CDL-INF(1997)007e
Strasbourg,
3 March 1998
Seminar
organised in conjunction with the Constitutional Court of Georgia on
"Contemporary problems of Constitutional Justice"
Tbilissi (Georgia), 1-3 December 1996
Proceedings
TABLE OF CONTENTS
The
Establishment of a Constitutional Court in a Period of Transition -
The
Example of Slovakia
by
Mr Ján KLUCKA
Problems
of Capability of constitutional supervision
by
Mr Avtandil DEMETRASHVILI
Functions
of a Constitutional Court / Election of Judges
by
Mr Cesare PINELLI
"The
Citizen as an Applicant Before the Constitutional Court"
by
Mr Arne MAV_I_
THE ESTABLISHMENT OF
A CONSTITUTIONAL COURT IN A PERIOD OF TRANSITION - THE EXAMPLE OF SLOVAKIA
by JUDr. Ján KLUDKA, Judge of the Slovak Constitutional
Court, Member of the Venice Commission for Democracy through Law
According to Article 124 of the Constitution of the Slovak
Republic (hereinafter known as "the Constitution" - No.460/1992
Coll.) the Constitutional Court of Slovakia is an independent judicial body
empowered to protect constitutionality in the Slovak Republic. This task is
fulfilled through various kinds of its proceedings viz.to review the constitutionality of generally binding legal
regulations of the Slovak Republic (Article 125 letter a) until d) of the
Constitution), to review the compliance of generally binding legal regulations
of the Slovak Republic with international treaties which have been published in
a Collection of Laws (Article 125 letter e) of Constitution), to resolve the
conflict of competences between supreme organs of state (Article 126), to
provide an official interpretation of constitutional acts provided that the
dispute has arisen as regards this matter between disputing parties (Article
128 para. 1 of the Constitution), to review both the constitutionality and
legality of an electoral process and election into state organs and self-governmental
bodies (Article 129 of the Constitution), to protect basic human rights and
freedoms through the proceedings about constitutional complaints and
submissions (Article 127 and 130 para. 3 of the Constitution) and some other
kinds of proceedings. Throughout the more than three and half years of its
existence (the Constitutional Court started its activity on February l5, 1993)
more than 2500 cases have been brought before the Constitutional Court. The
relevant experiences have been acquired during this period allowing to identify
at least some general (and common) problems (both legal and factual) each
newly-established constitutional court which may have to be confronted.
1. Relationships
of the Constitutional Court with the courts of general jurisdiction.
In a number of constitutions of Central and Eastern
European countries adopted after 1989 (including that of the Slovak Republic)
the newly-established Constitutional Courts represent qualitatively new
"elements" inserted into their judicial systems and therefore there
have been hardly any practical experiences with their decision-making process,
their relationships with other courts of general jurisdiction, the new tasks of
the constitutional courts viz. to
protect the constitutionality of legal orders etc. Each constitution regulates
the relationship between its constitutional court and ordinary court in its own
way, but despite the differences in such regulations, the following general
feature is common to all new constitutions. According to this feature the
constitutional court is to be qualified as an independent judicial body neither
subordinate nor superior to the system of ordinary courts. Whereas the
Constitutional Court does not form an integral part of the judicial system of
ordinary courts (it cannot be qualified as its next and new appellate court) it
has naturally no competence to re-examine or even to cancel their valid
judgments. The Slovak experience confirms, however, that the prevailing number
of applicants (more than 70%) asked the Constitutional Court just to reopen its
case (already finished before the ordinary court) or even to abrogate the valid
judgments of ordinary courts (including some judgments of the Supreme Court of
the Slovak Republic). Such proposals of applicants (either in the form of
constitutional complaints or constitutional submissions) have therefore had to
be rejected due to the lack of the competence of the Constitutional Court to
deal with them, whereas the need to respect the independence and impartiality
of ordinary courts absolutely prevents such interference of the Constitutional
Court.
1.1. Protection of
basic rights or freedoms by the Constitutional Court and/or ordinary
courts?
The constitutional and/or other kind of relevant legal
regulations resolve, as well, the problem of which judicial body (ies) shall be
entrusted with the competence to protect the basic (fundamental) rights and
freedoms embodied obviously in the Constitutions or constitutional acts (in the
Slovak Republic-Chapter 2. of the Constitution "Fundamental Rights and
Freedoms"). In principle there are three possible ways of resolving this
problem:
l) the protection of fundamental rights
and freedoms shall be guaranteed exclusively by the Constitutional Court;
2) the protection of fundamental rights
and freedoms shall be guaranteed exclusively by ordinary courts;
3) the protection of fundamental rights
and freedoms shall be guaranteed by the Constitutional Court, unless the
protection of such rights and freedoms falls under the jurisdiction of another
(ordinary) court.
