(Cross) Referencing Between Constitutional Courts and International HR Bodies in Times of transition: Case of the Czech Republic and Slovakia

Born into the realm of global constitutionalism and strong human rights movement, post-communist constitutional courts undoubtedly belong among the most powerful actors of democratization processes. While there is a vast literature on the constitutional courts, judicial review and judicialization of policy in USA, Western Europe, and some unconsolidated semi-democratic states (Ginsburg 2003, Whittington 1990, Chavez 204, Helmke 2005, Finkel 2005, Vanber 2005, Moustafa 2007, Trochev 2008), Central and Eastern European constitutional courts stay surprisingly under-researched. This fact is all the more surprising considering the role which they played in the transitional justice processes in the wee hours of new regimes. Transitional justice issues surpass the usual human rights language and touch upon topics directly related to the constitutional (political) design of the state. Lustration processes bore consequences for passive voting rights, challenging not only the core democratic principle, but whole electoral system. Condemnation of communist parties had repercussions for the actors of the party system and its competitiveness. Transitional jurisprudence, i.e. constitutional review of lustrations, prosecutions, regime condemnations and reparations against the principles of rule of law, human rights and international commitments of particular states, represented dominant part of their case-law in the first years of the new regimes. Therefore, while the decision on the model of transitional justice and form in which to address the previous atrocities laid in the hands of the new elite, constitutional courts stepped into this game with their ex-post constitutional review, often changing the fragile results of political compromise in a profound way. Following presentation deals with the question of the role of constitutional courts in transition, with particular focus being put on those issues of transitional justice which are directly related to the very essence of the constitutional system (party system, elections, actors' competences). I believe that transitional jurisprudence and activism of constitutional courts resulted in a shift in the principle of the separation of powers. How did than courts establish their legitimacy and authority in reasoning? Are there any patterns of differences in reasoning between cases which upheld and which quashed down legal provisions? Those and similar questions will be addressed on the examples of the Constitutional Court of the Czech Republic and Slovakia. The relevant case law is to be tested for presence of references on parliamentary debates (looking for legislator’s original intent), human rights catalogues and, most importantly, international human rights commitments and practice of other states with similar transitional experience. Drawing from the global trend of human rights discourse and its internationalization, strong emphasis is being put especially on using the references on international human rights treaties and case law of international human rights bodies as a source of legitimacy.