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Constitutions in Transition - Tendencies in European Constitutional Law after the Fall of Communism

Hausarbeit 2000 10 Seiten

Jura - Andere Rechtssysteme, Rechtsvergleichung


Table of Contents:


Stalinist-shaped Constitutions in CEE-countries before 1989

Transition in Poland

The Constitution of 1997




Soon after the historical changes that took place in Central and Eastern Europe in 1989, it became clear that any new political, social, cultural and economical system introduced after the fall of communism had to be based on a constitutional system of western type. As it will be pointed later, this does not necessarily mean, that basic ideas and concepts of constitutions like those existing in western Europe were completely unknown in the CEE-countries in communist times. However, the need to find a kind of legal framework to prevent drawbacks on the way to democracy and market-orientated economy as well as the demonstration of the new orientation towards the west made significant changes of the constitutional system even more important. From the very beginning there were two sides to the constitutional aspect of transitions. On the one hand, national problems had to be solved. On the other hand, an international political pressure could be observed, e.g. concerning the protection of human rights. The search for a new legal system was a walk on a fine line between principles and compromises on both internal and international level.

Stalinist-shaped Constitutions in CEE-countries before 1989

Primarily some of the basic concepts of typical stalinistic-shaped constitutions, that were introduced in all the countries under the communist governments should be outlined. Thus it will be obvious why changes were inevitable and what questions those changes had to concern. One first big difference to Constitutions in a western sense consisted in the socalled "Pragmatism". This means, that the Constitution had only a minimal binding effect for the public institutions and therefore for the Communist Party, which maintained the control of all the strategical important positions in the public administration. Access to those positions was always restricted, although the range of possible control covered obligations to notify the nomination of candidates as well as the right to send selected party members, depending on how important a position was considered to be. Persons were nominated for such positions by the party either because of their qualification or applying political criteria. (Nomenklatura system) The Constitution was also meant to rule over all aspects of society life, thus reducing the importance of private initiatives in every possible way. Although those regulations differed depending on the country as well as on the sector in question, one of the effects was that the private sector in economy played a minor role in contrary to the western system. Concerning the legal system, the leading role of the Communist Party was also part of the constitution and included in the preamble or in Art. 1. Another fact that derived from Pragmatism also had very much to do with the situtation of individuals and their rights in the Communist State. There was no possibilty to allege a violation of the Constitution before a court. Courts similar to Constitutional Courts existed in former Czechoslovakia, Poland[1], Yugoslavia and to some extent in Hungary but they played and insignificant role: as a matter of fact, only some statal institutions could allege violations of the Contitution and even then, the Sentences of a Constitutional Court had no further effect which means that no execution of those Sentences was possible, whereas in the Western Constitutions the freedom of the individual and its effective protection against the state is one of the most important achievements of liberalism and part of all constituitonal systems. The importance of this institution will be pointed out later in the case of Poland but can also be deducted from the fact that they were introduced shortly after the fall of communism in a great number of countries. Today Constitutional Courts exist in the following countries:

- Albania,
- Belarus,
- Bulgaria,
- Chech Republic,
- Hungary,
- Kazakhstan,
- Lituania,
- Republic of Macedonia,
- Poland,
- Romania,
- Russia,
- Slovakia and
- Slovenia.

Whereas in Poland the Court was established in 1985 and reborn after the fall on communism, Russia saw its introduction in 1993. But even then its role cannot be underestimated as the controverses with the former president Yeltsin and CPSU show. In Hungary the Court not only ruled in 1992 that it would be unconstitutional to hold a plebiscite on wether to call an early parliamentary election. Moreover, it included in its sentence recommendations for futher amendments of the legal system and was critized because this was seen to be an interference with political issues that maybe should be decided by people with democratic legitimacy.[2] As a conclusion it may be stated, that necessary changes had to concern mainly:

- Parties and the electional system,
- Legislative powers (including the discussion of whether a system of two chambers was favorable),
- Parliamental control and
- Human rights.