The Slovak legal regulations (both constitutional and
other) confirm that the Slovak legislator was in favour of the third option of
resolving these problems. In respect of the protection of basic human rights
and freedoms, the Constitutional Court of the Slovak Republic is competent to
deal with it, provided that the following requirements have been met:
a) the applicants (either natural or legal
persons) have objected to the alleged violation of human rights or freedoms embodied
in Chapter 2. of the Constitution;
b) ordinary courts or other state organs
of the Slovak Republic are not able to provide effective protection (effective
remedy) against the alleged violation of such rights or freedoms;
For the completeness it should be pointed out that the
ordinary courts themselves are able (pending their proceedings) to violate the
basic rights or freedoms of applicants, such as disputing parties (right to a
fair trial, right to a public hearing in "reasonable time" etc.) not to
providing (under specific conditions) at the same time any effective remedy
against them. In some cases, therefore, as the defendants before the
Constitutional Court of the Slovak Republic were representatives of the
ordinary courts, and the Constitutional Court, in some cases, took the findings
according to which the ordinary courts violated the basic
"procedural" rights of applicants pending the judicial proceeding
before them. The main purpose of the above-mentioned kind of legal regulations
is to guarantee (within the framework of the domestic legal order of the
concrete state) that no basic right or freedom can leave without effective
judicial protection (either by the ordinary courts or constitutional court
proceedings). If the fundamental rights or freedoms represent simultaneously a
"constitutional transformation" of the human rights treaty
provisions, such "internal" judicial proceedings may form a part of
the process of exhaustion of local remedies f.e.
according to Article 26 ECHR.
2. Ratione
temporis principle in the activity of the newly-established Constitutional Court.
As mentioned above, the new constitutional courts are
obviously founded by the relevant provisions of constitutions, but they are not
able (in practice) to start their activity immediately viz. from the day when the relevant constitution has entry into
force. Next, legislative steps are regularly required to complete the legal
"background" of such a new judicial body, it means the adoption of
the special act about the Constitutional Court (in the Slovak Republic Act
No.38/1993 Coll. in the wording of Act No.293/1995 Coll.), or the Rules of
procedure of the Constitutional Court. In some cases, the process of electing
(appointing) the first judges of the Constitutional Court and the practical
problems connected with acquiring the appropriate building, hiring the staff of
the Constitutional Court, represents a time-consuming process. The day when the
Constitutional Court starts its decision- making process is therefore regularly
different from the day when the Constitution has entry into force. The
practical problem may therefore arise in respect of the "ratione temporis principle" in the
practice of newly-established constitutional courts.
Resolving this problem in February 1993, the Slovak
Constitutional Court took into account the fact that neither the Constitution
nor the Act about the Constitutional Court of the Slovak Republic contain
"retroactive" provisions allowing to deal with such applications
(constitutional complaints or submissions) which have objected to the alleged
violations of their basic rights or freedoms before February l5, 1993 (the day
when the Act No.38/1993 Coll. about Constitutional Court entered into force).
Only in the exceptional cases (the talk is about so-called continuing violations of human rights and freedoms) the
Constitutional Court has declared to be competent to deal with such
applications if the applicants objected to the alleged violation of their human
rights after October 1st, 1992 - the day when the Constitution of the Slovak
Republic entered into force. The same conclusion is valid for all other
proceedings of the Constitutional Court as described above except those whose
purpose is to review the constitutionality of generally binding legal regulations
of the Slovak Republic (Article 125 letter a) until d) of the Constitution) or
to review their conformity with international treaties (Article 125 letter e)
of the Constitution). If there is still a valid legal regulation and if the
other "admissibility" requirements of such a proposal have been met,
the Constitutional Court of the Slovak Republic is competent to deal with such
a proposal regardless of whether such a legal regulation has been passed before
the entry into force of the Constitution or even in the former Czech and Slovak
Federal Republic (before December 31, 1992). The Slovak legislator has made
only one difference between the valid legislation of the former CSFR and the
"new" Slovak legislation passed after January 1st, 1993 provided that
their constitutionality has been objected to before the Constitutional Court.
Article 152 para. 2 of the Constitution (Transitory and
Final Provisions) states, that: "Laws
and other generally binding regulations passed in the Czech and Slovak Federal
Republic shall become inoperative on the ninetieth day after the publication of
the decision made by the Constitutional Court of the Slovak Republic..." and
on the other hand Article 132 states (with regard to "Slovak"
legislation) that : "In cases where
the Constitutional Court finds any contradiction in statutory rules as defined
in Article 125...these rules parts or clauses thereof shall become ineffective
after six months following the decision of the Constitutional Court".
3. The practical application of international treaties in the decision-
making process of the Slovak Constitutional Court.
In the prevailing number of cases brought before the
Slovak Constitutional Court above all the Constitution and other kinds of
domestic legal regulations of the Slovak Republic have formed the relevant
legal basis of decisions (findings) of Constitutional Court. It is useful,
however, to note that such a "domestic" legal basis is not exclusive,
and the sources of international law (international treaties) have, in some
cases, had an important function before the Constitutional Court. The purpose of this part is therefore to
identify the position of international treaties in the decision-making process
of the Slovak Constitutional Court, taking into account the experiences with
their practical application within the scope of the competences of the
Constitutional Court, as listed above. Before turning to look at this topic in
some detail, it may be worthwhile to characterize the position of international
treaties within the framework of the domestic legal order of the Slovak
Republic according to constitutional and other legal regulations of this topic.
3.1. International treaties in the legal order
of the Slovak Republic.
After the dissolution of the former Czech and Slovak
Federal Republic (January 1st, 1993) a number of international treaties (both
bilateral and multilateral) have remained as an international law treaties
"heritage" for both successor states, the Slovak Republic and the
Czech Republic. The talk is about 1900 bilateral treaties and 980 multilateral
treaties the state party of which has been (until December 31st, 1992) the
former Czech and Slovak Federal Republic.
Both new states have decided separately to which of them they make the
succession according to the Vienna Convention on the Succession of States in
respect of Treaties on August 23, 1978. Due to the application of the
"automatic succession principle" (Article 34 para. 1 letter a) of the
Vienna Convention) the Slovak Republic has notified its succession into
treaties of the former CSFR and has declared to be bound by all bilateral and
multilateral treaties of the former CSFR since January 1st, 1993. The Slovak
Republic has made the succession into the reservations and declarations made to
such treaties by the former CSFR. These treaties therefore became an integral
part of Slovak legal order.
