Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 144

SCHNUTZ RUDOLF DÜRR

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also by the EU, individual EU member states or the USA.88 The influence
of these actors is not always visible. Sometimes silent diplomacy can have
a strong impact as well.
Solidary between constitutional courts can be very important to
strengthen the morale of judges who are under siege in their country.
Such solidarity can be expressed multilaterally or bilaterally89.
The work of international actors is important but the wish for
preserving an independent constitutional court has to come from society
in the country concerned. This can be effectively voiced by the opposition
but we should be aware that they may have their own political agenda and
- in rare cases - they may stop short of effectively defending the Court
because of short term interests.
Key institutional actors on the national level are the ombudspersons.
Because of their human rights agenda, they are a natural 'ally' of independent constitutional courts and they can not only alert international
actors but in some countries they can also bring cases to the constitutional
court as it happened in Poland.90
While there is frequently some tension between the constitutional and
supreme courts, in the Polish case we also have seen strong solidarity from
the ordinary judiciary.91
Academia plays an important role because they can be credible in separating legal from political issues in the national discussion.92
Finally, civil society has an essential role. Usually, they are the first
to cry foul and to alert others. Often a speedy reaction is crucial because
the longer a problem lasts, the more the position of the majority becomes
entrenched and the harder it is for them to back off without losing face.

88. http://www.venice.coe.int/WebForms/pages/?p=02_references&lang=EN (accessed
07/2018).
89. https://www.usoud.cz/en/current-affairs/declaration-of-representatives-of-czechjudiciary-on-situation-in-poland/ (accessed 09/2018).
90. The Ombudsman was among the applicants in both cases in which the Constitutional
Tribunal removed obstacles to its functioning in the legislation on the Tribunal: Judgment
K 47/15 of 09.03.2016, (CODICES: POL-2016-1-003) and Judgment no. K 39/16 of
11.08.2016 (CODICES: POL-2016-2-006). The Prime Minister refused publishing both
judgments.
91. The First President of the Supreme Court and the National Council of the Judiciary
were among the applicants in the first case in which the Constitutional Tribunal removed
obstacles to its functioning in the legislation on the Tribunal: Judgment K 47/15 of
09.03.2016 (CODICES: POL-2016-1-003).
92. In the Polish case, the Verfassungsblog provided a useful forum for analysis and
exchange (http://verfassungsblog.de/category/regionen/poland/).

http://www.venice.coe.int/WebForms/pages/?p=02_references&lang=EN https://www.usoud.cz/en/current-affairs/declaration-of-representatives-of-czech http://www.verfassungsblog.de/category/regionen/poland/

Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ?

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