Transition in Poland

The changes of the communist constitution were closely connected to the political changes taking place in 1989. Basically three possibilities existed in order to deal with the situation. The most practical ones were to substantially revise the communist framework, to get rid of all references to typical communist institutions or to revitalize pre-communist Constitutions. On the one hand this seemed to be a feasible way, especially under an unstable political situation, because compromises could be achieved more easily. On the other hand older Constitutions would often not match with modern requirements and 84patchwork amendments94 could also have undesirable effects. The third possibility, a brand new Constitution, could avoid these disadvantages but a consensus was impossible to achieve in the beginning because of the different points of view of the involved parties.[3]

In Poland the 84Roundtable Agreements94 led to the first free elections on 4th of june of 1989. A few month later the 84December Amendments94 were introduced. The preamble and the chapter about political and socioeconimic system was abolished. The 84Republic of Poland94 was now ruled by law and also components of social justice were included. The Constitutional Tribunal would use such statements of general character to anticipate further reforms. However, this was not intended to be the final constitution, as constitiutional commitees were established in the two houses Sejm and Senate. Work progressed slowly, partly because the difficult task of drawing up a new electoral law was added to the responsabilities of the Sejms commitee. Elections in octobre 1991 resulted in the fragmentation on the Solidarity movement and president Walesa established a 84Rada Polityczna94 consisting of 200 persons without any Constitutional framework. Discussions also concerned the role that the Sejm should play in the new system. It was obvious that changes had to come as soon as possible and as a result the 84Small Constitution94 came into force in 1992. According to this regulation, Sejm was the most important institution as long as it had a stable majority. This system was critized by Walesa and others that would have preferred a kind of presidential republic. Also, positive human rights were still missing although of utter importance in the view of an integration in the European Union and the role of the church was still undecided.

The Constitution of 1997

The final Constitution came into force on 16th of octobre 1997. The new system is a strong parliamentary one which gives the Sejm rights to control the Council of Ministers and the Government. Positive, enforceable rights were mainly included in the chapter 84Wolnosci i prawa osobiste94. Without going into details, which in the given context would be impossible, it can be observed, that in Poland as well as in some other countries, the german model was of significant importance, despite of the fact, that Germany is organized as a federal state and insofar the polish system may rather be compared to the 84Departement94-organisation in France. The main idea of liberal constitutions is the rule of law, the Rechtsstaat, which originally served as a protection of the individual against arbitrary acts from state organs. The individuals have the right to be treated according to the law which is seen to be the consensus of all the citizens in a democratic system. All acts that are deemed to be against the law, arbitrary or unconstitutional are annulled by Constitutional and Administrative Courts. Naturally, Constitutional Courts play an important role in such a system and underline the checks-and-balances organisation of the state that should garantuee the stabillity of the system against anti-democratical tendencies. Soon in Poland the same phenomenons occured as in Germany in the 1970s and in Austria, which has a Constitution similar to the german one that dates back to 1920: by an extensive interpretation of general clauses, the Constitutional Tribunal developed and protected substantive rights of the individuals. These interpretations are traditionally based on the Rechtsstaat-clause as well as on the prohibition of discrimination. As it will be pointed out with some examples, for example the latter clause nowadays includes the obligation for governments only to adopt objective and factual regulations. As a matter of fact, this leads to restrictions of political possibilities and forces the legislative powers to consider all kinds of effects that this control may have. For example, governments might prefer not to introduce new regulations at all, when solely some parts of it might be declared unconstitutional.[4] This might happen because normally it is much more difficult for the Court to do something against governmental inactivity. Naturally, thus sometimes important regulations may suffer serious delays. In this context also the Law of the European Union is of importance because countries are fully responsable for inactivity in the field of transformation of community law. Critics also underline the fact, that decisions of political character are in this system controlled by institutions without democratic legitimacy. If this is a desirable effect in a democratical society is still subject of discussions.

In fact, some of the problems that the Polish Contitutional Court had to deal with since the fall of communism are astonishing similar to cases of the recent austrian constitutional history and might serve as examples for the kind of interpretation of Constitutional Law that was adopted in Poland recently. In 1990 the Tribunal was asked, if the reducing the pensions of former communist officials was unconstitutional or not.[5] Finding the principle of nonretroactivity touched, it had to judge, if cutting the pensions would violate the rights obtained in the past. Although this was found not be the case, the Tribunal stated, that retroactive laws needed a specially founded justification because people also have the right to rely on the law. Changes should only affect the future so that people can dispose and act according to the legal situation given at the moment of legal relevant action.[6] Another conlusion that was drawn on the basis of the Rechtsstaat-clause concerned process guarantees and judicial review, e.g. for alien deportations.