The Constitution contains neither a provision declaring
the valid international treaties as a integral part of the domestic legal order
of the Slovak Republic, nor a general "supremacy clause" determining
the priority of international treaties over the domestic legal order. Generally
speaking, the position of international treaties within the framework of the
Slovak legal order is fixed by the relevant provisions of the Act on the
Collection of Laws of the Slovak Republic (No.1/1993 Coll.). According to Article 1 para. 1 in
conjunction with Article 3 para. 1 and Article 6 of the quoted Act, if the valid international treaty (either
bilateral or multilateral) has been published in the Collection of Laws it has
to be recognized as a generally binding legal regulation of the Slovak
Republic. Any provision of this Act regulates, however, the legal conditions
for the practical application of international treaties promulgated in the
Collection of Laws. These conditions are regulated partly by the Constitution
(Article 11 of the Constitution with regard to the application of international
human rights treaties) and partly by the laws of the Slovak Republic
("supremacy clauses" in a number of Acts (either former
"federal" or today's "Slovak") in respect of any other
international treaties different from human rights treaties. Article 11 of the
Constitution determines the "conditional supremacy" (priority) of the
human rights treaty within the framework of the Slovak legal order, whereas the
human rights treaty shall be applied by the relevant organ of state only if it
guarantees a "greater scope of basic human rights or freedom". If
such requirement is met, the legal obligation of each public authority is to
apply the relevant provision(s) of the human rights treaty instead of the
"less favourable" domestic legal regulation. Other treaties have
priority over the domestic legal order, unless provided otherwise in relevant
domestic legal regulation, and if the latter includes a "supremacy
clause" allowing the preferential application of such treaty.
3.2. International
treaties before the Constitutional Court of the Slovak Republic.
Among the number of proceedings of the Constitutional
Court as listed above, the following allow for the practical application of
international treaties :
l. Proceedings
reviewing the compliance of generally binding legal regulations of the Slovak Republic
with the valid international treaty (Article 125 letter e) of the
Constitution).
2. Proceedings
reviewing the constitutionality of generally binding legal regulations of the
Slovak Republic (Article 125 letter a) until d) of the Constitution).
3. Proceedings
about constitutional complaints (Article 127 of the Constitution).
4. Proceedings
about the constitutional submission both natural or legal persons objecting to
alleged violation of their basic rights or freedom (Article 130, para. 3 of the
Constitution).
It should be pointed out, however, that international
treaties do not have the same position in all proceedings of the Constitutional
Court mentioned above. As regards the proceedings under point l) the valid
international treaty is in a position of the "higher" legal
regulation, and the conformity of domestic legal regulations with such
"higher" legal regulation is reviewed. With regard to the proceedings
under points 2) to 4), the international treaty is applied as one of the
sources enabling the proper interpretation of the relevant provision of the
Constitution for the purposes of the concrete proceedings of the Slovak
Constitutional Court.
l) In respect of proceedings to review
the compliance of generally binding legal regulations of the Slovak Republic
with international treaties (valid for Slovakia) these kinds of proceedings
exceed the scope of "pure" constitutionality, whereas its purpose is
to review the compliance of domestic legal regulations with valid international
treaties. Proceedings before the Constitutional Court according to Article 125,
letter e) of the Constitution represents, therefore, one of the ways to obtain
in accordance the content of domestic legal regulations with the international
treaty, the state party of which is the Slovak Republic. The case objecting to
the non-conformity of the domestic legal regulations exclusively with the
international treaty has not been brought (so far) before the Constitutional
Court. In some cases, however, the subjects entitled to bring the case before
the Constitutional Court have objected simultaneously to the non-conformity of
domestic legal regulations with the Constitution as well as with the
international treaty (human rights treaties most frequently-see below). Such a
kind of Slovak legal regulation confirms the "top position" of
international treaties within the framework of the Slovak legal order, whereas
(and for the need of proceedings before the Constitutional Court) they have to
be recognized as a legal regulation of "higher" degree, and any other
domestic legal regulation is in a "lower" degree position. The
Constitutional Court has, therefore, no competence to review the
"constitutionality" of international treaties valid for the Slovak
Republic. On June 4, 1996 the Constitutional Court rejected the proposal of
natural persons to review the "constitutionality" of the bilateral
Czech-Slovak-Hungarian agreement on August 23, 1949 due to the lack of its
competence to deal with such a case. (Pl ÚS 2/96-so far not published). In such
proceedings of the Constitutional Court may be objected non-conformity any
generally binding legal regulations of the Slovak Republic with any valid
international treaty.
