B. Models of Constitutional/Judicial Review

Any particular system can be classified on the basis of a common model of constitutional court structures considering some essential components.

From the organizational point of view, it is possible to distinguish the following models of constitutional/judicial review:

- The "American" - Judicial Review Model (based on the Marbury Case (1803), dealt with by the Supreme Court of the United States, and on John Marshall's doctrine), whereunder constitutional matters are dealt with by all ordinary courts (a decentralized or diffuse or dispersed review) under ordinary court proceedings (incidenter). It is a specific and a posteriors review, whereby the Supreme (high) Court in the system provides for the uniformity of jurisdiction. In the diffuse system, the decisions as a rule take effect only inter partes (except for the principle stare decisis, whereunder the courts in the future abide by the ruling). In principle the decision concerning the unconstitutionality of a statute is declaratory and retrospective, i.e. ex tunc (with pro praeterito consequences). This system was adopted by the following countries:

IN EUROPE: Denmark, Estonia, Ireland, Norway, Sweden;

IN AFRICA: Botswana, Gambia, Ghana, Guinea, Kenya, Malawi, Namibia, Nigeria, the Seychelles, Sierra Leone, Tanzania;

IN THE MIDDLE EAST: Iran, Israel;

IN ASIA: Bangladesh, Fiji, Hong Kong (until 1 July 1997), India, Japan, Kiribati, Malaysia, the Federal States of Micronesia, Nauru, Nepal, New Zealand, Palau, Papua New Guinea, Singapore, Tibet¹⁷, Tonga, Tuvalu, Vanuatu, Western Samoa;

IN NORTH AMERICA: Canada, the USA;

IN CENTRAL AND SOUTH AMERICA: Argentina, Bahamas, Barbados, Bolivia, Dominica, the Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Mexico, St. Christopher/Nevis, Trinidad and Tobago.

- The New (British) Commonwealth Model (Mauritius) cannot be classified either under the American or the European model. It is characterized by a concentrated constitutional review under the jurisdiction of the Supreme Court consisting of ordinary judges without political nomination; as a rule, it involves preventative (a priori) review and the consulting function of the Supreme Court, although repressive (a posteriori), review is also possible; decisions take an erga omnes effect.

- The "Austrian" (Continental - Constitutional Review) Model (based on Kelsen's Model of 1920, involving the interconnection of the principle of the supremacy of the Constitution and the principle of the supremacy of the Parliament), whereunder constitutional matters are dealt with by specialized Constitutional Courts with specially qualified judges or by ordinary Supreme Courts or high courts or their special chambers (concentrated constitutional review) in special proceedings (principaliter). As a rule it is an abstract review, although a concrete review is also possible. In addition to the aposteriori review, a priori review is also foreseen. The decisions have an erga omnes effect with reference to the absolute authority of the institution by which they are taken. Bodies exercising constitutional review may be:

a) Constitutional Courts

IN EUROPE: Albania, Andorra, Armenia, Azerbaijan, Austria, Belarus, the Federation of Bosnia and Herzegovina (with the Constitutional Courts of the federal entities Bosnia and Herzegovina and the Serbian Republic of Bosnia), Bulgary, Croatia, the Czech Republic, the FRY(with the Constitutional Courts of constituent republics Serbia and Montenegro), Georgia, Germany (with the regional Constitutional Courts: Baden-Wuerttemberg, Bavaria, Brandenburg, Bremen, Hamburg, Hessen, Niedersachsen, Nordrhein-Westfalen, Rheinland Pfalz, Saarland, Sachsen, Sachsen-Anhalt), Hungary, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Poland, Romania, the Russian Federation (with the federal unit Constitutional Courts: Adigea, Altai, Bashkiria, Buryatia, Chechnia, Chuvashia, Dagestan, lngushia, lrkutskaya Oblast, the Kabardino-Balkar Republic, Khakassia, the Karachaewo-Cherkez Republic, Karelia, Kalmikia, Komy, Marii-El, Northern Ossetia, Tatarstan, Tuva, Udmurtia, Yakutia/Sakha), Slovakia, Slovenia, Spain, Turkey, Ukraine;

IN AFRICA: Angola, Benin, the Central African Republic, Egypt, Equatorial Guinea, Gabon, Madagascar, Mali, Rwanda, South Africa, Togo;

IN THE MIDDLE EAST: Cyprus, former Iraq, Palestine, Syria;

