Forthcoming in: International Journal of Constitutional Law 17 (2019).

Michael Hein*
Do Constitutional Entrenchment Clauses Matter? Constitutional Review of
Constitutional Amendments in Europe

Abstract: Do constitutional entrenchment clauses matter? And if yes, how? This article
examines these questions by analyzing a comprehensive collection of 154 decisions issued by
European constitutional and supreme courts from 1945 up to 2016, on the constitutionality of
constitutional amendments. The article shows that entrenchment clauses do matter: in the
vast majority of decisions studied, the claimants and/or the courts referred to a constitutional
entrenchment clause. About one fourth of these cases resulted in the invalidation of a
constitutional amendment, most of which were based on an ‘eternity clause’, that is, the most
extreme type of entrenchment clauses. However, the article also demonstrates that most of
these invalidations can be assessed as instances of democracy-adverse judicial activism. The
article concludes, therefore, that entrenchment clauses cannot be considered an unambiguous
instrument for the protection of democratic constitutionalism.

*
Postdoctoral Fellow, Alexander von Humboldt Chair of Comparative Constitutionalism, Department of
Political Science, University of Göttingen. Email: michael.hein@uni-goettingen.de. This is a revised version of a
paper presented at the workshop “Rethinking ‘Militant Democracy’: Democratic Dilemmas in the Age of
Populism”, which took place within the ECPR Joint Sessions in Nicosia, April 10–14, 2018. I wish to thank all
participants at the workshop, particularly Fernando Casal Bertoa, as also Pedro Fortes, Anna Fruhstorfer, Ran
Hirschl, and Eugénie Mérieau for their helpful comments and suggestions. For assistance with the data collection
on certain countries, I am grateful to Athanasia Hadjigeorgiou (Cyprus), Alkmene Fotiadou (Greece), Peter
Bußjäger (Liechtenstein) and Maria Haimerl and Zeynep Yanasmayan (Turkey). This research was supported in
part by the Alexander von Humboldt Professorship in Comparative Constitutionalism.
1. Introduction

On June 5, 2008, the Turkish Constitutional Court invalidated a constitutional amendment

that had abolished the headscarf ban in universities.1 With this well-documented and widely
discussed “headscarf decision”,2 the Court opposed not only a parliamentary four-fifths
majority, and a similar majority of Turkish citizens,3 but also overstepped its constitutional
competencies. The Turkish Constitution entitles the Court to review constitutional
amendments only regarding the procedural questions “of whether the requisite majorities
were obtained for the proposal and in the ballot, and whether the prohibition on debates under
urgent procedure was complied with.”4 Nevertheless, the Court based its decision on a highly
controversial substantial interpretation of a constitutional entrenchment clause, which
declares the principle of secularism unamendable.5 Rather than interpreting this principle as
an obligation of the state to religious neutrality and to protect individual religious freedom,
the Court argued that the individual right to wear religious symbols in public, when exercised
“in classes or laboratories where students’ attendance is compulsory, […] has the potential to
turn into an instrument of pressure on individuals with different beliefs, political views or
lifestyle choices.”6

This example does not only show that entrenchment clauses can impact political power
struggles and make constitutional courts veto players in constitutional politics, but also
reflects how courts can use entrenchment clauses in a democracy-adverse, judicially activist
manner. As will be demonstrated in this article, this is far from being an exception. In the
majority of cases where European courts have intervened in constitutional politics after 1945,
these courts not only failed to protect essential principles of democratic constitutionalism, but
also endangered those principles. This article thus questions the expectation that the

1
Constitutional Court of Turkey, Decision of June 5, 2008, No. 2008/116; Official Gazette, October 22, 2008,
No. 27032.
2
See Yaniv Roznai & Serkan Yolcu, An Unconstitutional Constitutional Amendment—The Turkish Perspective:
A Comment on the Turkish Constitutional Court’s Headscarf Decision, 10 INT’L J. CONST. L. 175–207 (2012);
Ergun Özbudun, Judicial Review of Constitutional Amendments in Turkey, 15 EUR. PUB. L. 533–538, 537f.
(2009); Ran Hirschl, Juristocracy vs. Theocracy: Constitutional Courts and the Containment of Sacred Law, 1
MIDDLE E. L. & GOVERNANCE 129–165, 159–162 (2009).
3
Konhaber, Toplumun yüzde 80’i yasağın kalkmasını istiyor [80 Percent of the Society Want to Remove the
Ban], Konhaber - Türkiye’nin İnternet Gazetesi, February 9, 2008, http://www.konhaber.com/haber-
toplumun_yuzde_80_i_yasagin_kalkmasini_istiyor-22543.html (last visited September 12, 2018).
4
Article 148, paras 2–3 Constitution of the Republic of Turkey of November 7, 1982.
5
Article 4 Constitution of the Republic of Turkey of November 7, 1982.
6
Constitutional Court of Turkey, supra note 1.
–2–
introduction of entrenchment clauses leads to a higher level of protection of democratic
constitutionalism.7

Almost all contemporary constitutions are generally entrenched, that is, harder to amend than
ordinary laws. This is typically achieved by requiring increased parliamentary majorities,
approval by two successive parliaments (i.e., the need for intervening elections), or an
additional referendum.8 However, many constitutions take one or two further steps and
contain additional entrenchment clauses. These are provisions that make amendments to
certain parts of a constitution or amendments under certain circumstances either more difficult
than “normal” amendments (“constraint on amendments”) or impossible, that is, legally
inadmissible (“prohibition of amendments”).

Scholarly interest in such provisions has grown considerably in recent decades and finally
begun to attract attention from comparative lawyers.9 Their studies focus predominantly on
topics such as the normative appropriateness of entrenchment clauses, the problems of their
interpretation, and the relationship of explicit entrenchment clauses and implicit limitations on
constitutional amendments (such as a “basic structure doctrine”). Indeed, these aspects mirror
the relevance of such provisions, since the annulment of constitutional amendments
constitutes a serious intervention into the amending power of the parliament—if not the
people itself—and therefore causes legitimacy problems stronger than those the courts face
when reviewing statutory legislation.10

In contrast, legal sociology and political science have largely not put any emphasis on
entrenchment clauses. This is probably due to the prevailing assumption that such provisions
are “a mere dormant declaration, a theoretical concept without any real practical
implications”11—or, as Jon Elster put it: “The purpose of such unamendable clauses is, I

7
See Yaniv Roznai, UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS. THE LIMITS OF AMENDMENT POWERS
180 (2017); Richard Albert, Nonconstitutional Amendments, 22 CAN. J. L. & JURIS. 5–47, 35 (2009).
8
See Peter Suber, THE PARADOX OF SELF-AMENDMENT. A STUDY OF LAW, LOGIC, OMNIPOTENCE, AND CHANGE
17–18 (1990).
9
See Roznai, supra note 7; Gábor Halmai, Judicial Review of Constitutional Amendments and New
Constitutions in Comparative Perspective, 50 WAKE FOREST L. REV. 951–984 (2015); Richard Albert, Amending
Constitutional Amendment Rules, 13 INT’L J. CONST. L. 655–685 (2015); Lech Garlicki & Zofia A. Garlicka,
Review of Constitutionality of Constitutional Amendments (An Imperfect Response to Imperfections?), 1
ANAYASA HUKUKU DERGISI 185–224 (2012); Kemal Gözler, JUDICIAL REVIEW OF CONSTITUTIONAL
AMENDMENTS: A COMPARATIVE STUDY (2008); Rory O’Connell, Guardians of the Constitution:
Unconstitutional Constitutional Norms, 4 J. C. L. 48–75 (1999).
10
See Roznai, supra note 7 at 105–175.
11
Ladislav Vyhnánek, The Eternity Clause in the Czech Constitution as Limit to European Integration, 9 ICL J.
240–252, 244 (2015).
–3–
believe, mainly symbolic.”12 Apart from some single-case analyses considering the role of
entrenchment clauses,13 systematic knowledge of the empirical consequences of such
provisions is still lacking.

Against this background, I am interested in whether constitutional entrenchment clauses

matter for constitutional politics, that is, for the process of amending or replacing
constitutions. If so, what kind of empirical effects do entrenchment clauses have? The first
question asks whether such provisions have any impact on the submission, debate, adoption,
and constitutional review of constitutional amendments. The second question asks whether
entrenchment clauses are actually used to protect those constitutional subjects they aim to
protect, usually key elements of democratic constitutionalism such as democracy,
fundamental rights, the rule of law, or the separation of powers.14 In other words, are
entrenchment clauses applied by courts in a democracy-compatible or democracy-adverse
manner?

From the different possible phases of the constitutional policy circle, I exclusively examine
that of constitutional review, for two reasons, primarily. First, courts are the weakest
institutions in a political system, since they neither have direct recourse to democratic
legitimacy, nor any executive power at their disposal to implement their decisions.15 If a court
annuls a constitutional amendment on the basis of an entrenchment clause, and the other
political actors accept this ruling, this would therefore indicate a quite strong influence of that
constitutional provision compared to a mere symbolic impact. Second, court decisions on
constitutional amendments can be examined systematically. While this would also be possible
for parliamentary debates, public discourse on possible amendments that do not reach the

12
Jon Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. CHI. L. REV. 447–482, 471 (1991).
13
See e.g. Sergiu Gherghina & Michael Hein, Romania, in CONSTITUTIONAL POLITICS IN CENTRAL AND
EASTERN EUROPE. FROM POST-SOCIALIST TRANSITION TO THE REFORM OF POLITICAL SYSTEMS 173–197 (Anna
Fruhstorfer & Michael Hein eds., 2016); Michael Hein, Bulgaria, in Constitutional Politics in Central and
Eastern Europe. From Post-Socialist Transition to the Reform of Political Systems 145–171 (Anna Fruhstorfer &
Michael Hein eds., 2016); Michael Hein, VERFASSUNGSKONFLIKTE ZWISCHEN POLITIK UND RECHT IN
SÜDOSTEUROPA: BULGARIEN UND RUMÄNIEN NACH 1989 IM VERGLEICH [CONSTITUTIONAL CONFLICTS
BETWEEN POLITICS AND LAW IN SOUTHEAST EUROPE. A COMPARATIVE STUDY OF BULGARIA AND ROMANIA
AFTER 1989] (2013); Sigita Urdze, Lithuania, in CONSTITUTIONAL POLITICS IN CENTRAL AND EASTERN EUROPE.
FROM POST-SOCIALIST TRANSITION TO THE REFORM OF POLITICAL SYSTEMS 439–461 (Anna Fruhstorfer &
Michael Hein eds., 2016); Frank M. Walsh, The Honduran Constitution is Not a Suicide Pact: The Legality of
Honduran President Manuel Zelaya’s Removal, 38 GA. J. INT’L & COMP. L. 339–373 (2010).
14
Michael Hein, Entrenchment Clauses in the History of Modern Constitutionalism 86 LEGAL HISTORY REVIEW
(2018), forthcoming.
15
See Alexander M. Bickel, THE LEAST DANGEROUS BRANCH. THE SUPREME COURT AT THE BAR OF POLITICS
(2nd ed. 1986); Wojciech Sadurski, RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN
POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE 45–90 (2nd ed. 2014).
–4–
parliamentary stage cannot be analyzed systematically, at least not in research designs
comparing large numbers of cases. Any preemptive adherence to entrenchment clauses, in
other words, when actors refrain from publicly announcing amendment proposals they deem
unconstitutional, would be an imponderable and so fall within the realm of speculation.