2) In respect of the practical application
of international treaty law within the scope of proceedings about the
constitutionality of generally binding legal regulation of the Slovak Republic,
there is scope for their application in two kinds of cases :
a) subjects entitled to bring the
case before the Constitutional Court have objected simultaneously to the
non-conformity of domestic legal regulations, both with the Constitution and
international treaties. In such a case (and if the Constitutional Court has
found a contradiction between such legal regulations and the Constitution and
international treaties) such proceedings have a "double" function, viz. to protect the constitutionality of
the Slovak legal order and at the same time to bring domestic legal regulations
in accordance with international treaties. So far, the Constitutional Court has
not found any conflict between domestic legal regulations and international
treaties within the scope of such proceedings. It is useful to add, however,
that the number of international treaties which may be applied in such a case
is restricted (in comparison with the proceedings of the Constitutional Court
according to Article 125 letter e) of the Constitution) whereas it understands
only such international treaties the provisions of which are
"transformed" in the Slovak legal order by the Constitution. The talk
is first of all about human rights treaties, the constitutional
"transformation" of which is represented by Chapter 2 of the
Constitution (Basic rights and freedoms).
b) subjects entitled to bring the
case before the Constitutional Court requesting only a review of the
constitutionality of the domestic legal regulations concerned. Before deciding
on it, the Constitutional Court is obliged to interpret the content of the
provision (Article) of the Constitution marked by the applicant. Provided that
such a provision of the Constitution represents only a
"constitutional" transformation of the international obligation
issuing for the Slovak Republic from valid international treaties, the
Constitutional Court has no legal or factual reason not to interpret such a
constitutional provision using the method of interpretation of the
international law of treaties (Articles 30-33 of the Vienna Convention of the
Law of Treaties 1969) including (if it is necessary) the relevant case-law of
international judicial or other organs (opinions of the European Commission of
Human Rights and judgments of the European Court of Human Rights in respect of
the European Convention of Human Rights 1950, the views of the Committee of
Human Rights in respect of the International Covenant on Civil and Political
Rights, 1966 etc.). Such an approach of the Slovak Constitutional Court to the
interpretation of the Constitution is based on the fact that any of the
reservations or declarations made by the former CSFR to the international
treaties (treaties on human rights) does not prevent such a possibility of the
interpretation of the Constitution. The Constitutional Court took this approach
for the first time in the case when the claimant (the group of the deputies of
the National Council of the Slovak Republic) objected to the constitutionality
of the Governmental Decree No. 196/1993 Coll. about the school textbooks with
Article 42 para. 2 of the Constitution (right of free education on elementary
schools). The Constitutional Court in its finding stated inter alia that : "there is no legal or factual
reason...to interpret the term 'free education' from Article 42 para. 2 of the
Constitution only on the basis of Constitution or any other domestic legal regulation
if the valid international treaties regulate the same basic right and if it is
possible to interpret such basic right through the method of interpretation of
the rules of international law. Using only "domestic interpretation"
rules of the basic right regulated by the international human rights treaty can
lead to the violation of the latter and to the potential international
responsibility of the Slovak Republic as well. The following international
treaties have been used in the "free education case" by the
Constitutional Court to interpret the term "free education" from
Article 42 para. 2 of the Constitution: UNESCO Convention against
Discrimination in Education 1960, International Covenant on Economic, Social
and Cultural Rights, 1966 and Convention on the Rights of the Child 1989.
The Constitutional Court has taken a
similar approach in a number of other cases concerning the conformity of
various kinds of generally binding legal regulations of the Slovak Republic
with the Constitution. In a case when the claimant (military court) has
objected to the contradiction of Act No.18/1992 Coll. about the civil service
with Article 25 para. 2 of the Constitution (the right of conscientious
objectors to refuse mandatory military service) the Constitutional Court has
stated that : "In this case the Constitutional Court of the Slovak
Republic took into account also the existing case-law of the Strasbourg organs
and especially the resolution of the Committee of Ministers on June 29, 1967
67(DH) 1 in the Grandrath Case".
3) As regards constitutional complaints (Article 127 of
the Constitution) there are no obstacles to using international treaties in one
of the ways mentioned above. It seems useful to emphasise that the
Constitutional Court has practically no real competence to deal with such kinds
of cases, whereas almost all valid decisions of state organs or
self-governmental bodies (which forms the subject matter of the constitutional
complaint) are subjected to judicial control by ordinary courts. This is maybe
one of the reasons why the Constitutional Court has so far not applied
international treaties within its proceedings about the constitutional
complaints.
4) In respect of the proceedings about constitutional
submissions of natural or legal persons objecting to the alleged violation of
basic human rights or freedoms (Article 130 para. 3 of the Constitution) the
Constitutional Court has applied, in two cases, international treaties to
interpret relevant constitutional provisions. In the first case, the European
Convention of Human Rights and International Covenant on Civil and Political
Rights (including the judgments of the European Court of Human Rights and views
of the Committee of Human Rights) was applied to interpret the content and
scope of the right of privacy (including the data protection) from Article 19
para. 1 of the Constitution
and in the second case has been applied to the same international treaties to
interpret the term fair trial "within the reasonable time" .
For completion, it should be pointed out that the
proceedings of the Constitutional Court about constitutional complaints and
submissions may form a part of the process of exhaustion of local remedies
according to Article 26 of the European Convention of Human Rights or Article 2
of the Optional Protocol to the Covenant on Civil and Political Rights. Today's
valid legal regulation of the proceedings before the Slovak Constitutional
Court therefore allows the practical application of international treaties
(first of all human rights treaties) into the legal order of the Slovak
Republic to the extent and mode described above. Through this kind of its
decision-making activity, the Slovak Constitutional Court "imports"
into domestic legal order the international standards of human rights
protection and helps to get into conformity these parts of domestic legal
regulations which are not compatible with such standards. Such decisions of
Constitutional Court have "erga
omnes effect" and are binding for all state organs.
4. Other Practical
Problems.
Apart from the legal problems described above (their
list is naturally not exhaustive) the newly-established Constitutional Court is
confronted with a number of practical problems which have to be resolved in a
very short time. One of them is how to organize its internal work to be able to
deal with cases in reasonable time. Two
points are decisive in this field:
l) whether the relevant legal regulation prescribes
(fixes) the concrete terms, both for examining the case with respect of its
"admissibility" and for taking the decision of the Constitutional
Court on the merits.