IN ASIA: Kyrgyzstan, Mongolia, South Korea, Sri Lanka, Tajikistan, Thailand, Uzbekistan (with the regional Constitutional Committee of the Republic of Karakalpakstan);

IN CENTRAL AND SOUTH AMERICA: Chile, Surinam, Tucuman Province (Argentina) with the Constitution of Tucuman of 28 April 1990;

b) High Courts or their special chambers

IN EUROPE: Belgium (the Arbitration Court), Iceland, Liechtenstein, Monaco;

IN THE MIDDLE EAST: Yemen;

IN AFRICA: Burkina Faso, Burundi, Cameroon, Chad, Eritrea, Niger, Sudan, Uganda (1995), Zaire, Zambia;

IN ASIA: the Philippines;

IN CENTRAL AND SOUTH AMERICA: Costa Rica, Nicaragua, Panama, Paraguay, Uruguay;

c) The Constitutional Council

IN THE MIDDLE EAST: Lebanon;

IN AFRICA: Mauritania, Senegal;

IN ASIA: Cambodia, Kazakhstan.

Institutions based on the European model of constitutional review share the following common characteristics:

• constitutional review is introduced under different circumstances, depending on the particular national system;
• institutionally independent structures of constitutional review located outside the judicial branch;
• in the proceedings following a constitutional complaint problems are created by the separation of constitutional review from the ordinary courts;
• constitutional status (administrative and financial autonomy) is a prerequisite for the independence of the Court;
• a monopoly of constitutional review (specialisation in constitutional review), the concentration of power in one institution, most often with the power to abrogate statutes adopted by the Parliament;
• constitutional court judges are appointed by bodies of political power;
• the special nature of the jurisdiction: decisions are of a legal and political nature although they may also have a purely consultatory function;
• the prevailing constitutional review of statutes;
• generally such constitutional review is repressive, although to a minor extent constitutional review is of a preventative nature.

a) Constitutional Courts

IN EUROPE: Portugal;
IN CENTRAL AND SOUTH AMERICA: Colombia, Ecuador, Guatemala, Peru;

IN EUROPE: Greece, Switzerland (in view of the fact that in the Swiss system - a system of limited constitutional review - the Swiss Federal Court cannot evaluate federal statutes, generally binding resolutions and ratified international treaties: the principle of supremacy exists on the federal level);

IN ASIA: Indonesia, Taiwan;

IN AFRICA: Cape Verde;

IN CENTRAL AND SOUTH AMERICA: Brazil, El Salvador, Honduras, Venezuela.

IN EUROPE: France;
IN AFRICA: Algeria, Comoros, Djibouti, Ivory Coast, Morocco, Mozambique.

IN EUROPE: Finland;

IN THE MIDDLE EAST: Bahrain, Kuwait, Oman;

IN AFRICA: Congo, Ethiopia, Guinea-Bissau, Sao Tome and Principe, Tunisia, Zimbabwe;

IN ASIA: Afghanistan, Brunei, Burma/Myanmar, China (as well as Hong Kong after 1 July, 1997), Laos, North Korea, Pakistan, Turkmenistan, Vietnam;

IN AUSTRALIA;

IN CENTRAL AMERICA: Cuba.

- Systems without Constitutional/Judicial Review

IN EUROPE: Great Britain¹⁸, the Netherlands¹⁹;

IN AFRICA: Lesotho, Liberia, Libya²⁰.

- International Judicial Institutions with Certain Functions of Constitutional Review
- the European Court of Human Rights in Strasbourg (for European complaint);
- the Court of Justice of the European Community in Luxembourg (for legal action leading to annulment; legal action against the omission of action by the Council of Ministers or the Commission of the Community; the solution of previous issues as a concrete review upon the demand of a member state court);
- the Court of EFTA Geneve (for the settlement of disputes between EFTA member states, a concrete review requested by the court of a member state of EFTA);
- Comision y la Corte Interamericanas de los Derechos Humanos;
- Tribunal de Justicia del Acuerdo de Cartagena;
- the project of the foundation of La Corte Centroamericana de Justicia como Tribunal Constftucional de Centroamerica.

With reference to such international institutions, there often arises the question of their role and the role of national institutions of constitutional/judicial review concerning the relation of supranational law (e.g. European Community Law) vis-d-vis the national legal systems, based either on the dualist tradition²¹ or on a monist tradition²².