Therefore, I analyze a comprehensive collection of 154 decisions that European constitutional

and supreme courts have taken from 1945 to 2016 on the constitutionality of constitutional
amendments. I substantively assess these decisions, considering whether a particular decision
constitutes a case of judicial activism encroaching on the people’s democratic right of self-
government instead of protecting democratic constitutionalism, or a case of judicial restraint,
that is, a decision that accepts the people’s democratic right of self-government and intervenes
only insofar as the court is (at least implicitly) entitled and called upon by the constitution to
do so. In doing so, I apply a thick understanding of modern democracy, which not only
comprises citizens’ equality, free and fair elections, the active participation of the people, and
the control of the governing by the governed, but also the protection of fundamental rights,
the rule of law and the separation of powers as necessary means to protect the aforementioned
elements.16

In what follows, I first develop a framework for the substantive analysis of court decisions
and embed the phenomenon of constitutional review of constitutional amendments in the
literature on the global expansion of judicial power and on judicial activism. Against this
background, I develop my theoretical expectations (2.). Subsequently, I briefly outline the
analyzed data (3.), before I examine the 154 court decisions with regard to the two research
questions of this article (4./5.). In the concluding section, I summarize the key findings and
argue that constitutional entrenchment clauses cannot be considered an unambiguous
instrument for the effective and efficient protection of the democratic constitutionalism (6.).

16
See Larry Diamond, IN SEARCH OF DEMOCRACY (2015); Larry Diamond & Leonardo Morlino, ASSESSING
THE QUALITY OF DEMOCRACY (2005).

–5–
2. The consequences of constitutional entrenchment clauses: theoretical expectations

2.1 Constitutional entrenchment clauses and the global expansion of judicial power

Both political scientists and legal scholars have described a global trend, over the past few
decades, towards the “expansion of judicial power”,17 the “judicialization of politics”,18 or
even “juristocracy”.19 This strand of literature describes how courts “have become
increasingly important, even crucial, political decision-making bodies”20 by means of judicial
review and by developing law though interpretation. This has been demonstrated for many
fields of political decision-making, but not for constitutional politics. This is somewhat
surprising, given the fact that constitutional review of the amendment process started as early
as in 1798 with the US Supreme Court’s decision in Hollingsworth vs. Virginia, that is, five
years before the landmark Marbury v. Madison judgment.21

When reviewing the constitutionality of constitutional amendments, it is an obvious—

probably the most obvious—choice for courts to refer to a constitutional entrenchment clause,
since such provisions set explicit limits to constitutional change. Likewise, entrenchment
clauses invite possible claimants to go before the court as a last chance to invalidate a disliked
amendment. It seems therefore reasonable to assume that entrenchment clauses function as a
catalyst in the review of constitutional amendments. Therefore, I expect constitutions with
entrenchment clauses to be accompanied with higher numbers of court decisions on
(potential)22 constitutional (draft) amendments and a higher share of annulled amendments
compared to constitutions without entrenchment clauses.

The influence of entrenchment clauses might be “moderated” by the types of procedure

available for a constitutional or supreme court. Types of procedure regulate the access to

17
Chester Neal Tate & Torbjorn Vallinder, THE GLOBAL EXPANSION OF JUDICIAL POWER (1995).
18
Alec Stone Sweet, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (2000).
19
Ran Hirschl, TOWARDS JURISTOCRACY. THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM
(2004).
20
Id. at 1.
21
Hollingsworth vs. Virginia, 3 U.S. (3 Dallas) 378 (1798); Marbury va. Madison, 5 U.S. (1 Cranch) 137
(1803). See Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97
HARV. LAW REV. 386–432, 403 (1983).
22
Potential constitutional amendments are considered in case of so-called “interpretation decisions”. The
constitutional interpretation is a peculiarity of some post-socialist constitutional courts in Europe (e.g. in
Bulgaria, Moldova, or Ukraine). It entitles state authorities to request the interpretation of a constitutional norm
without any specific prerequisite. In some jurisdictions, the applicants can equip their interpretation requests
with concrete questions dealing with law projects or potential constitutional amendments. Among the court
decisions under study, four judgments in Bulgaria (2003, 2004, 2005, and 2015) fall in this category.
–6–
courts, the possible contents of review, and the consequences of the court decisions.23 They
thus substantially configure a court’s case law. Considering decisions on the constitutionality
of constitutional amendments in Europe, one type of procedure stands out: five Central and
Eastern European, post-socialist constitutional courts (Azerbaijan, Kosovo, Moldova,
Romania and Ukraine) are obliged to review ex officio all constitutional draft amendments
before (a priori) they reach parliamentary debate. This will probably not just lead to a higher
number of court decisions on constitutional amendments. It also transforms the respective
courts from restricted, “negative legislators” to effective, “positive legislators”,24 because they
are not dependent on being called into play by another actor and cannot only retroactively
annul amendments but can also actively influence their drafting. Therefore, it seems
reasonable to expect also a much more active (but not necessarily activist) role for those
courts, resulting in a higher share of annulled amendments.

Finally, it seems reasonable to expect a rise in court decisions on the constitutionality of

constitutional amendments, and an increasing share of amendment invalidations over time.
Two arguments speak in favor of this expectation. First, if the observation of a global trend
towards the expansion of judicial power is correct, this trend should also be visible in the field
of constitutional politics. Second, the share of constitutions with entrenchment clauses has
increased: whereas among the countries under study only 40.0% of the constitutional states
had an entrenchment clause in 1945 (six out of 15 constitutions), this share increased to
73.5% in 2016 (36 out of 49 constitutions).25

2.2 What is “judicial activism”?

The trend towards the expansion of judicial power coincides with an increase in judicial
activism. Since the 1940s,26 judicial activism has been defined in several ways, for instance,
as ignoring precedent, as departure from accepted interpretive methodology, as judicial
legislation, as result-oriented judging, or as striking down arguably constitutional actions of

23
See Michael Hein & Stefan Ewert, How Do Types of Procedure Affect the Degree of Politicization of
European Constitutional Courts-A Comparative Study of Germany, Bulgaria, and Portugal, 9 EUR. J. LEGAL
STUD. 62–102 (2016).
24
See Hans Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American
Constitution, 4 J. POLIT. 183–200 (1942).
25
Michael Hein, THE CONSTITUTIONAL ENTRENCHMENT CLAUSES DATASET (2018), http://data.michaelhein.de
(last visited September 12, 2018).
26
Keenan D. Kmiec, The Origin and Current Meanings of “Judicial Activism”, 92 CALIF. LAW REV. 1441–
1477, 1445–1450 (2004).
–7–
other state bodies.27 Applying the last-mentioned definition, and using a formulation provided
by Lino A. Graglia, I interpret judicial activism as “the practice by judges of disallowing
policy choices by other governmental officials or institutions that the Constitution does not
clearly prohibit.”28 This means that

an “activist judge” is one who decides the outcome of a given case or controversy by applying something
other than the law—his own values, his conception of “evolving social values,” his sense of a “just”
result, and so forth. The basic vice of judicial activism, as understood in this sense, is that it violates the
[…] constitutional principle of separation of powers, for it is an abuse of the courts’ legitimate judicial
power […].29

For the study of the constitutional review of constitutional amendments, this understanding of
judicial activism is particularly favorable. It enables scholars to analyze the democratic
compatibility of constitutional review in its relationship to the other, “political” branches of
the state. This is based on a “thick” definition of democracy, which requires not only that all
actions of the state be legitimized and controlled by citizens, but also framed by fundamental
rights, the rule of law, and the separation of powers to protect both democratic procedures and
citizens’ individual rights.30 The function of constitutional review is to protect that
constitutional framework, but since constitutional and supreme courts are merely checked and
balanced by other state bodies, the courts may themselves threaten the democratic order.

One need not conceptualize judges as “politicians in robes”31 in order to recognize that
constitutional and supreme court decisions are to a greater or lesser extent (co-)determined by
political influences.32 This is an inevitable consequence of the relatively wide scope for
decision-making in constitutional matters, because “constitutional provisions and principles
are often quite open-textured in nature, and thus open to multiple different reasonable
interpretations.”33 A court is not just the Montesquieuean “mouth that pronounces the words

27
See Id.
28
Lino A. Graglia, It’s Not Constitutionalism, It's Judicial Activism, 19 HARV. J. L. & PUB. POL’Y 293–300, 296
(1996).
29
David N. Mayer, LIBERTY OF CONTRACT: REDISCOVERING A LOST CONSTITUTIONAL RIGHT 58 (2011).
30
See Diamond, supra note 16; Diamond & Morlino, supra note 16.
31
See Charles H. Sheldon, THE SUPREME COURT: POLITICIANS IN ROBES (1970).
32
Michael Hein & Stefan Ewert, What is “Politicisation” of Constitutional Courts? Towards a Decision-
oriented Concept, in LAW, POLITICS, AND THE CONSTITUTION. NEW PERSPECTIVES FROM LEGAL AND POLITICAL
THEORY 31–45, 39 (Antonia Geisler, Michael Hein, & Siri Hummel eds., 2014). The degree of politicization
depends on factors such as the character of the political regime; the appointment of judges; political pressure;
public opinion; the political, legal and organizational culture; the contents of the case-law; and the types of
procedure.
33
Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional
Constitutional Amendment, 13 INT’L J. CONST. L. 606–638, 610 (2015).
–8–
of the law, mere passive beings, incapable of moderating either its force or rigor”34, or, as
Max Weber put it, a judge is not “an automaton into which legal documents and fees are
stuffed at the top in order that it may spill forth the verdict at the bottom along with the
reasons, read mechanically from codified paragraphs.”35

Moreover, courts face the so-called “counter-majoritarian difficulty”36:

While it is true that judicial review can strengthen democracy, this does not mean that it presents no
democratic risks. These risks [lie] in the lack of democratic control. After all, the judiciary can set
aside the will of the elected representatives of the people without enjoying equal democratic
legitimacy and without being equally accountable to the people.37