2) who is responsible for preparing the case for the
need of the "admissibility" decision and the decision in merits
(judge rapporteur, collegium of the judges).
Relevant Slovak legal regulations fix any term, neither
for the "admissibility" decision nor the decision on merits. The
President of the Slovak Constitutional Court appoints a judge rapporteur for
each case. The same rapporteur prepares the case both for admissibility
decision and decision in the merits. A lot of cases brought before the Slovak
Constitutional Court in 1993 (until December 31, 1993 more than 750 cases)
raised the necessity to find an appropriate method of internal work of Constitutional
Court with respect of such huge number of cases. A system of "informal meetings" has been
inserted into the process of examining each concrete case before Constitutional
Court (the talk is about so-called plenary cases). In the first stage of the
activity of the Slovak Constitutional Court (approximately to the end of 1993)
such informal meetings have fulfilled a "double" function. They
helped, above all, to clarify and stabilize the content and conditions of the
practical application of the "rules of procedure" of the Slovak
Constitutional Court, including its "admissibility conditions" face to face to particularities of each
concrete case. The next (and main) function of such informal meetings, however,
is to discuss in advance the legal
questions presented by the judge rapporteur in its preliminary report. Depending on the complication and complexity of
each concrete case, the informal meetings took place two, three or even four
time before the plenary session of the Constitutional Court.
As regards the "external" problems of the
newly-established Constitutional Court, one may mention its relationship with
the mass-media (radio, TV, newspapers) whereas the correct and quick
information about its decisions (findings) have great importance, not only for
its "image" as an independent and impartial judicial body, but also
for its confidence in society as a whole. Taking into account the special legal
terminology and the structure of the decisions of the Constitutional Court, it
seems, therefore, useful to co-operate closely with the circle of influential
journalists ("opinion-makers") not only on a formal basis
(press-conference, briefings) but also on an informal basis in discussions
about the concrete and more detailed questions of the decisions of the Constitutional
Court, about the case-law of the Constitutional Court in previous cases, the
legal and doctrinal philosophy of the judgments, and the position of
international treaties etc. Another question is how to inform regularly about
the recent decisions of the Constitutional Court (press-release, press
conference) and who should be entitled to give such information (judges, judge
rapporteur, the president of the Constitutional Court, members of staff of the
Constitutional Court).
PROBLEMS OF
EFFECTIVENESS OF CONSTITUTIONAL SUPERVISION
by Mr Avtandil DEMETRASHVILI, Chairman of the
Constitutional Court of Georgia
I must begin by congratulating Ján Klucka on his
excellent report. In my opinion, one of the main strengths of his report is its
consideration of problems of constitutional supervision not only in terms of
general, abstract concepts (which of course is necessary and adds theoretical
value to the report), but also the fact that it takes into account more
concrete elements, namely space (Slovakia) and time (the period of transition
to a democracy).
Why was constitutional supervision established in Europe
only in the second half of the 20th century (whereas in the United States it
took only 16 years after the adoption of their Constitution)? Can we talk about
real constitutional supervision in post-soviet or post-communist states? – The
essence of the answer to these questions is that constitutional supervision
appears only where and when there is a social requirement for it, and the
extent to which we can say that it has really been established is in direct
proportion to the effectiveness of constitutional supervision.
There is a great temptation here to open up a discussion
on the genesis of constitutional supervision right in front of this educated
audience and to involve you in interesting opinions on the origin of
constitutional supervision in organic or natural law doctrines. I am sure this
would be of interest, but today I will restrict myself to speaking on another
topic, namely on effectiveness of constitutional supervision. It should be
noted from the outset that this is a very difficult and multifaceted problem;
some issues will be discussed in detail, others simply mentioned.
Below I would like to answer the following questions:
- under what conditions,
- in what forms and
- by what means
will the activity of judicial bodies of constitutional
supervision be effective, i.e. problems which existed before its creation will be
resolved and the objectives aimed for in its creation be reached?
Guaranteeing the Constitution’s supremacy and the
protection of human rights and freedoms are considered as general strategic
objectives in this report.
1. Of the
two basic models of exercising constitutional supervision, which of them (or
their variations) is more appropriate as regards the effectiveness of
constitutional supervision? American? Austrian? French? German? Or maybe
Georgian? Even without taking into consideration epoch and country, neither of
them can be considered universally applicable. It seems fairly certain,
however, that in countries where the constitutional jurisdiction is just being
formed, the special body created for constitutional supervision i.e. the
Constitutional Court will be more effective than older such Courts. The
practice of common law countries, where the function of constitutional
supervision is assumed by courts of common jursidiction, also seems valid.
For arguments' sake let us address one of the most
reliable criteria: social practice. As has already been pointed out by Ján
Klucka, in every post-soviet country, and if I am not mistaken in every
post-communist country too, a special body of constitutional supervision – the
Constitutional Court – has already been created or is being created. Thus the
effectiveness of constitutional supervision is not directly connected with the
nature of the bodies carrying it out – whether these are common courts or a
specialised Constitutional Court. An investigation of other functions may prove
more useful. Some authors, in particular Lorenca Karlacare from the University
of Ferrari, note that the increasing number of Constitutional Courts is a
characteristic feature of democratic development and represents a sign of
rejection of the old, authoritarian regime of government.
2. Sharing
this viewpoint, I would like to look at the relations existing between the
Constitutional Court and democracy from the opposite perspective.