However, the most cited Article of the Polish Constitution is the equal protection clause.[7] It is mentioned in more than 50 decisions since 1989. The Tribunal also found that the classification of forbidden discrimination is not exhaustive, which means that other forms of discrimination are also not allowed, if a special justification does not exist. Quite similar to certain decisions in Austria, Polish Constitutional Tribunal also classified budgetary problems as a proper justification for discriminating regulations but stressed that topics concerned have to be closely connected and all regulations must be proportional.[8] Therefore the fact that female miners could retire after 20 years, whereas male miners had to work 25 was not unconstitutional considering the working conditions of miners and the physical differences between men and women. The different regulation was based on objective and fair criteria.[9] The same criteria applied on university staff would lead to a different conclusion, because in this case the genders are irrelevant for the conditions of work.[10] The consequence of this sentences are of utter importance for the legislative power. Primarily, unjustified discrimination is forbidden. On the other hand laws might introduce different regulations for different situations and sometimes diverging regulations can even be constitutionally necessary.


Post-Communism Leslie Holmes Duke University Press, Durham 1997

Transition to Democracy in Poland (2nd edition) Richard F. Staar (Editor) St. Martins Pess, New York 1998

The Unplanned Society - Poland during and after Communism Janine R. Wedel (Editor) Columbia University Press, New York 1992

From Autarchy to Market - Polish Economics and Politics 1945-1995 R. Hunterbrand, L. Ryan Praeger London 1998

Shock Waves - Eastern Europe after the Revolutions John Feffer South End Press, Boston 1992

Oesterreichisches Verfassungsrecht Theo Oehlinger WUV Verlag, Wien 1999

Grundriss des oesterreichischen Verfassungsrechts Walter-Mayer Manz Verlag, Wien 1999

EinfFChrung in das F6sterreichische Verfassungsrecht (9. Auflage) Bernd Christian Funk Leykam KurzlehrbFCcher, Graz 1996

Konstytucja Rzeczpospolitej Polskiej w dniu 16 lipcia 1997 roku Published by Studio Sto, Bielsko Biala

Between East and West: Hypotheses on the Cultural-Legal Mentalities and Formation of the Rule of Law in Poland Grazyna Skapska Paper for the conference 84Transformation and Integration in the Baltic Sea Area and the Barents Area94, Umea, Sweden, 15.-19. November 1997



[1] Since 1985, although with the limited possibilities as outlined.

[2] See Chapter about the Constitution of 1997

[3] Naturally also the roman catholic church played a significant role in the discussion about a new Constitution. It ;may serve as an example that the church wanted the priority of natural law to be mentioned in the Constitution. However, the Constitution of 1997 only refers to God in the Preamble and natural law is not mentioned. (The idea of referring to the principles of natural law in Constitutions was discussed in Germany after the second world war. The idea was that in case of a moral and political corruption lawyers and judges would have a positive justification to oppose against anti-democratical tendencies. Such a possibility did not exist in the thirties as this was seen as one of the reasons why, under the influence of legal positivism, the german judicial system in almost every case cooporated with the nazis as the legislative power. However, it should be mentioned that an exact definition of the content of natural law is nearly impossible and different interpretations would still be possible.)

[4] Concerning the principle of the rule of law and its limits see 84In der Krypta des Rechts94 by Frank Laudenklos (Juridikum 4/98, page 26 ff.)

[5] Decisions of the Austrian Constitutional Court: VfSlg 11.309/1987 (Politikerpensionen), VfSlg 12.586/1990 and VfSlg 2. 10. 1998, B4939/96

[6] This principle is known as nulla poena sine lege and included in Art. 7 of the European Convention on Human Rights.

[7] Art. 68

[8] In this context it should be mentioned that the principle of proportion is one of the most important in European Community Law.

[9] Judgement K 6/89 of 24th of Octobre 1989 OTK 100, 1989; however, the question if this regulation will be compatible with European Community Law will perhaps be decided after the enlargment of the EU.

[10] Judgement Kw 5/91 of 24th of September 1991 OTK 96, 1991


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Constitutions Transition Tendencies European Constitutional Fall Communism Poland Central Europe




Titel: Constitutions in Transition - Tendencies in European Constitutional Law after the Fall of Communism