This is exponentiated when it comes to the review of constitutional amendments. In

invalidating an amendment, the court’s “opponent” is not just a parliamentary majority, which
might—at least in principle—react by activating the amending power and search for a
qualified majority and/or the people’s consent. The court’s “opponent” in fact is also that very
amending power, and the only remaining reaction would be a new constitution-making, or—
when an eternity clause is affected—even a revolution.38

However, judicial activism is a particularly strong and evitable form of politicization. It

describes a democracy-adverse behavior based on the judges’ personal preferences or
ideological orientations. Activist decisions enforce one possible interpretation of a certain
constitutional principle or provision instead of leaving the parliament or the people to choose
between differing, equally legitimate interpretations. Judicial activism disrespects the policy
space of the legislature and tends to endanger (instead of protecting) democracy, the
separation of powers, the rule of law, and fundamental rights. Judicial restraint, in contrast, is
a self-limiting court behavior compatible with democracy. It acknowledges competing
constitutional interpretations as equally legitimate and leaves it to the legislature (or the
people) to choose between those interpretations. Judicial restraint thus “stands for the idea

34
Charles, Baron de Montesquieu, THE SPIRIT OF LAWS 159 (Cosimo 2011) (1748).
35
Max Weber, 2 ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 979 (University of
California Press 1978) (1922).
36
Bickel, supra note 15.
37
Dieter Grimm, CONSTITUTIONALISM: PAST, PRESENT, AND FUTURE 221 (2016).
38
See Dixon & Landau, supra note 33 at 608; Rivka Weill, On the Nexus of Eternity Clauses, Proportional
Representation, and Banned Political Parties, 16 ELECTION L. J. 237–246, 243 (2017).
–9–
that the judge applies the relevant law, and only the law, in the case before him—he
‘restrains’ any inclination to do otherwise.”39

2.3 Identifying judicial activism in the constitutional review of constitutional amendments

Many legal scholars favor constitutional review of constitutional amendments.40 In the

footsteps of Alexis de Tocqueville,41 they fear “the problematic possibilities of popular
sovereignty when sovereignty is mediated through an ill-intentioned legislature.”42 Against
this danger, these scholars build strong hopes on constitutional review. For Yaniv Roznai,
“judicial review of constitutional amendments fulfils the vertical separation of powers.”43
Likewise, Richard Albert envisions constitutional review as “a necessary check in
parliamentary states that authorize the national legislature to amend the constitution without
popular ratification.”44 In such a perspective, one would expect constitutional and supreme
courts to show judicial restraint toward constitutional amendments.

However, as Rosalind Dixon and David Landau have demonstrated, this does not necessarily
have to be the case:

An obvious difficulty with a doctrine of unconstitutional amendment is that, once let loose, it may be
applied to frustrate normal instances of constitutional change and not just amendments posing a
substantial threat to democracy. Experience with countries applying the doctrine demonstrates that
this is a real and not just a hypothetical problem: there are many examples of courts overusing the
doctrine.45

A look at the possible sources to declare amendments unconstitutional makes this observation
plausible. First and foremost, courts can assess whether the amendment procedure was
followed properly. Procedurally irregular amendments are the least controversial kind of
unconstitutionality. “Where the limits on amendment are procedural, there is always the

39
Mayer, supra note 29 at 152.
40
See Richard Albert, Malkhaz Nakashidze & Tarik Olcay, The Formalist Resistance to Unconstitutional
Constitutional Amendments, 70 HASTINGS L. J. 1–26, 3 (2019, forthcoming),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3195059 (last visited September 12, 2018).
41
Alexis de Tocqueville, DEMOCRACY IN AMERICA: VOLUME I (1839).
42
Albert, supra note 7 at 35; similarly Dixon & Landau, supra note 33 at 607; David Landau, Abusive
Constitutionalism, 47 U.C. Davis L. Rev. 189–260, 237 (2013).
43
Roznai, supra note 7 at 180.
44
Albert, supra note 7 at 46.
45
Dixon & Landau, supra note 33 at 608.
– 10 –
possibility that the legislature can attempt to reenact an amendment.”46 In addition, one could
even say that in these cases, courts only ascertain whether an asserted amendment is an
amendment at all.47 Second, courts can base their decisions substantially on the supremacy of
international law over national constitutional law.48 This is a legitimate option, if and insofar
that supremacy is explicitly stipulated in the constitution. That way, courts may force the
legislative power to either refrain from a certain constitutional amendment or to change the
respective international legal situation, for instance, by terminating the respective
international treaty. This does not only circumvent international conflicts, but also leaves
parliament (and the people) with the opportunity to amend the constitution in the desired way.

Third, courts can apply a theory of implicit substantial limitations on constitutional

amendments and state that a given constitution contains several unamendable principles or
features, although they are not explicitly declared unamendable in the constitutional text.49
This concept was for the first time applied by the Indian Supreme Court, which established its
famous “basic structure doctrine” in the Kesavananda Bharati vs. State of Kerala decision in
1973.50 The development and application of theories of implicit amendment limitations is a
typical feature of judicial activism. Those theories are inevitably nothing other than an ex post
rationalization by a small group of judges of the assumed will of the people that had enacted
the constitution. It is thus not surprising that, beginning with the Indian case in the application
of those theories, judges are often not able to reach a unanimous position amongst themselves.
Even if proposed implicit limits aim to protect democratic constitutionalism, their genesis
alone breaches the principle of democratic constitution-making.

Finally, and if available, courts can rely on substantial constitutional entrenchment clauses.
These clauses can be understood as the explicit will of the people expressed when enacting the
constitution. In contrast to the application of a “basic structure doctrine,” invalidating a
constitutional amendment with reference to an entrenchment clause can be a restrained
action,51 as long as it fulfills the above-mentioned criterion of judicial restraint, that is,
acknowledging competing constitutional interpretations as equally legitimate and leaving it to

46
Id. at 610.
47
Gözler, supra note 9 at 27–28.
48
Roznai, supra note 7 at 82–102.
49
See Id. at 39–70.
50
Kesavananda Bharati vs. State of Kerala, AIR 1973 SC 1461.
51
Roznai, supra note 7 at 141–157. Therefore, it seems also reasonable to expect that courts will refrain from
the proposition of a theory of implicit limitations on constitutional amendments when having entrenchment
clauses at their disposal. Conversely, courts in constitutional orders without entrenchment clauses can be
expected to be more open to the invocation of implicit amendment limitations.
– 11 –
the democratically legitimated amending power to choose between them. If, for instance, a
constitutional eternity clause protects the independence of the judiciary, the court would be
allowed (and obliged) to invalidate any amendment that would infringe on that principle, for
example, the introduction of the right of the minister of justice to intervene in court
proceedings. In contrast, amendments that only reform the way an independent judiciary is
organized, would have to be accepted (e.g., a change from the judicial self-management
model to the management-by-the-executive model—as long as this is not used to get rid of
judges by terminating their ongoing terms).52

In sum, judicial restraint regarding constitutional amendments can be understood as a court

behavior that fulfills two criteria. In procedural terms, a restrained court reviews an
amendment only and insofar as it is explicitly or at least implicitly entitled to do so. The latter
is typically the case if the respective court has the competence to review the constitutionality
of “laws,” and constitutional amendments are adopted in the form of “laws” (as, e.g., in
Germany). If, in contrast, a constitution explicitly denies a court that competence or restricts it
to certain (e.g., to procedural) aspects, a restrained court will not overstep these boundaries. In
substantive terms, a restrained court strikes down a constitutional amendment only if it has
violated the constitutional amendment procedure, contradicts international law (insofar as its
supremacy is codified by the constitution), or clearly breaches a constitutional principle or
provision that is protected by an entrenchment clause. A court decision that fulfills both
criteria constitutes either a restrained intervention or a restrained non-intervention into the
amendment process (depending on the characteristics of the reviewed amendment).

If one or both criteria are not fulfilled and a court nevertheless invalidates a constitutional
amendment, this court decision must be assessed as an activist intervention. Finally, there is
the fourth possibility, which I would like to call an activist non-intervention. In line with the
presented understanding of judicial activism, “activism” is not identical to “intervention.”
Instead, courts can also be activist by not intervening. This would be the case if a competent
court did not invalidate a procedurally or substantively unconstitutional constitutional
amendment. Such a case displays judicial activism, since the respective court follows a
specific, counter-constitutional policy line.

Applying this framework, I will examine whether the application of constitutional

entrenchment clauses by courts contributes to the protection of democratic constitutionalism,

52
Sergio Bartole, Organizing the Judiciary in Central and Eastern Europe, 7 EAST EUR. CONST. REV. 1, 62–69
(1998).
– 12 –
or endangers the people’s democratic right of self-government.53 Of course, these substantive
assessments are anything but beyond doubt, since “the line between proper judicial review
and judicial activism depends on the speaker’s understanding of the Constitution.”54
Nevertheless, the approach seems reasonable, because it reveals the “democratic
compatibility” of constitutional review. Assessing a judgment as an activist intervention thus
only means that it is not clear how a non-intervention would have endangered the respective
democratic constitutional order. Likewise, classifying a decision as an activist non-
intervention merely signifies that an intervention would have circumvented concrete
encroachments on democratic constitutionalism.

3. Data

This study is based on a comprehensive dataset of constitutional and supreme court decisions
on constitutional amendments in all 49 European countries from 1945 up to 2016. The
decisions were searched at the online databases of the courts, national law gazettes, and in the
scientific literature on individual courts and on unconstitutional constitutional amendments. In
several cases, I have additionally consulted national legal experts in order to prove the results
of the data collection.55 Decisions on national statutory legislation and international treaties
are included, if and where the claimants and/or the judges argue that the challenged norms
might fall under the protection of a constitutional entrenchment clause. Excluded from the
survey are countries without an entrenched constitution, that is, Spain before 1978, and the
United Kingdom, and authoritarian regimes, whose courts do not enjoy even a modicum of
autonomy. This applies to all socialist countries (1945–1991), as well as to Greece (1968–
1975) and Portugal (1945–1976).56 Post-socialist states have all been included regardless of
their level of democracy, since many of their constitutions contain entrenchment clauses.

