PAOLO BISCARETTI DI RUFFIA

Il problema del controllo di costituzionalità delle leggi negli “Stati socialisti” europei

n. 2/1984

 Summary – In the European “socialist States” – as it is well-known – the traditional “principle of the division of powers” is not accepted but the one, quite the opposite, of the “unity of the power of the State”: meaning that in such States, by now devoid (by assiomatic postulate) of any internal class contradiction, all powers are usually conferred, at every level of government, to the respective popular representative assemblies and, then, at the summit, to the parliamentary assembly. It is therefore inconceivable, on the ground of the above presupposition, that the legislative acts of the supreme assembly can be exposed to whichever control by other organism of the State (by the ordinary magistracy, or by proper Courts). Consequently, the control only be made by the assembly itself (when drawing up the law) or, in certain cases (as in USSR and in Poland) by the permanent representative organism created by the same assembly (Presidium of Supreme Soviet, Council of State, etc.). As a compromise solution, at the most, the opinion of special permanent parliamentary Commissions has been made compulsory: typical is the case of Rumania, where to the aforesaid Commission, take part also some experts who are not members of Parliament. The only real subsisting exception in this respect is Yugoslavia where the acceptance of the particular “principle of self-management” has led to the setting up, since 1963, of the special constitutional Courts (at federal level, in the Republics, and in the autonomous Provinces) apt to ensure protection to the rights peculiar to the various self-managed units. But the general rule mentioned above has been confirmed, for instance, by what took place in Czechoslovakia where the federal constitutional Court instituted by law in 1968 (after the “spring of Prague”) has never been realised.