It is indisputable that the activity of the
Constitutional Court should foster the development of democracy. In connection
with this reciprocal relation, it is perhaps of greater importance to note that
there is a direct relation between the level of development of democracy and
the effectiveness of constitutional supervision. The experience of classic
democratic countries proves this (USA, Germany, Italy); so too does that of
newer democracies such as Russia, Belarus, Poland and Georgia.
Thus the second viewpoint – the effectiveness of
constitutional supervision depends on the level of development of democratic
institutions, regardless of the nature of the judicial body carrying out
constitutional supervision – that is to say, regardless of whether the
supervisory body is a common court or a specialised body.
3. Effectiveness
of constitutional supervision varies in direct proportion with the existence of
appropriate legislation in the country. Englishmen say: “to cook a rabbit stew,
you should have a rabbit at least”. That is why constitutional supervision is
necessary only where the Constitution exists as a single, systematic, normative
act.
This is a necessary but not sufficient condition for the
existence of a means of constitutional supervision. Activity of the body of
constitutional supervision will only be of value if the legal framework for its
activity has been created. The legal acts of Georgia which in my opinion
compose this legal framework are as follows:
- the Constitution of Georgia
- the Organic Law on the Constitutional
Court
- the Law on Constitutional Legal
Proceedings
- the Law on Social Guarantees to the
Members of the Constitutional Court, and finally
- the Regulations of the Constitutional
Court of Georgia.
Thus, the third opinion: the quality of effectiveness of
the Constitutional Court is connected with the existence in the country
concerned of a legal base necessary for its functioning.
4. Other
circumstances upon which the effectiveness of the body of constitutional
supervision is dependent: the procedures envisaged concerning its composition
and structure.
There are three main procedures used in forming the body
of constitutional supervision:
- formation of the body by the
Parliament alone
- formation by the Parliament and the
Head of the State
- formation by all three branches of
power.
Looking at recent trends, we can see that precedence has
been given to the third procedure, which is termed “political” in literature.
It is used, for example, in Italy, Bulgaria, Ukraine and Georgia.
The advantage of such a procedure is considered to be
the capacity of various political powers to continue to function on a
consensual basis during transitional periods. Involvement of the judicial
branch in the formation procedure may also provide, for example, stricter protection
of the procedural norms of activity of this body, etc.
As time is limited, I will not linger over the issues of
the membership and structure of the supervisory body, though as three months'
experience of the activity of the Constitutional Court of Georgia make
apparent, its effectiveness is closely connected with its division into
Chambers.
To name a specific problem, I would like to call your
attention to the relations between the effectiveness of the Court’s activity
and the criteria which must be fulfilled by members of the Court. The main
criteria are age, professional experience and education.
5. Effectiveness
of constitutional supervision depends on the competence of the body carrying
out the supervision, that is to say which bodies and which acts of these bodies
are subject to constitutional supervision. The principal goal of the
Constitutional Court of Georgia is ensuring the constitutionality of normative
acts. As to the work of the Court, individual claims are of the greatest
importance to it. It might boldly be stated that the principal and indeed
essential jurisdiction of all Constitutional Courts (in all countries) is the
review of individual claims; and as this applies in general, so too it applies
to countries in periods of transition. Using its authority to review individual
claims, the Constitutional Court is given the opportunity to carry out direct
supervision of the protection of human rights and freedoms.
It must be noted that often the Constitutional Court is
the last hope of citizens on the way to the protection of their rights. This
theme will be considered by Arne Mav_i_ later, so I will not discuss it
here.
In some countries, Constitutional Courts are also
charged with the function of interpretation of laws. In my opinion, such
jurisdiction may be considered as detrimental to its most important role, in
that it might hinder the essential work of the Constitutional Court, as the
Constitutional Court is more a judicial body by its essence and incidental
supervision is more characteristic to it.
I would like to say two words on the possibility of the
Constitutional Court verifying court decisions from the point of view of their
constitutionality. On the one hand, if it is possible that legislative or
executive authorities issue acts which are in conflict with the Constitution,
then why is it impossible to imagine that courts may also adopt
unconstitutional decisions? And if a court should adopt such a decision, why
can the special body created for constitutional supervision not be authorised
to decide on the constitutionality of a court’s decision, when it is empowered
to declare acts of the supreme legislative and executive authorities as
unconstitutional, null and void?!
On the other hand, for countries in periods of transition,
where the institution of constitutional supervision is only starting to gain
strength and where there is not yet enough practical experience behind it,
perhaps it would be wiser to refrain from allowing such questions to come
within the jurisdiction of the Constitutional Court, for at least the first
years of the activity of the Court.
I would like to say two words on preliminary and ex post facto forms of supervision.
Flowing from the role of constitutional supervision, priority should be given
to ex post facto supervision,
although in connection with international treaties, the forms of preliminary
supervision can also be used.
6. In
connection with the effectiveness of the Constitutional Court, guaranteeing the
execution of its decisions is of particular interest. In Article 25 of the
Organic Law of Georgia on the Constitutional Court it is directly stated that
“the decision of the Constitutional Court is final and its non-execution is
punishable by law”.
Decisions of common courts (civil, criminal) can be
executed by force where necessary. In cases of non-execution of a decision of
the Constitutional Court by the executive or legislative authorities there are
actually no means to compel the execution of the decision. This is why scholars
often conclude that the Constitutional Court should be an autonomous body, and
in my opinion modernisation and the refinement of the Constitutional acts
guaranteeing the execution of the decisions of the Constitutional Court are
necessary.