As mentioned at the outset, entrenchment clauses can have different degrees, that is, they
either constrain or prohibit amendments to certain parts of a constitution, or under certain
circumstances. These clauses can be further differentiated according to their scope: they apply

53
See Diamond, supra note 16.
54
Kmiec, supra note 26 at 1466.
55
See note *. The information on constitutional entrenchment clauses is taken from Hein, supra note 25.
Although individual court decisions might still be missing in the dataset, a systematic selection bias is highly
unlikely.
56
Although there were no relevant court decisions in the mentioned countries and periods, including them in this
study would have biased the results of the quantitative estimates.
– 13 –
generally, in other words, for any amendment initiative; they are valid temporally, that is, for
a limited period; or they apply situationally, in other words, under certain “extra-
constitutional” circumstances. These are situations that might be regulated in the constitution,
but whose appearance cannot be constitutionally determined. When these two dimensions are
combined, six types of entrenchment clauses emerge (see Table 1).57

Table 1: Structural typology of constitutional entrenchment clauses.

degree \ scope General Temporal Situational
of entrenchment
prohibition of (1) general prohibition (3) temporal prohibition (5) situational
amendments of amendments of amendments prohibition of
amendments
constraint on (2) general constraint (4) temporal constraint (6) situational
amendments on amendments on amendments constraint on
amendments

In the 49 countries under study, there are 22 constitutions with a general prohibition of
amendments (or “eternity clause”, “unamendable provision,” or “super-entrenchment
clause”58), 21 constitutions with a general constraint on amendments, five constitutions with a
temporal prohibition, two constitutions with a temporal constraint, 17 constitutions with a
situational prohibition, and two constitutions with a situational constraint. With regard to
unconstitutional constitutional amendments, both temporal and situational entrenchment
clauses play no role in even one single court decision. In the case of temporal clauses, their
low number might cause this. Concerning the situational clauses, this result indicates that the
studied period is characterized in most parts of the continent by peace and only brief states of
emergency.59 Therefore, all the following considerations and results exclusively refer to the
two general types of entrenchment clauses.

57
See Michael Hein, Impeding Constitutional Amendments: Why Are Entrenchment Clauses Codified in
Contemporary Constitutions?, 54 ACTA POLITICA 1–29, 3–4 (2019, OnlineFirst),
https://link.springer.com/article/10.1057/s41269-018-0082-4 (last visited September 12, 2018).
58
Suber, supra note 8 at 129.
59
In addition, the constitutions valid during the Yugoslav wars as well as the Armenian and Azerbaijani
constitutions of 1995 do not contain situational prohibitions of amendments.
– 14 –
4. Do constitutional entrenchment clauses matter?

In the 49 countries (with 63 constitutions) studied from 1945 up to 2016, the constitutional or
supreme courts issued 154 decisions on the constitutionality of (potential) constitutional
(draft) amendments. These decisions stem from 21 countries; that is, 28 European countries
did not see any review of constitutional amendments. In 44 decisions (28.6%), amendments
were declared unconstitutional completely or partially, whereas 110 decisions (71.4%)
accepted the respective amendment entirely. The majority of all such decisions (137 of 154
cases, 89.0%) were taken in countries, whose constitutions contained an entrenchment clause
at the time of the decision. In contrast, constitutional and supreme courts, which did not have
an entrenchment clause at their disposal, ruled on the constitutionality of amendments only 17
times (11.0%). Calculated in cases per country and year (country-year observations), this
means that court decisions appear in countries with entrenchment clauses 6.68 times as often
as in countries without such clauses. In geographical terms, constitutional amendments were
struck down exclusively in ten Central and Eastern European countries. These include eight
post-socialist states, Turkey, and only one long-established democracy (Austria).

Likewise, invalidation of amendments is an almost “exclusive business” of courts, which have

an entrenchment clause at their disposal (see Figure 1). With only one exception,60
amendments were struck down by courts in countries, whose constitutions contained an
entrenchment clause at the time of the decision (43 decisions, 97.7%). In country-year
observations, amendment invalidations appear in countries with entrenchment clauses 35.66
times as often as in countries without such provisions. Of the 43 invalidations studied, 38
were actually taken on the basis of an entrenchment clause, whereas four decisions were made
on procedural grounds,61 and one decision was based on the supremacy of international law
over national constitutional law.62 In sum, the described empirical pattern matches the
theoretical expectation very clearly: constitutions with entrenchment clauses are accompanied
by considerably higher numbers of court decisions on constitutional amendments and a much
higher share of annulled amendments compared to constitutions without entrenchment
clauses.

60
Constitutional Court of Hungary, Decision of December 29, 2012, No. 45/2012.
61
Constitutional Court of Turkey, Decision of June 16, 1970, No. 1970/31, 8 AMKD 313 (1970); Constitutional
Court of Moldova, Advisory Opinion 1/1998, June 6, 1998; Constitutional Court of Romania, Decision of April
27, 2000, No. 82/2000; Constitutional Court of Lithuania, Ruling of January 24, 2014, Case No. 22/2013.
62
Constitutional Court of Moldova, Advisory Opinion 3/1999, May 11, 1999.
– 15 –
 Figure 1: Entrenchment clauses and invalidated constitutional amendments
in Europe (1945–2016).

The differentiation between general prohibitions of and general constraints on amendments

also shows an interesting result. Whereas the number of court decisions based on general
prohibitions (N=105) almost equals those based on general constraints (N=99), the number of
amendment invalidations based on the former type of entrenchment clauses (N=34) is
considerably higher than those based on the latter (N=6). Calculated in country-years, general
prohibitions of amendments appear as the basis of invalidations of (potential) constitutional
(draft) amendments 3.95 times as often as general constraints.

The reason for this is not as obvious as it might seem. One might argue that in case of eternity
clauses, political actors can only choose between refraining from a possibly unconstitutional
amendment and risking a court decision. In contrast, general constraints open a third path:
safely amending the constitution by clearing the higher hurdles set by those clauses. If this
were the main reason for the revealed pattern, however, there would be not only less
amendment invalidations, but also fewer cases before the courts with regard to general
constraints compared to general prohibitions. Therefore, strategic considerations of the
political actors are not able to explain the observed pattern. The answer might lie, instead, in
a strategic consideration of the courts, according to which declaring an “ordinary” amendment
unconstitutional by referring to a general constraint on amendments might only postpone, but
not obstruct the respective amendment. In other words, general constraints do not provide the

– 16 –
courts an absolute veto position, but place them in a politically rather imponderable situation.
This might explain courts’ reluctant behavior in this regard.

As expected, the five countries whose constitutional courts are obliged to review ex officio
and a priori all constitutional draft amendments show high numbers of court proceedings. As
Figure 2 displays, 87 of all studied 154 court decisions were taken in those five countries
(Azerbaijan, Kosovo, Moldova, Romania and Ukraine) and led to 30 amendment
invalidations. The 44 remaining countries (with 58 constitutions) show only 66 court
decisions with 14 interventions. The calculation in country-years reveals the strength of this
correlation: in the countries with ex officio a priori review, the number of court decisions per
year is 22.31 times higher, and the number of invalidations is even higher at 44.46 times more
than in the remaining group of states. As expected, the courts in the former group of countries
are not only restricted and negative, but effective, positive “legislators” in constitutional
politics.

Figure 2: Entrenchment clauses and invalidated constitutional amendments

in Europe (1945–2016): ex officio a priori review vs. review on request.

Finally, I have assumed growing numbers of court decisions on constitutional amendments,

and increasing shares of annulled amendments over time. As Figure 3 demonstrates, this
assumption holds true as well. Before 1996, only 23 relevant court decisions are recorded,

– 17 –
whereas 131 decisions have been taken since then. Likewise, only four of the 44 amendment
invalidations were decided upon before 1996—all of them in one country (Turkey). In
statistical terms, the number of constitutions with general entrenchment clauses and the
number of court decisions on the constitutionality of constitutional amendments, both per
year, correlate highly significantly (Pearson’s r=0.80; significant at the 0.001 level). This
pattern confirms the general observation of a global trend towards the expansion of judicial
power. In addition, it also strongly indicates that entrenchment clauses have been the main
catalyst for the judicialization of constitutional politics in that field.

Figure 3: Constitutional entrenchment clauses and court decisions on constitutional

amendments in Europe over time (1945–2016).

In sum, the presented results show that general entrenchment clauses do matter for the
constitutional review of constitutional amendments. Increasingly, and particularly since the
mid-1990s, constitutional and supreme courts have been deciding on the constitutionality of
amendments. Entrenchment clauses are the main instrument that those courts use as criteria in
their decisions, and one type of procedure—the ex officio and a priori review of constitutional
amendments—additionally fosters the courts’ activity in that field.

– 18 –
5. How do constitutional entrenchment clauses matter?

After having demonstrated that constitutional entrenchment clauses do matter for the
constitutional review of constitutional amendments, this section will examine how they do so.
As outlined in the second section of this article, I assess those 130 of the 154 court decisions
under study, where general entrenchment clauses were present in the argumentation of the
plaintiffs and/or in the court decision. In order to illustrate my substantive assessments, I will
first present a detailed analysis of eight selected court decisions, covering all parts of Europe
and showing typical case configurations. These comprise four examples of judicial restraint
(two interventions and two non-interventions), and four examples of judicial activism
(likewise two interventions and two non-interventions).

5.1 Entrenchment clauses and judicial restraint: four typical cases

On September 10, 2009, the Czech Constitutional Court annulled a constitutional amendment
that would have shortened the ongoing term of office of the Chamber of Deputies—the lower
house of the Czech parliament.63 The amendment had been designed to enable snap elections
after the Chamber had dismissed the Government by a no-confidence vote. The Constitution
did not, yet, contain a right of self-dissolution for the Chamber.64 By means of an individual
complaint, the Deputy Miloš Melčák challenged the amendment before the Constitutional
Court. He argued that the dissolution of parliament affects his constitutional right to
participate in the administration of public affairs.65

The Court upheld Melčák’s claim with a 13-to-2 vote, albeit for different reasons. First, it
stated that an ad hoc constitutional amendment, which regulates an individual instance
divergently from the general constitutional rules instead of amending those rules, breaches
“the essential requirements for a democratic state governed by the rule of law”, which are
unamendable principles of the Czech constitution.66 The same holds true, second, for the
retroactivity of the amendment. Almost all political actors criticized the court ruling and
claimed that the Court had exceeded its competence and deepened the political crisis.67

63
Constitutional Court of the Czech Republic, Decision Pl. ÚS 27/09, September 10, 2009.
64
Ivo Šlosarčik, Czech Republic 2009-2012: On Unconstitutional Amendment of the Constitution, Limits of EU
Law and Direct Presidential Elections, 19 EUR. PUB. L. 435–448, 437 (2013).
65
Article 21, para 1 Czech Charter of Fundamental Rights and Basic Freedoms of December 16, 1992.
66
Article 9, para 2 Constitution of the Czech Republic of December 16, 1992.
67
Šlosarčik, supra note 64 at 438.
– 19 –
Nevertheless, the parliament accepted the decision and adopted a new, “regular” amendment
law, which introduced a right of self-dissolution for the Chamber of Deputies into the
Constitution. Because of the “fear of another constitutional challenge (based on a retroactivity
argument)”68, the next elections nonetheless took place on their regular date in May 2010.

