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 constitutional review and judicialization of policy in USA, Western Europe, and some unconsolidated semi-democratic countries (Ginsburg 2003, Whittington 1990, Chavez 204, Helmke 2005, Finkel 2005, Vanber 2005, Moustafa 2007, Trochev 2008), Central and Eastern European constitutional courts remain surprisingly under-researched. This fact is all the more surprising considering the role they played in the transitional justice processes in the wee hours of new regimes. Transitional jurisprudence, i.e. constitutional review of lustrations, prosecutions, regime condemnations and reparations represented a dominant part of their post-transitioning case-law.
However, transitional justice issues surpass the usual human rights language and touch upon topics directly related to the constitutional (political) design of the state, making the constitutional review and its legitimacy all the more controversial. 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 competitiveness of the party system.
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. How did the constitutional courts justify their reasoning? The paper proposal addresses the position of constitutional courts in transitions and looks on different points of references used to justify and build up the legitimacy of constitutional review, with particular focus being put on the references on international human rights law. Paper searches for a presence of interaction with international human rights bodies, which were trying to push forward particular vision of transitional models and values. Patterns and differences in reasoning are examined on examples of the Constitutional Courts of Central European countries.
