn, an eminent representative of the Polish communist doctrine of constitutional law. Observing that the 1952 Constitution of Poland did not contain any “unamendable provisions,” Rozmaryn stated: “It would be a pure nonsense to accept a possibility that the Constitution that was born out of the people's revolution … and whose aim is to secure the leading position of the working masses as well as the construction of socialism, could permit to deviate ‘legally’ from these fundamental principles.” According to Rozmaryn, the constitutional principles of the organization of state and society can therefore only be amended in one direction: “toward socialism and, subsequently, communism.” See Rozmaryn, Stefan, Konstytucja Jako Ustawa Zasadnicza Prl 275–76 (1967)Google Scholar (quotes translated by Lech Garlicki). It is an irony of history that in 1989 the 1952 Constitution was amended in exactly the opposite direction.

²⁶ See, e.g., Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBl. I, art. 16a (right of asylum). For amendments introduced in several countries in conjunction with the subsequent stages of the European integration, see, for example, GG, art. 23 (Ger.); 1958 Const. arts. 88-4, 88-5, 88-6 (Fr.); Bundes-Verfassungs-Gesetz [B-VG] [Constitution] BGBl No. 1/1930, arts. 23c to 23f (Austria).

²⁷ Consolidated Version of the Treaty on European Union, art. 6(3), Mar. 3, 2010, 2010 O.J. (C 83) 1 [hereinafter TEU]. The preamble to the EU Charter of Fundamental Rights refers to “the constitutional traditions and international obligations common to the Member States.” Charter of Fundamental Rights of the European Union, preamble, Dec. 7, 2000, 2000 O.J. (C 364) 1.

²⁸ TEU, art. 2.

²⁹ The special nature of the European Convention is due to the fact that it not only contains substantive regulations on individual rights and liberties but also provides for its own procedural mechanism based on individual actions lodged with a separate and independent international court, namely the European Court of Human Rights. Other regional systems of human rights protection, such as the 1969 Inter-American Convention on Human Rights and the 1981 African Charter of Human and Peoples' Rights, have adopted similar solutions. The 1966 UN Covenant on Civil and Political Rights also established its own procedural mechanism, in which the Human Rights Committee plays a central role as a quasi-judicial body.

All these instruments, which take the form of international treaties, form a branch of the international law known as international human rights law. In Europe, they are similar to the so-called supranational law (of the European Union) that is situated between traditional concepts of international and constitutional law. We do not intend here to provide a detailed discussion of EU law and its relationship to the national constitutions of the 27 member states. This is a subject for another paper.

³⁰ It should be recalled that the Council of Europe, with its 47 member states, includes practically all European countries, the only exceptions being Belarus and Vatican City.

³¹ This trend already surfaced in the 1970's, particularly in respect of the 1978 Constitution of Spain and—to a lesser extent—in respect of the 1975 Constitution of Greece and the 1976 Constitution of Portugal. It gained momentum after the fall of communism. Almost all “new democracies” relied heavily on the language of the Convention.

³² The 1966 UN Covenant on Civil and Political Rights and the 1989 Convention on the Rights of the Child are very prominent in this regard. A more detailed application of such universal principles is seen, for example, in the 1926 Convention to Repress the Slave Trade and Slavery, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

³³ See, e.g., Stec and Others v. The United Kingdom, App. No. 65731/01, Eur. Ct. H.R., Judgment of Apr. 12, 2006, §§ 53-55.

³⁴ See, for example, references to human dignity in cases concerning torture and inhuman treatment (Tyrer v. The United Kingdom, App. No. 5856/72, Eur. Ct. H.R., Judgment of Apr. 25, 1978, § 33; Rantsev v. Cyprus and Russia, App. No. 25965/04, Eur. Ct. H.R., Judgment of Jan. 7, 2010, § 282) and cases concerning personal autonomy (Pretty v. The United Kingdom, App. No. 2346/02, Eur. Ct. H.R., Judgment of Apr. 29, 2002, § 65; Christine Goodwin v. The United Kingdom, App. No. 28957/95, Eur. Ct H.R., Judgment of July 11, 2002, §§ 61, 90).

³⁵ Convention for the Protection of Human Rights and Fundamental Freedoms arts. 19, 32, Nov. 4, 1950, E.T.S. No. 5.

³⁶ Klass and Others v. Germany, App. No. 5029/71, Eur. Ct. H.R., Judgment of Sept. 6, 1978.

³⁷ See, e.g., Dudgeon v. The United Kingdom, App. No. 7525/76, Eur. Ct. H.R., Judgment of Oct. 22, 1981 (penalization of homosexual acts between consenting adults). The Court has also issued several judgments on legislation allowing the secret surveillance of telephone communications. In Liberty and Others v. The United Kingdom, App. No. 58243/00, Eur. Ct. H.R., Judgment of July 1, 2008, § 69, the Court concluded that it cannot be considered “that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it did not, as required by the Court's case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants' rights under Article 8 was not, therefore, ‘in accordance with the law.’”