This decision is an almost ideal-typical example of a restrained intervention. The struck-down

amendment breached several “essential requirements for a democratic state governed by the
rule of law” as protected by the Czech constitution, in particular, popular sovereignty, and the
prohibition of retrospective legislation, which is a key element of the rule of law.69
Nonetheless, the court did not intervene as to the substance of the amendment (allowing the
Chamber of Deputies to dissolve itself), demanding only that the introduction of this
possibility had to abide by the mentioned basic constitutional principles. The judgment thus
forced the parliament to introduce a regular solution for similar future situations of political
deadlock.70

A somewhat similar example of a restrained intervention is a 2010 decision of the Ukrainian

Constitutional Court. As mentioned above, the Ukrainian Court has to issue ex officio its
“opinion” on any constitutional amendment proposal before the parliament can debate it.71 In
early 2010, the Ukrainian parliament proposed extending the legislative periods of the local
councils and the Crimean regional parliament from four to five years. In addition, it mooted a
transitional provision that envisaged postponement of the next local and regional elections
from March 2010 to March 2011 in order to apply the extension to the ongoing legislative
periods.

Although the Constitutional Court generally accepted the extension of the legislative periods,
it saw in the envisaged extension of the current terms of office an unconstitutional restriction
of the citizens’ electoral rights protected by the eternity clause in the Ukrainian Constitution.72
The parliament accepted this decision and adopted the amendment without the controversial
transitional provision. The court decision thus preempted a breach of the constitutional

68
Id.
69
Article 1, para 1, and article 2, para 1 Constitution of the Czech Republic of December 16, 1992.
70
For a more critical assessment of the judgment, see Yaniv Roznai, Legisprudence Limitations on
Constitutional Amendments? Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional
Constitutional Act, 8 ICL J. 29–57 (2014).
71
Article 159 Constitution of Ukraine of June 28, 1996.
72
Article 157 Constitution of Ukraine of June 28, 1996; Constitutional Court of Ukraine Opinion of June 17,
2010, No. 2-v/2010.
– 20 –
entrenchment clause. As in the Czech example, the court did not interfere with the substance
of the amendment, but only banned its retroactive effect.

Typical examples of restrained non-interventions in constitutional politics can be found

among several judgments on European Union law. In 1992, for instance, the Spanish
Government requested the Constitutional Tribunal to rule on the compatibility of Article 8 B,
sec 1, of the not yet ratified “Maastricht Treaty” with Article 13.2 of the Spanish
Constitution.73 The Treaty assigned every EU citizen “the right to vote and to stand as a
candidate at municipal elections in the Member State in which he resides”, whereas the
mentioned article of the Spanish Constitution gave foreigners “in cases which may be
established by treaty or by law” only the active voting right on the local level. In its decision,
the Constitutional Tribunal stated that both Article 1.2 of the Spanish Constitution, by virtue
of which “national sovereignty belongs to the Spanish people”, and Article 23, which states
that only “citizens have the right to participate in public affairs”, may also be affected by the
Maastricht Treaty.74 The court thus considered two provisions, which are protected by the
general constraint on amendments in Article 168 of the Spanish Constitution.

Nevertheless, the Tribunal ruled that “recognizing a given group or category of foreigners the
right to stand as candidates in municipal elections” does not affect the proclamation of
national sovereignty.75 Likewise, it does not impair Spaniards’ right to participate in public
affairs, since Article 23 “does not contain any provision that excludes foreigners from access
to public office and functions.”76 The Tribunal only recognized the obvious contradiction with
(the not additionally entrenched) Article 13.2 of the Spanish Constitution and decided that it
had to be amended before parliament was allowed to ratify the Maastricht Treaty.

In 2012, the Estonian Chancellor of Justice challenged the constitutionality of the Treaty
establishing the European Stability Mechanism (TESM).77 He particularly argued that Article
4, para 4 TESM is “in conflict with the principle of parliamentary democracy arising from §
1(1) and § 10 of the Constitution.”78 § 1 of the Estonian Constitution, which defines Estonia
as an “independent and sovereign democratic republic”, is protected by a general constraint

73
Treaty on European Union of February 7, 1992; Constitution of Spain of December 29, 1978.
74
Constitutional Tribunal of Spain, Declaration of July 1, 1992, No. 1/1992.
75
Id.
76
Id.
77
Treaty Establishing the European Stability Mechanism (TESM) of February 2, 2012.
78
Supreme Court of Estonia, Judgment 3-4-1-6-12 of July 12, 2012, para 4; Constitution of Estonia of June 28,
1992.
– 21 –
on amendments.79 The challenged provision of the TESM provides that in certain cases of
urgency, a decision on providing stability support to a TESM member may be adopted by a
qualified majority of 85% of the votes cast instead of a unanimous decision of all contracting
states. Since the weight of Estonia’s vote is only 0.186%, neither the Estonian parliament nor
the government would be able to prevent such a decision affecting the Estonian state budget.

In a 10-to-9 majority decision, the Supreme Court narrowly rejected the claim of the
Chancellor of Justice.80 The key argument of the judgment was that by ratifying the TESM,
the Estonian parliament agreed to a certain authorized capital stock with an Estonian
subscription of € 1.32 billion. Article 8, para 5 TESM clearly states: “The liability of each
ESM Member shall be limited, in all circumstances, to its portion of the authorized capital
stock at its issue price.” Therefore, the Court pointed out that the TESM does not constitute a
breach of Estonia’s sovereignty or the budgetary sovereignty of the parliament, but only a
limited financial obligation, which cannot be expanded without Estonia’s consent.81

5.2 Entrenchment clauses and judicial activism: four typical cases

Several court decisions taken ex officio and a priori in Azerbaijan, Kosovo, Moldova,
Romania and Ukraine follow a judicial activism approach and illegitimately restrict the
people’s democratic right of self-government. A typical example for an activist intervention
can be found in the Ukraine. In 2000, President Leonid Kučma initiated a constitutional
reform in order to strengthen his political position. Among others, the draft amendment
envisaged the introduction of a second parliamentary chamber, the abolition of
parliamentarians’ immunity, the reduction of their number from 450 to 300, and a right of the
President to dissolve parliament under certain conditions.

The Constitutional Court rejected the draft amendment without considering the proposed
changes in detail, stating that the amendment would cause manifold contradictions within the
constitution.82 Therefore, the Court argued to be unable to assess the possible consequences of
the amendment for human and citizens’ rights and freedoms, which are protected by the

79
Article 162 Constitution of Estonia of June 28, 1992.
80
Supreme Court of Estonia, supra note 78; see Merike Saarmann, “A Cup of Financial Stability, Please!” The
ESM Judgment of the Estonian Supreme Court, 4 TIJDSCHRIFT VOOR CONSTITUTIONEEL RECHT 163–170 (2013).
81
Supreme Court of Estonia, supra note 78, paras 101 and 144.
82
Constitutional Court of Ukraine, Opinion of July 11, 2000, No. 2-v/2000.
– 22 –
constitutional eternity clause.83 With this move, the Court clearly overstepped the limits of
constitutional review, which confine its task to examining the constitutionality of
constitutional amendments, not their quality. As Ulrich K. Preuss put it:

Whoever is authorized to amend the constitution is entitled to introduce substantive provisions that
contradict other clauses of the constitution […]. In the absence of an unequivocal collision rule, it is
the task of the authoritative interpreter of the constitution—most frequently the Constitutional Court—
to find a consistent interpretation of it on a case-by-case basis.84

Whereas a restrained court could have commented on the draft’s quality and made
recommendations for their improvement,85 the invalidation of an entire draft amendment due
to alleged, possible breaches of the eternity clause is clear-cut judicial activism. The court
overstepped its competencies, since the constitution prohibits amendments that “foresee” (not:
might eventually result in) “the abolition or restriction of human and citizen rights and
freedoms”86.

Another example of an activist intervention is the “headscarf decision” of the Turkish

Constitutional Court mentioned at the beginning of this article.87 In early 2008, the Turkish
parliament adopted a constitutional amendment, which allowed for the abolishment of the
headscarf ban in universities. The Constitutional Court invalidated this amendment following
a request by a group of oppositional deputies. In doing so, the Court overstepped its
competencies, since Article 148 of the Turkish Constitution entitles the Court to review
constitutional amendments only regarding their procedural correctness.88 The Constitutional
Court disregarded this restriction by stating that reviewing whether an amendment proposal
complies with the constitutional eternity clause is nothing but examining the proposal’s
formal “validity”. Ergun Özbudun calls this an “‘usurpation of power’ since it is in violation
of the explicit text of Article 148.”89

In addition, the Court interpreted the unamendable constitutional principle of secularism90 not
mainly as an obligation of the state to religious neutrality and the protection of individual

83
Article 157 Constitution of Ukraine of June 28, 1996.
84
Ulrich K. Preuss, The Implications of “Eternity Clauses”: The German Experience, 44 ISR. L. REV. 429–448,
432 (2011).
85
For such an approach, see, e.g., Constitutional Court of Romania, Decision of April 7, No. 80/2014.
86
Article 157 Constitution of Ukraine of June 28, 1996.
87
Constitutional Court of Turkey, supra note 1.
88
Article 148, paras 2–3 Constitution of the Republic of Turkey of November 7, 1982.
89
Özbudun, supra note 2 at 537.
90
Article 4 Constitution of the Republic of Turkey of November 7, 1982.
– 23 –
religious freedom. Instead, it argued that the individual right to wear religious symbols in
public, when exercised “in classes or laboratories where students’ attendance is compulsory,
[…] has the potential to turn into an instrument of pressure on individuals with different
beliefs, political views or lifestyle choices.”91 This argument is hardly convincing. As Yaniv
Roznai and Serkan Yolcu put it: “The wearing of religious symbols reflects the choice of
individuals to adhere to their cultural and religious identity when entering the public sphere; it
has no bearing on the secularism principle enshrined in a constitution.”92 The Court thus
enforced its specific vision of the Turkish state, although this was substantially not the only
plausible and legitimate interpretation of the constitution, and the Court was clearly
procedurally not entitled to do so.

