The Mixed System of Constitutional and Conventional Control in Peru

The Constitutional Court and the Supreme Court of Peru have been incorporating conventionality control, by virtue of the clause of openness towards international treaties and decisions related to human rights. Against this background of constitutional pluralism I will discuss the effectiveness of not only the condemnatory judgments of the IACHR towards the Peruvian State, but above all, the binding effect of judgments rendered to third countries, and the compliance with them in Peru in order to better protect human rights. This multilevel constitutionalism has its progresses and setbacks which led to an atypical model of constitutional justice in Peru, within the so-called network Constitution

Diffuse Constitutionality Review in Germany

This contribution provides a more nuanced view about the German model of constitutionality review which is traditionally classified as belonging to the centralized “Kelsenian” model, in which a constitutional court has the monopoly over such review. This Kelsenian model is juxtaposed to the United States’ model of diffuse judicial review where any judge can exercise constitutionality control. However, in the past there existed instances where ordinary judges were allowed to review the constitutionality of statutes under Weimar and in West Berlin. And even today, in certain cases ordinary courts can declare statutes unconstitutional if they are pre-constitutional or statutes from former Eastern Germany. Moreover, at the state level courts can also review the constitutionality of state laws. In other words, the German model of centralized constitutionality review is not as pure as one might suspect at first glance.

Quorums as the decisive point on the scales?

In my contribution I will focus on quorums of Constitutional Courts. They are mostly not laid down in constitutional provisions, but in organic laws or in ordinary laws. Yet, they can be decisive. After providing an overview of selected cases, I will illustrate the problem with the example of the Peruvian Constitutional Court. This Court has seven members. Whereas for regular cases a simple majority is necessary in order to find a decision, for some types of cases the majority is five votes out of seven. This can be explained by the history of Peruvian democracy, as increased quorums were a tool of controlling the Constitutional Court during Alberto Fujimoris presidency. The question is therefore, which lessons we can draw from the Peruvian example, especially in times of democratic backlash. Do increased quorums express a special consensus? Or are they complicating decision-taking and weakening Constitutional Courts?

Self-restraint of the European Court of Justice vis-à-vis national constitutional courts – The demise of judicial activism?

For many, the European Court of Justice has become the epitome of judicial activism. In recent years, however, some scholars have diagnosed a shift to a more deferential attitude of the Luxembourg Court. This contribution will put the thesis that the Court has matured into a new era of self-restraint to the test, in particular in its relationship to national constitutional courts. In fact, there are relevant indications for such a development, notably regarding a) the “respect of national identity” clause, b) the realignment of the division of labor between the EU and Member States courts as regards fundamental rights and fundamental freedoms as well as c) the alliance the European Court of Justice appears to offer to national constitutional courts in contrast to international courts and tribunals outside the EU legal protection system. The analysis calls for a nuanced, and reluctant, answer regarding the purported end of judicial activism on the part of the Luxembourg Court.