³⁸ In the Polish rent control case the Court, in the dispositive, decided that: “the above violation has originated in a systemic problem connected with the malfunctioning of domestic legislation in that: (a) it imposed, and continues to impose, restrictions on landlords' rights, including defective provisions on the determination of rent; (b) it did not and still does not provide for any procedure or mechanism enabling landlords to recover losses incurred in connection with property maintenance.” Hutten-Czapska v. Poland, App. No. 35014/97, Eur. Ct. H.R., Judgment of June 19, 2006. For a general presentation on the pilot judgment procedure, see Leach, Philip, Helen Hardman Svetlana Stephenson & Brad Blitz, Responding to Systemic Human Rights Violations: An Analysis of “Pilot Judgments” of The European Court of Human Rights and Their Impact on National Level (2010)Google Scholar.

³⁹ Sejdić and Finci v. Bosnia and Herzegovina, App. No. 27996/06, Eur. Ct. H.R., Judgment of Dec. 22, 2009.

⁴⁰ Alajos Kiss v. Hungary, App. No. 38832/06, Eur. Ct. H.R., Judgment of May 20, 2010 (electoral rights of incapacitated persons).

⁴¹ Paksas v. Lithuania, App. No. 34932/04, Eur. Ct. H.R., Judgment of Jan. 6, 2011 (impeachment and permanent loss of electoral rights).

⁴² In Rekvènyi v. Hungary, App. No. 25390/94, Eur. Ct. H.R., Judgment of May 20, 1999, the Court examined limitations on freedom of expression and association imposed by clear language in article 40/B § 4 of the Constitution of the Republic of Hungary on certain categories of police officers, but decided that those limitations were “necessary in a democratic society.” In Victor-Emmanuel de Savoie v. Italy, App. No. 53360/99, Eur. Ct. H.R., Judgment of Apr. 24, 2003, the Court was quite close to deciding that the prohibition on entering Italian territory imposed on members of the former royal family by article XIII of the introductory provisions to the 1947 Constitution of the Italian Republic had breached articles 8 and 14 of the European Convention on Human Rights. However, the impugned provision was repealed by the 2002 Constitutional Law before the Court was ready to decide the case on the merits.

⁴³ Especially in the Vienna Convention on the Law of Treaties art. 27, May 23, 1969, 1155 U.N.T.S. 331: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” It seems obvious that this principle also applies to national constitutions.

⁴⁴ Under EU law, the European Court of Justice has analogous powers, as confirmed in its judgment in the Tanja Kreil case (Case C-285/98, Tanja Kreil v. Federal Republic of Germany, 2000 E.C.R. 1-69). In effect, clauses allowing sex-based discrimination had to be removed from article 12a of the German Basic Law on compulsory military or alternative service. See also Donnarumma, supra note 21, at 723-24.

⁴⁵ The Committee is composed of ministers (usually foreign ministers or their representatives) from all 47 member states. Politically, it is one of the most powerful organs of the Council of Europe. In addition, with regard to the supervision of execution of the ECtHR judgments, it acts as a political body using different forms of pressure and persuasion. For a recent survey, see Council of Europe, Supervision of Execution of Judgments of the European Court of Human Rights: Third Annual Report, 2009 (2010)Google Scholar.

⁴⁶ Favoreu, Louis, Les Cours de Strasbourg et de Luxembourg ne sont pas des cours constitutionelles, in Au Carrefour des droits: Mèlanges en l'Honneur de Louis Dubouis 35 (2002)Google Scholar; Costa, Jean-Paul, La Cour Européenne des droits de l'homme est-elle une cour constitutionnelle?, in Constitutions et Pouvoirs: Mèlanges en l'Honneur de Jean Gicquel (2008)Google Scholar.

⁴⁷ See, e.g., Ústavní zákon č. 1/1993 Sb., Ústava České Republiky [Constitution of the Czech Republic], art. 10; Constitution of The Republic of Estonia, art. 123 § 2; 1958 Const. art. 55 (Fr.); Grondwet voor het Koninkrijk der Nederlanden [Gw.] [Constitution], art. 94 (Neth.); Konstytucja Rzeczypospolitej Polskiej [Constitution], art. 91 § 3 (Pol.); Konstitutsiia Rossiiskoi Federatsii [Konst. Rf] [Constitution], art. 15 § 4 (Russ.); Constitución Española [Constitution], art. 96 (Spain).

⁴⁸ This is even more explicit in EU law, which requires all domestic courts to reject the application of domestic legislation if it is in conflict with (primary or secondary) provisions of EU law.

⁴⁹ Garlicki, Lech, La légitimité du controle de constitutionnalité des lois: problèmes anciens c/developments recents, 78 Revue Fran¸aise De Droit Constitutionnel 244–45 (2009)Google Scholar.