A typical example of an activist non-intervention is one of the few judgments issued before
1996. In 1968, Article 10, para 2 of the (West) German Basic Law93 regulating the privacy of
correspondence, posts and telecommunications was amended. The amendment allowed
specific restrictions of this fundamental right in order “to protect the free democratic basic
order or the existence or security of the Federation or of a Land”. In such cases, the
wiretapped person does not have to be informed of this act and “recourse to the courts shall be
replaced by a review of the case by agencies and auxiliary agencies appointed by the
legislature.” Two citizens and the government of the Land of Hesse challenged this
amendment before the Federal Constitutional Court. They argued that the possibility of secret
wiretapping and the replacement of judicial by administrative review of surveillance measures
infringe the fundamental principles of human dignity and the rule of law, which are
unamendable principles according to Article 79, para 3 of the Basic Law.94

In a controversial decision, the Court rejected the claims of the plaintiffs by a 5-to-3
majority.95 The Court argued that the amendment has to be interpreted in line with the
proportionality principle.96 Wiretapping is only permissible if no other means are available,
and a wiretapped person has to be informed in retrospect, if the free democratic basic order or

91
Constitutional Court of Turkey, supra note 1.
92
Roznai and Yolcu, supra note 2 at 204.
93
Basic Law of the Federal Republic of Germany of May 23, 1949.
94
Article 79, para 3 Basic Law of the Federal Republic of Germany of May 23, 1949. To be precise, Article 146
allows for the adoption of a new constitution “freely adopted by the German people”. Thus, Article 79, para 3 de
facto worked as an unamendable provision before the German reunification in 1990, and has been working as a
general constraint on amendments ever since.
95
Federal Constitutional Court of Germany, Judgment of the Second Senate of December 15, 1970; BVerfGE
30, 1.
96
Gertrude Lübbe-Wolff, The Principle of Proportionality in the Case-Law of the German Federal
Constitutional Court, 34 HUM. RTS. L. J. 12–17 (2014).
– 24 –
the existence or security of the Federation or of a Land is no longer at risk. In addition, the
Court demanded the administrative review to be “substantively and procedurally equivalent to
judicial control”97 in order to not breach the principles of the separation of powers and the
rule of law. By that interpretation, the majority of the judges came to the result that the
amendment was constitutional. However, as the three dissenting judges pointed out,98
replacing recourse to the courts with a review by a politically appointed and controlled organ
is as such an encroachment on two unamendable principles: the separation of powers and the
rule of law.99

The same holds true for a recent ex officio a priori decision of the Azerbaijani Constitutional
Court. Judicial independence is generally absent in the personalistic regime of President Ilham
Aliyev (in power since 2003) and his New Azerbaijan Party, who control the appointment of
the Constitutional Court judges.100 In 2016, Aliyev initiated a constitutional reform, which
was primarily targeted at strengthening his rule, among others by introducing two restrictions
on basic rights. First, the freedom of assembly was limited to meetings, demonstrations, etc.,
“provided that public order and public morals are not violated.”101 This enabled the
administration de facto to suppress any oppositional usage of this right. Second, the total ban
on deprivation of citizenship was abolished and deprivation of citizenship was enabled in the
framework of an ordinary law.102 Both changes constituted clear breaches of the constitutional
eternity clause, which declares any “restrictions or the abolition of the rights and liberties of
man and citizen” inadmissible.103 However, the Court followed the political positions of the
governing forces instead of taking the constitution seriously.104

5.3 Judicial restraint, judicial activism, and constitutional entrenchment clauses

Table 2 shows the results of the substantive analysis of all 130 cases, in which European
constitutional or supreme courts ruled on the constitutionality of constitutional amendments

97
Federal Constitutional Court of Germany, supra note 95 at 23.
98
Id., 33.
99
Article 79, para 3 Basic Law of the Federal Republic of Germany of May 23, 1949.
100
Shahla Sultanova, Challenging the Aliyev Regime: Political Opposition in Azerbaijan, 22
DEMOKRATIZATSIYA 15–37 (2014); Andrea Kendall-Taylor, Purchasing Power: Oil, Elections and Regime
Durability in Azerbaijan and Kazakhstan, 64 EUR.-ASIA STUD. 737–760 (2012).
101
Article 49, para 2 Constitution of Azerbaijan of November 23, 1995.
102
Article 53, para 1 Constitution of Azerbaijan of November 23, 1995.
103
Article 155 Constitution of Azerbaijan of November 23, 1995.
104
Constitutional Court of Azerbaijan, Decision of July 25, 2016.
– 25 –
based on constitutional entrenchment clauses. As is evident, the vast majority of court rulings
are assessed as complete or partial restrained non-interventions (N=108). The courts passed
the respective amendment laws, because they neither violated the constitutional amendment
procedure, contradicted international law, nor breached a constitutional principle or provision
protected by an entrenchment clause. Thus, constitutional review of those (potential)
constitutional (draft) amendments did not essentially change the legal and political
situation.105 Four other decisions are assessed as complete or partial activist non-interventions
(N=4). Here, the courts restrained themselves from invalidating the reviewed constitutional
amendments, although they (would have) breached a constitutional entrenchment clause.
Whereas two draft amendments failed to find the necessary parliamentary majority later on,106
the other two became or remained established constitutional law.107

In contrast, only 11 decisions are assessed as complete or partial restrained interventions.

With these rulings, the respective courts struck down obvious substantive encroachments on a
constitutional entrenchment clause. They thus effectively contributed to the protection of
democratic constitutionalism. However, almost three times as many decisions are complete or
partial activist interventions (N=30), where the courts illegitimately interfered with the
constitutional amending power. Interestingly, the difference between general prohibitions of
amendments and general constraints on amendments does not seem to matter here: based on
general prohibitions, 27 activist and 10 restrained interventions are recorded; and based on
general constraints, five activist interventions face one restrained intervention. These ratios do
not indicate that one of these types of entrenchment clauses fosters judicial activism to a
greater extent than the other type.

105
Of course, confirming the constitutionality of an amendment might strengthen the political position of the
drafting actors (for instance the governing majority vis-à-vis the opposition), or clarify the legal situation by
removing legal doubts.
106
Constitutional Court of Romania, supra note 85; Constitutional Court of Moldova, Advisory Opinion 2/2016,
March 16, 2016.
107
Federal Constitutional Court of Germany, supra note 95; Constitutional Court of Azerbaijan, supra note 104.
– 26 –
Table 2: Judicial activism and judicial restraint in court decisions on the constitutionality of
constitutional amendments based on constitutional entrenchment clauses in Europe (1945–
2016).

(Potential) constitutional (draft) amendment violated constitutional amendment

procedure, contradicted supreme international law and/or breached a constitutional
entrenchment clause; if yes, court competencies not overstepped

Yes No

yes restrained intervention: activist intervention:

● Austria 2001
● Czech Republic 2009a
● Moldova 2002a (partly)
● Romania 1996, 2003a
(partly), 2011 (partly),
2014 (partly)
● Ukraine 1999a (partly),
2008a (partly), 2010a
(partly), 2010b (partly)
● Bulgaria 2003, 2005 (partly), 2006a
● Kosovo 2012a (partly), 2012b (partly), 2012c
(partly), 2015a
● Moldova 1997 (partly), 1999a (partly), 2002b
(partly), 2008a, 2008b, 2016a, 2016b, 2016c
● Romania 2011 (partly), 2014 (partly)
● Turkey 1975, 1976b, 1977a, 1977b, 2008, 2010
(partly)
● Ukraine 2000b, 2001a (partly), 2002, 2003a, 2010a
(partly), 2010c, 2012a

no activist non-intervention: restrained non-intervention:

● Azerbaijan 2016 ● Austria 1948; 1952, 1988, 1994, 1998, 2005, 2008a,
● Germany 1970 2008b, 2010a, 2010b, 2016
● Moldova 2016h (partly) ● Azerbaijan 2002, 2008
● Romania 2014 (partly) ● Bulgaria 2004, 2005 (partly), 2006b, 2015
● Czech Republic 2008, 2009b
Invalidation of ● Estonia 2012
(potential) ● France 2003
constitutional ● Germany 1991, 1996a, 1996b, 2004, 2009, 2011,
(draft) 2012
amendment by ● Italy 1988
the court ● Kosovo 2012a (partly), 2012b (partly), 2012c
(partly), 2013, 2014, 2015b
● Moldova 1995a, 1995b, 1997 (partly), 1999a
(partly), 1999b, 1999d, 1999e, 1999f, 2000a, 2000b,
2000c, 2001a, 2001b, 2002a (partly), 2002b
(partly), 2002c, 2002d, 2004, 2005, 2006, 2010a,
2010b, 2010c, 2011, 2014, 2015a, 2015b, 2016d,
2016e, 2016f, 2016g, 2016h (partly)
● Norway 1991
● Romania 2003a (partly), 2003b, 2003c, 2011
(partly), 2014 (partly), 2016
● Spain 1992, 2004
● Turkey 1971, 1976a, 1987, 2007a, 2007b, 2010
(partly), 2016
● Ukraine 1999a (partly), 1999b, 2000a, 2000c,
2000d, 2001a (partly), 2001b, 2003b, 2003c, 2004a,
2004b, 2005, 2008a (partly), 2008b, 2008c, 2010a
(partly), 2010b (partly), 2010d, 2012b, 2013a,
2013b, 2015a, 2015b, 2016a, 2016b

All in all, these results disprove the optimistic assumption that courts predominantly apply
constitutional entrenchment clauses in order to protect democratic constitutionalism.
Excluding the restrained non-interventions from consideration (because democratic

– 27 –
constitutionalism was not endangered in those cases), there are altogether 33108 activist
decisions, which either themselves negatively affected some essential principle of democratic
constitutionalism, or where the respective court refrained from a necessary intervention. In
contrast, the courts intervened restrainedly only in 11 decisions. This pattern speaks strongly
against the expectation that the introduction of constitutional entrenchment clauses leads to a
higher level of protection of democratic constitutionalism—at least regarding their usage by
courts when deciding on the constitutionality of constitutional amendments.

This holds particularly true for the post-socialist countries in Central and Eastern Europe. At
first glance, one is inclined to accept Yaniv Roznai’s assumption that “in post-communist
states, the enforceability of explicit unamendability [by courts] is vital for protecting
constitutionalism.”109 And yet, empirically the opposite is true: whereas only 18.4% of all
court decisions taken outside post-socialist Europe are cases of judicial activism,110 this share
amounts to 23.5% in the post-socialist countries. When calculating this number without the ex
officio a priori review, which is only available in Central and Eastern Europe and could
therefore strongly bias the result, the share of activist decisions in post-socialist Europe rises
further to 31.3%. Thus, in the field of constitutional politics, the high hopes placed on
constitutional courts for the consolidation of post-socialist democracies111 seem to have been
belied by highly politicized courts. Moreover, there is only one amendment invalidation at all
recorded in a longer-established European democracy: a restrained intervention in Austria.112
Obviously, entrenchment clauses are not necessary to protect consolidated democracies,
whereas in post-autocratic contexts, specific instruments for the protection of the young
democratic regimes might be welcome, but entrenchment clauses fail to fulfill this function in
an unambiguous manner.

5.4 Constitutional entrenchment clauses and implicit limitations on amendments

In contrast to several other world regions, European constitutional and supreme courts have
developed and applied theories of implicit limitations on constitutional amendments very

108
Not 34, since Romania (2014) appears partly as activist intervention and as activist non-intervention.
109
Roznai, supra note 7 at 206.
110
Calculated without Turkey, this share even amounts to 4.0% only.
111
Kim Lane Scheppele, Democracy by Judiciary. Or, Why Courts can be More Democratic than Parliaments,
in RETHINKING THE RULE OF LAW AFTER COMMUNISM 25–61 (Adam Czarnota, Martin Krygier, & Wojciech
Sadurski eds., 2005).
112
Constitutional Court of Austria, Decision of March 10, 2001; VfSlg 16327.
– 28 –
rarely.113 Among all 49 studied countries, such theories have been developed and applied only
on two occasions. First, the Turkish Constitutional Court argued in a 1971 judgment that
beside the explicit ban on changing the republican form of government,114 “constitutional
amendments must be in conformity with the ‘requirements of contemporary civilization’ and
that they must not damage the ‘coherence and system of the constitution’.”115 However, the
Court did not uphold these implicit amendment limitations in its later judgments.

