<i>Le Corti costituzionali nelle transizioni democratiche: i casi dell’Italia, della Spagna e della Repubblica ceca</i>

Abstract

The thesis focuses on the analysis and evaluation of the role of constitutional courts in democratic transitions, with special reference to Italy, Spain and the Czech Republic. The research criticises the “formal” notion of democratic transition, according to which the transition ends with the coming into force of the new Constitution, and argues in favour of a “substantive” notion of democratic transition, i.e. when the principles and values stated in the Constitution are actually put into practice. The reason why the thesis analyses these countries is because each one represents a relevant case study. In fact, the constitutional courts of these countries correspond to three “generations” of European constitutional courts that all emerged from the fall of an authoritarian regime. In the case of Italy, the first “season” of the Constitutional Court was examined. During this period, beginning in 1956 and finishing at the end of the 1960s, the Court focused its activity on eliminating fascist legislation that still limited civil, political, religious and social freedoms. It should be underlined that during the first “generation” of constitutional courts, the role and possible impact of the latter on the constitutional order was still unknown. With regard to the second “generation”, where the Spanish Constitutional Court holds a prominent position, there are less uncertainties and a higher number of experiences that can be imitated, and therefore the birth and the establishment of a system of constitutional justice were facilitated. In the period going from 1980 to the beginning of the Nineties, the Court was very active not only in the interpretation and protection of fundamental rights, but also with regard to the sensitive issue of territorial autonomies. In fact, through its case law, the Court has played a fundamental role in the construction of the “Estado autonomico”. Finally, the Czech Republic represents one the countries that took part in the third “wave of democratisation”, following the fall of the Berlin wall and the implosion of the Soviet Union. During the first ten years of its activity, the Constitutional Court of this country had to decide on many issues concerning so called “transitional justice” and the protection of fundamental rights. Unlike the previous experiences, this case shows the peculiar relationship that the process of democratic transition, the establishment of the constitutional justice and the access to the Council of Europe and the European Union have with one another. The research shows that all democratic transitions have not only basic common feature but also their own peculiar issues, and that constitutional courts play a decisive role in their resolution. The variables influencing the activity of the first years of the constitutional courts, and indirectly the processes of democratisation, are numerous: one just has to think of the model of constitutional justice, the time needed for the constitutional courts to be actually set up, the status and the appointment of constitutional judges, the procedural gateways to constitutional courts and the parties entitled to appeal, the orientation of the other constitutional bodies and of the political actors, the participation of the country to European supranational organisations, the use by the constitutional courts of foreign and comparative law and the reference that they make to the ECHR and the case law of the Court of Strasbourg. This thesis shows that, notwithstanding the specificities of each country, the Constitutional Courts of Italy, Spain and the Czech Republic were leading actors of the processes of “substantive” transition, and they contributed to avoiding “Constitutions without constitutionalism”.