On the one hand, the Constitutional Court directly
performs the supervision of normative acts and hence supervises the body
adopting them, and on the other hand, the Constitutional Court carries out the
concretisation and development of the Constitution with the help of its
decisions, which on their part serve towards a better understanding of the
Constitutional Court. In both cases, the Constitutional Court should have a
rationalistic influence, which is possible only if the Constitutional Court
defends stable and clear principles of interpretation of norms while
considering and deciding cases and as far as possible avoids general and
indeterminate formulations of the law. This is of great importance for the
effectiveness of the Constitutional Court.
7. In order
to ensure the effectiveness of the Constitutional Court, independence of
judges, existence of a legislative basis for their immunities, privileges and
indemnities and their enforcement for life are of great importance. So too are
separation of the budget of the Constitutional Court from the common state
budget and independent distribution of this budget.
Great attention is paid by the Constitutional Court at
the time of taking decisions to finding the golden balance between policy and
justice, as the process of enforcement of the “political” decisions adopted by
the Constitutional Court is complicated in the post-soviet countries and is
somehow associated with more difficulties than in the countries having many
years' experience of constitutional supervision. For example, the activity of
the Constitutional Court of Russia, which, giving too much weight to policy
issues, questioned its own authority and put under suspicion its future
effective activity. e.g. by the opinion of Serge Pashin: “interference of the
Constitutional Court with political coalitions among the centre and
federation’s subjects, legislative and executive authorities and even with
certain groups of deputies is unavoidable.”
The very difficult conditions faced by the
Constitutional Court in Belarus may also serve as an example. Therefore, the
Constitutional Court as a kind of "negative legislator" should try to
find a balance between policy and justice.
8. I would
finally like to note the great role played by the people who serve the
Constitutional Court and are directly involved in carrying out constitutional
supervision. Their individuality, honesty and principles are of great
importance, as nowhere in the world has such a perfect law yet been created
that its effectiveness does not depend upon its executor.
Thank you for your attention.
FUNCTIONS OF A
CONSTITUTIONAL COURT / ELECTION OF JUDGES
by Mr Cesare PINELLI, Professor at the University of
Macerata, Italy
1. Introduction:
The main features of constitutional justice in Eastern European countries
2. Regulations
in the Georgian legal system:
a) on the appointments system for
constitutional judges
b) on the functions of the
Constitutional Court
1. In order to
comment on Georgia’s provisions about the structure and functions of the
Constitutional Court, the best thing to do is to look first at the introduction
of constitutional justice in Eastern European countries and in the now
independent republics of the ex-Soviet Union, after the end of communist
regimes.
Although Georgian problems are to a certain extent
specific ones, the introduction of constitutional justice in this country can
be related to tendencies common to those countries. It is possible to summarize
them as follows:
a) the
introduction of a Constitutional Court as a natural complement of the return
or the foundation of democracy;
b) the
choice for the Western European model of constitutional review;
c) the
tendency towards a Court whose main task is to prevent or compose conflicts
among political institutions, rather than to protect rights against political
power’s abuses;
d) the
tendency to superimpose on each other different ways of access to the Court,
different kinds of judgments and decisions.
a) Sooner or
later, all the Constitutions of these countries have introduced a judicial
authority of constitutional review. Also in the communist regimes there was a
constitutional court, but it was only apparently an authority of constitutional
justice. When you have a monolithic political power run by a central party, and
members of the Court are appointed by Parliament that is itself an expression
of the party, the Constitution cannot be the Higher Law, and there cannot be
any real constitutional justice.
Nevertheless, one should remember that in Western Europe
the wedding between democracy and constitutional justice has not been so easy,
and there are very important countries where you don not find constitutional
review of legislation, as in the United Kingdom, or you find it only to a
certain extent as in France. In these countries, the tradition of parliamentary
sovereignty is still held as the first value to preserve.
This means that separation of powers is a necessary but
not sufficient condition to have an effective constitutional justice. You need
an idea of constitution as the general frame where rights of individuals and
minorities are granted against the will of the law or the will of the political
majority of the country. If this is so, constitutional justice becomes the
necessary instrument of the Higher Law to be respected by everybody.
b) There are two different models of constitutional
justice. According to the American system of judicial review of legislation,
the ordinary judge who thinks the law contrary to the Constitution can decline
to apply it, unless the Supreme Court has ruled in the opposite sense.
According to the Western European system, which we find in Germany, Italy,
Spain, Austria and other countries, the ordinary judge who thinks the law to be
contrary to the Constitution is bound to ask the Constitutional Court to
adjudicate upon it.
As I said before, constitutional provisions of the
countries of Eastern Europe and of the ex-Soviet Union have chosen the Western
European model.
This is not surprising. Wherever you have hard conflicts
in the country, or you have a transition from an authoritarian regime to a
democratic one, you need a concentration of constitutional review in order to assure
the sovereignty of the Constitution over the law or the other expressions of
political power. In my country, the Constitution of 1948 introduced the
Constitutional Court, but the Court began to function only eight years later,
because there was a delay in approving the laws on the Constitutional Court.
Meanwhile, the Constitution had given to ordinary judges the power to decline
to enforce the laws they thought contrary to the Constitution. But in that
period, that is to say between 1948 and 1956, no such review took place, as
ordinary judges continued to follow the old tradition of considering themselves
bound by the laws. They viewed the Constitution only as a political document,
that Parliament was free to enforce.