Second, the Italian Constitutional Court claimed in a 1988 judgment that the Constitution of
Italy, likewise in addition to the explicitly unamendable republican form of government, 116
“contains some supreme principles that cannot be subverted or modified in their essential
content.”117 In particular, the Court mentioned the fundamental rights and freedoms, and the
Concordat with the Catholic Church. Interestingly—and contradicting the theoretical
expectation—both instances of implicit amendment bans appeared in countries with
constitutional entrenchment clauses. Overall, however, implicit limitations on constitutional
amendments have played no decisive role in European constitutional review, not least because
in both the Turkish and the Italian cases the courts did not invalidate the challenged
constitutional amendments.118

6. Conclusion

Constitutional entrenchment clauses have become a “vastly important element of modern

constitutional design.”119 Today, they are common in every world region and in all types of
political regimes: approximately four out of every five national constitutions valid at the end
of 2015 contained some kind of entrenchment clause.120 Against the background of this

113
According to Yaniv Roznai , supra note 7 at 42–70, such theories have been developed and applied by
constitutional and supreme courts of 12 non-European countries (Argentina, Bangladesh, Belize, Colombia,
Costa Rica, India, Kenya, Malaysia, Pakistan, Peru, Taiwan and Thailand).
114
Article 9 Constitution of the Republic of Turkey July 9, 1961.
115
Gözler, supra note 9 at 96–97; Constitutional Court of Turkey, Decision of April 3, 1971, No. 1971/37; 9
AMKD 416 (1971).
116
Article 139 Constitution of Italy of December 27, 1947.
117
Constitutional Court of Italy, Judgment of December 15, 1988, No. 1146; translation quoted from Roznai,
supra note 7 at 151.
118
In an obiter dictum to its 1951 Southwest State decision (BVerfGE 1, 14), the German Federal Constitutional
Court also proposed the existence of implicit limitations on constitutional amendments. However, the Court has
not continued, but instead explicitly rejected this argumentation in all its later judgments on the constitutionality
of constitutional amendments; see Gözler, supra note 9 at 83.
119
Andrew Friedman, Dead Hand Constitutionalism: the Danger of Eternity Clauses in New Democracies, 4
MEX. L. REV. 77–96, 79 (2010).
120
Hein, supra note 14.
– 29 –
prevalence, this article has shown for European constitutional states that entrenchment clauses
are not just symbolic declarations without legal and political consequences, but important
instruments in constitutional struggles. This holds particularly true for eternity clauses, which
not only constrain, but generally prohibit certain amendments. In this context, it is noteworthy
that the political actors accepted almost all amendment invalidations decided upon by
constitutional or supreme courts.121

However, the analysis has also revealed that constitutional entrenchment clauses are a double-
edged sword—at best. The majority of court decisions on the constitutionality of
constitutional amendments, where the plaintiffs’ claims and/or the court decisions were based
on entrenchment clauses, have been characterized as restrained non-interventions (N=108).
This means that the reviewed constitutional amendments would not have proceeded
differently without those decisions, and this would not have negatively affected democratic
constitutionalism. In other words, the entrenchment clauses did not have any function to fulfill
(or fulfilled only a symbolic function) in those cases.

Four other court decisions have been completely or partially assessed as activist non-
interventions, that is, the courts restrained themselves from invalidating the reviewed
constitutional amendments, although those amendments breached a constitutional
entrenchment clause. In these cases, entrenchment clauses failed to fulfill their function. Even
more problematic is a third group of 30 court decisions, where the courts illegitimately
interfered with the constitutional amending power. Since those decisions themselves infringed
democratic constitutionalism, the respective entrenchment clauses even had an opposite
effect: instead of fulfilling their function, that is, protecting key elements of democratic
constitutionalism, they led to (or at least facilitated) infringement of those elements.

In the end, only 11 decisions have been assessed as restrained interventions. In these rulings,
the respective entrenchment clauses fulfilled their function, that is, they contributed to the
protection of democratic constitutionalism. Nevertheless, one may argue that if there were no
entrenchment clauses in these cases, there would have been other means to circumvent the
negative consequences for the respective constitutional orders. In nine ex officio a priori

121
In 2003, the Romanian parliament ignored a few parts of the Constitutional Court’s ex officio a priori
decision on the comprehensive constitutional reform enacted that year (Constitutional Court of Romania,
Decision of April 16, No. 148/2003); see Hein, VERFASSUNGSKONFLIKTE, supra note 13 at 371. In 2015, the
Bulgarian parliament amended the constitution in a way contradicting a Constitutional Court’s interpretation
decision issued back in 2003 (Constitutional Court of Bulgaria, Decision of April 10, No. 3/2003), but this
amendment was not challenged before the Court; see id. at 164; Hein, Bulgaria, supra note 13 at 164.
– 30 –
decisions taken in Moldova, Romania and Ukraine, the parliament or the people may have
rejected the controversial amendments in the subsequent amendment processes. In the
remaining two court decisions, one can imagine the constitutional courts to have proposed
some theory of implicit amendment limitations. In any case, the observed usage of
entrenchment clauses by European constitutional and supreme courts, particularly in the post-
socialist countries after the mid-1990s, does anything but buttress claims that such provisions
are an unambiguous instrument for the effective and efficient protection of democratic
constitutionalism. Indeed, their risks seem to outweigh the opportunities.

– 31 –
7. Appendix: Countries and court decisions studied
Constitutional Court of Albania (1992–2016)
no cases
Constitutional Tribunal of Andorra (1993–2016)
no cases
Constitutional Court of Armenia (1995–2016)
no cases
Constitutional Court of Austria (1945–2016)
Austria 1948: Decision of March 9; VfSlg 1607.
Austria 1952: Decision of December 12; VfSlg
2455.
Austria 1988: Decision of September 29; VfSlg
11829.
Austria 1994: Decision of August 30; VfSlg 13839.
Austria 1998: Decision of December 12; VfSlg
15373.
Austria 1999: Decision of September 30; VfSlg
15578.
Austria 2001: Decision of March 10; VfSlg 16327.
Austria 2005: Decision of June 18; VfSlg 17588.
Austria 2008a: Decision of June 12; VfSlg 18449.
Austria 2008b: Decision of November 7; VfSlg
18613.
Austria 2010a: Decision of June 12; VfSlg 19085.
Austria 2010b: Decision of September 27; VfSlg
19170.
Austria 2016: Decision of October 12; VfSlg
20088.
Constitutional Court of Azerbaijan (1995–2016)
Azerbaijan 2002: Decision of June 21.
Azerbaijan 2008: Decision of December 24.
Azerbaijan 2016: Decision of July 25.
Constitutional Court of Belarus (1994–2016)
no cases
Court of Cassation/Court of
Arbitration/Constitutional Court of Belgium (1945–
2016)
no cases
Constitutional Court of Bosnia and Herzegovina
(1995–2016)
no cases
Constitutional Court of Bulgaria
Bulgaria 2003: Constitutional Court Decision of
April 10, No. 3/2003.
Bulgaria 2004: Constitutional Court Decision of
July 5, No. 3/2004.
– 32 –
Bulgaria 2005: Constitutional Court Decision of
September 1, No. 8/2005.
Bulgaria 2006a: Constitutional Court Decision of
September 13, No. 7/2006.
Bulgaria 2006b: Constitutional Court Decision of
September 13, No. 8/2006.
Bulgaria 2015: Constitutional Court Ruling of
September 17, No. 3/2015.
Constitutional Court of Croatia (1990–2016)
no cases
Supreme (Constitutional) Court of Cyprus (1960–
2016)
no cases
Constitutional Court of the Czech Republic (1993–
2016)
Czech Republic 2008: Decision Pl. ÚS 19/08,
November 26.
Czech Republic 2009a: Decision Pl. ÚS 27/09,
September 10.
Czech Republic 2009b: Decision Pl. ÚS 29/09,
November 3.
Supreme Court of Denmark (1945–2016)
no cases
Supreme Court of Estonia (1992–2016)
Estonia 2012: Judgment 3-4-1-6-12 of July 12.
Supreme Court of Finland (1945–2016)
no cases
Court of Cassation/Judicial Council of France
(1946–2016)
France 1962: Decision No. 1962-20 DC, November
6.
France 2003: Decision No. 2003-469 DC, March
26.
Constitutional Court of Georgia (1995–2016)
Georgia 2010: Ruling N2/2/486, July 12.
Georgia 2012: Ruling N1/3/523, October 24.
Georgia 2013: Decision N1/1/549, February 5.
Federal Constitutional Court of Germany (1949–
2016)
Germany 1970: BVerfG, Judgment of the Second
Senate of December 15; BVerfGE 30, 1.
Germany 1991: BVerfG, Judgment of the First
Senate of April 23; BVerfGE 84, 90.
Germany 1996a: BVerfG, Order of the First Senate
of April 18; BVerfGE 94, 12.
Germany 1996b: BVerfG, Judgment of the Second
Senate of May 14; BVerfGE 94, 49.
Germany 2004: BVerfG, Judgment of the First
Senate of March 3; BVerfGE 109, 279.
Germany 2009: BVerfG, Judgment of the Second
Senate of June 30; BVerfGE 123, 267.
Germany 2011: BVerfG, Judgment of the Second
Senate of September 7; BVerfGE 129, 124.
Germany 2012: BVerfG, Judgment of the Second
Senate of September 12; BVerfGE 132, 195.
Supreme Special Court of Greece (1952–1968;
1975–2016)
no cases
Constitutional Court of Hungary (1990–2016)
Hungary 1994: Decision of April 11, No.
293/B/1994.
Hungary 1996: Decision of September 25, No.
39/1996.
Hungary 1998: Decision of February 9, No.
1260/B/1997
Hungary 2002: Decision No. 290/B/2002.
Hungary 2012: Decision of December 29, No.
45/2012.
Supreme Court of Iceland (1945–2016)
no cases
Supreme Court of Ireland (1945–2016)
Ireland 1983: Finn v. Attorney General and others
[1983] I.R. 154.
Ireland 1995: Article 26 and the Regulation of
Information (Services outside the State for the
Termination of Pregnancies) Bill 1995, In Re
[1995] IESC 9 (May 12, 1995).
Ireland 1999a: Riordan v. An Taoiseach (No. 1)
[1999] 4 IR 321.
Ireland 1999b: Riordan v. An Taoiseach (No. 2)
[1999] IESC 1 (May 20, 1999, Appeal No. 202/98).
Constitutional Court of Italy (1947–2016)
Italy 1988: Judgment of December 15, 1988, No.
1146.
Constitutional Court of Kosovo (2008–2016)
Kosovo 2012a: Assessment of May 15, Case KO
38/12.
Kosovo 2012b: Judgment of July 20, Cases KO
29/12 and KO 48/12.
Kosovo 2012c: Judgment of October 31, Case KO
61/12.
Kosovo 2013: Judgment of January 29, Case KO
09/13.
– 33 –
Kosovo 2014: Judgment of April 3, Case KO
44/14.
Kosovo 2015a: Judgment of March 16, Case No.
KO 13/15.
Kosovo 2015b: Judgment of April 15, Case No. KO
26/15.
Constitutional Court of Latvia (1993–2016)
no cases
Supreme Court of Liechtenstein (1945–2016)
Liechtenstein 2002: Decision of December 9, StGH
2002/67.
Liechtenstein 2003: Decision of February 3, StGH
2002/73.
Constitutional Court of Lithuania (1992–2016)
Lithuania 2014: Ruling of January 24, Case No.
22/2013.
Supreme Court of Justice/Constitutional Court of
Luxembourg (1945–2016)
no cases
Constitutional Court of Macedonia (1991–2016)
no cases
Constitutional Court of Malta (1964–2016)
no cases
Constitutional Court of Moldova (1994–2016)
Moldova 1995a: Advisory Opinion, April 18.
Moldova 1995b: Advisory Opinion, November 11.
Moldova 1997: Advisory Opinion No. 1/1997,
March 17.
Moldova 1998: Advisory Opinion 1/1998, June 6.
Moldova 1999a: Advisory Opinion 1/1999,
February 9.
Moldova 1999b: Advisory Opinion 2/1999,
February 18.
Moldova 1999c: Advisory Opinion 3/1999, May
11.
Moldova 1999d: Advisory Opinion 4/1999,
October 14.
Moldova 1999e: Advisory Opinion 5/1999, October
19.
Moldova 1999f: Advisory Opinion 6/1999,
November 16.
Moldova 2000a: Advisory Opinion 1/2000, July 11,
2000.
Moldova 2000b: Advisory Opinion 2/2000, July 11.
Moldova 2000c: Advisory Opinion 3/2000, July 11.
Moldova 2001a: Advisory Opinion 1/2001, January
25.
Moldova 2001b: Advisory Opinion 3/2001,
October 25.
Moldova 2002a: Advisory Opinion 1/2002,
February 12.
Moldova 2002b: Advisory Opinion 2/2002, July 30.
Moldova 2002c: Advisory Opinion 3/2002,
November 26.
Moldova 2002d: Advisory Opinion 4/2002,
November 28.
Moldova 2004: Advisory Opinion 1/2004,
December 16.
Moldova 2005: Advisory Opinion 2/2005,
September 22.
Moldova 2006: Advisory Opinion 1/2006, April 25.
Moldova 2008a: Advisory Opinion 1/2008, April 3.
Moldova 2008b: Advisory Opinion 2/2008,
December 9.
Moldova 2010a: Advisory Opinion 1/2010, April
29.
Moldova 2010b: Advisory Opinion 2/2010, May 4.
Moldova 2010c: Advisory Opinion 3/2010, July 6.
Moldova 2011: Advisory Opinion 1/2011,
November 25.
Moldova 2014: Advisory Opinion 1/2014,
September 22.
Moldova 2015a: Advisory Opinion 1/2015, July 24.
Moldova 2015b: Advisory Opinion 2/2015,
November 10.
Moldova 2016a: Advisory Opinion 1/2016,
February 29.
Moldova 2016b: Judgment No. 7 2016, March 4.
Moldova 2016c: Advisory Opinion 2/2016, March
16,.
Moldova 2016d: Advisory Opinion 3/2016, April
18.
Moldova 2016e: Advisory Opinion 4/2016, April
18.
Moldova 2016f: Advisory Opinion 5/2016, April
19.
Moldova 2016g: Advisory Opinion 6/2016, April
19.
Moldova 2016h: Advisory Opinion 7/2016,
December 6.
Supreme Court of Monaco (1945–2016)
no cases
Constitutional Court of Montenegro (2007–2016)
no cases
High Council of the Netherlands (1945–2016)
no cases
Supreme Court of Norway (1945–2016)
– 34 –
Norway 1991: Judgment of February 21; Norsk
Retstidende 156 (1991), 173.
Constitutional Tribunal of Poland (1990–2016)
no cases
Revolutionary Council/Constitutional Tribunal of
Portugal (1976–2016)
no cases
Constitutional Court of Romania (1991–2016)
Romania 1996: Constitutional Court Decision of
September 3, No. 85/1996.
Romania 2000: Constitutional Court Decision of
April 27, No. 82/2000.
Romania 2003a: Constitutional Court Decision of
April 16, No. 148/2003.
Romania 2003b: Constitutional Court Decision of
September 23, No. 356/2003.
Romania 2003c: Constitutional Court Decision of
October 15, No. 385/2003.
Romania 2011: Constitutional Court Decision of
June 17, No. 799/2003.
Romania 2014: Constitutional Court Decision of
April 7, No. 80/2014.
Romania 2016: Constitutional Court Decision of
July 20, No. 580/2016.
Constitutional Court of Russia (1993–2016)
no cases
Council of Twelve/Guarantors’ Panel on the
Constitutionality of Rules of San Marino (1974–
2016)
no cases
Constitutional Court of Serbia/Yugoslavia (1992–
2016)
no cases
Constitutional Court of Slovakia (1993–2016)
no cases
Constitutional Court of Slovenia (1991–2016)
Slovenia 1996: Decision of April 11, Case No. U-I-
332/94.
Slovenia 1998: Decision of January 29, Case No.
U-I-195/97.
Slovenia 2000: Decision of September 9, Case No.
U-I-214/00.
Constitutional Tribunal of Spain (1978–2016)
Spain 1992: Constitutional Court Declaration of
July 1, No. 1/1992.
Spain 2004: Constitutional Court Declaration of
December 13, No. 1/2004.
Supreme Court of Sweden (1945–2016) Ukraine 2001a: Constitutional Court Opinion of
no cases March 14, No. 1-v/2001.
Ukraine 2001b: Constitutional Court Opinion of
Federal Supreme Court of Switzerland (1945–2016) July 4, No. 2-v/2001.
no cases Ukraine 2002: Constitutional Court Opinion of
October 16, No. 1-v/2002.
Constitutional Court of Turkey (1945–2016)
Ukraine 2003a: Constitutional Court Opinion of
Turkey 1970: Decision of June 16, 1970, No.
October 30, No. 1-v/2003.
1970/31; 8 AMKD 313 (1970)
Ukraine 2003b: Constitutional Court Opinion of
Turkey 1971: Decision of April 3, 1971, No.
November 5, No. 2-v/2003.
1971/37; 9 AMKD 416 (1971)
Ukraine 2003c: Constitutional Court Opinion of
Turkey 1975: Decision of April 15, 1975, No.
December 10, No. 3-v/2003.
1975/87; 13 AMKD 403 (1975)
Ukraine 2004a: Constitutional Court Opinion of
Turkey 1976a: Decision of March 23, 1976, No.
March 16, No. 1-v/2004.
1976/19; 14 AMKD 118 (1976)
Ukraine 2004b: Constitutional Court Opinion of
Turkey 1976b: Decision of October 12, 1976, No.
October 12, No. 2-v/2004.
1976/46; 14 AMKD 252 (1976)
Ukraine 2005: Constitutional Court Opinion of
Turkey 1977a: Decision of January 28, 1977, No.
September 7, No. 1-v/2005.
1977/4; 15 AMKD 106 (1977)
Ukraine 2008a: Constitutional Court Opinion of
Turkey 1977b: Decision of September 27, 1977,
January 15, No. 1-v/2008.
No. 1977/117; 15 AMKD 444 (1977)
Ukraine 2008b: Constitutional Court Ruling of
Turkey 1987: Decision of June 8, 1987, No.
February 5, No. 6-u/2008.
1987/15; 23 AMKD 282 (1987)
Ukraine 2008c: Constitutional Court Opinion of
Turkey 2007a: Decision of July 5, 2007, No.
September 10, No. 2-v/2008.
2007/68; Official Gazette, August 7, 2007, No.
Ukraine 2010a: Constitutional Court Opinion of
26606.
April 1, No. 1-v/2010.
Turkey 2007b: Decision of November 27, 2007,
Ukraine 2010b: Constitutional Court Opinion of
No. 2007/86; 45 AMKD 429 (2008).
June 17, No. 2-v/2010.
Turkey 2008: Decision of June 5, 2008, No.
Ukraine 2010c: Constitutional Court Decision of
2008/116; Official Gazette, October 22, 2008, No.
September 30, No. 20-rp/2010.
27032.
Ukraine 2010d: Constitutional Court Opinion of
Turkey 2010: Decision of July 7, 2010, No.
November 18, No. 3-v/2010.
2010/87; Official Gazette, August 1, 2010, No.
Ukraine 2012a: Constitutional Court Opinion of
27659.
July 10, No. 1-v/2012. 7.
Turkey 2016: Decision of June 3, No. 2016/117; 53
Ukraine 2012b: Constitutional Court Opinion of
AMKD 915 (2016).
August 27, No. 2-v/2012.
Constitutional Court of Ukraine (1996–2016) Ukraine 2013a: Constitutional Court Opinion of
Ukraine 1998: Constitutional Court Decision of May 21, No. 1-v/2013.
June 9, No. 8-rp/98. Ukraine 2013b: Constitutional Court Opinion of
Ukraine 1999a: Constitutional Court Opinion of September 19, No. 2-v/2013.
March 25, No. 1-v/99. Ukraine 2015a: Constitutional Court Opinion of
Ukraine 1999b: Constitutional Court Opinion of June 16, No. 1-v/2015.
June 2, No. 2-v/99. Ukraine 2015b: Constitutional Court Opinion of
Ukraine 2000a: Constitutional Court Opinion of July 30, No. 2-v/2015.
June 27, No. 1-v/2000. Ukraine 2016a: Constitutional Court Opinion of
Ukraine 2000b: Constitutional Court Opinion of January 20, No. 1-v/2016.
July 11, No. 2-v/2000. Ukraine 2016b: Constitutional Court Opinion of
Ukraine 2000c: Constitutional Court Opinion of January 30, No. 2-v/2016.
December 5, No. 3-v/2000.
Supreme Court of the Vatican City State (1945–
Ukraine 2000d: Constitutional Court Opinion of
2016)
December 21, No. 4-v/2000.
no cases

– 35 –