The Western European system of constitutional review is
a concentrated one, in the sense that it does not allow the ordinary judges to
enforce directly the Constitution without the previous intervention of the
Constitutional Court. But this does not mean that the Court is concentrated in
the sense that, when the Constitution recognizes self-government of local
communities, or recognizes freedom of cultural, linguistic or ethnical
minorities (and a democratic Constitution has to recognize both), the Court has
to be considered the voice of the unitary State, or of the central political
body, against the will of local government or of minorities.
The difference between the two meanings of the term
“concentrated” is clear in the thought of Hans Kelsen, the father of the
Western European model of constitutional justice. In writing his famous essays
of 1920-1930, Kelsen never looked to the American model of constitutional
review, as he knew too well that it could not be a good solution for countries
where the sovereignty of the Constitution was still very hard to gain. He was a
partisan of a concentrated model of constitutional review.
Nevertheless, looking at the very different provisions
of the Austrian Constitution, which he had helped to write, and of Weimar’s
Constitution, he was convinced that one of the main tasks of a Constitutional
Court should have been to assure the supremacy of the Constitution over the
will either of the central or of the local bodies, even when the central body
claims that the local body’s behaviour threats the integrity of the Republic.
He pushed his persuasion to the point of saying that the best solution to
achieve this end, and to have a fair judgment, would be to let the members of
the Court be appointed in part from the central and in part from the local bodies
(H.Kelsen, Die Bundesexecution
(1927), in H.Kelsen, La giustizia
costituzionale, Giuffrè, Milano 1981, 119).
c) Constitutional scholars have pointed out that
constitutional provisions of Eastern Europe tend to see Constitutional courts
as authorities of preventing or resolving conflicts among political
institutions, rather than protecting rights against political power’s abuses.
They argue this tendency from the provisions about access to the court, which
is always reserved to political institutions and more rarely to ordinary
citizens, and also from the provisions about the acts which the Courts have to
judge. And their conclusion is that the authors of these Constitutions have
made their choice for constitutional justice so far it is maintained within the
borders of the relations between the same powers to whom the drafting of the
constitutional text can be related (see S.Bartole, Riforme costituzionali nell’Europa centro-orientale, Il Mulino,
Bologna 1993, 207, and F.Fede, La
giustizia costituzionale nei Paesi dell’Est europeo, in Giurisprudenza costituzionale, 1994,
730).
I agree with them, and one reaches the same conclusion
looking at the constitutional provisions of the Republics of the ex-Soviet
Union, including Georgia.
I think that this agreement leaves room for at least two
caveats. First, one has always to be
careful of the unintended consequences, and constitutional justice is no
exception. Second, this is even more true where, as the same scholars point out
in their studies on constitutional justice of these countries, different kind
of access, judgments and decisions are superimposed each other.
In the Western European experience, we must keep in mind
two examples of constitutional courts conceived to resolve conflicts between
State powers: the Staatsgerichtbarkeit of
Weimar’s Constitution and the Conseil
Constitutionnel of the French Fifth Republic.
The first tribunal was conceived as an authority for
resolution of conflicts between State powers or between the members of the
Federation and the Federation itself. It was called to adjudicate upon the
political substance of the conflict, without regard to the constitutional
framework. The story of Staatsgerichbarkeit
was a tragic one, since it decided the constitutional controversy between Prussia,
run by the socialdemocrats, and the President of the Federation, whose decrees
had repressed Prussian autonomy according to Article 48, 2 par., of the
Constitution, in the sense that those decrees were legal. This decision helped
Hitler in pretending his rise to power as a legitimate one.
The story of the Conseil
Constitutionnel is very different. De Gaulle, Fifth republic’s builder,
wanted this authority mainly to preserve the space reserved by Article 38
of the Constitution to acts of government (domaine
du règlement) against any interference of the laws. These straight
limitations on the laws, and the interventions of the Conseil, were not conceived to let the supremacy of the
Constitution prevail, but only to give a clear cut superiority of parliamentary
sovereignty over the executive power. Nevertheless, in the first occasion to do
so (1971), the Conseil began to
behave differently from what the political majority expected from it, saying
that its task was to assure the citizen’s rights written in the Declaration of
1789 and in the Constitution of 1946. Notwithstanding its peculiarities, the Conseil seems now to function in a way
which is more similar to that of other european Courts.
What do these very different examples teach us? They
teach that historical situations are fundamental for the path of constitutional
justice, and this seems well known, if not obvious. But they teach also that
there is a ‘magic moment’ in the history of Courts, in which the culture and
responsibility of constitutional judges, their will and skill in letting the
Constitution prevail over the laws, or other expression of political power,
play a prominent part. This moment can be 1802, as for the American
Supreme Court, 1971, as for the Conseil
Constitutionnel or 1956, that is to say the first decision of the Italian
Constitutional Court. But, sooner or later, this moment arrives.
This is one reason why the model of constitutional
justice the framers of the Constitution intended to introduce does not play a
prominent role in the experience of the Courts, or, as it is said, in the
living Constitution. The Constitution itself, provisions on the functions of
the Constitutional Court included, needs always to be interpreted, and this is
precisely the Courts' duty.
d) Another reason why I am sceptical about the
self-sufficiency of the intent of the Framers, and even of constitutional
provisions, in telling us what will a Court be is more specific to the
countries we are now considering.
This reason belongs to the fact that the functions of
the Courts are often drafted in a somewhat confused way. As I have said, many
scholars have noticed that the Courts have competence for different kinds of
constitutional review, especially the review prior to the enforcement of the law
by judges and the review which is born by the application to the Court of an
ordinary judge.
Confusion is surely a problem, but it leaves also on the
shoulders of the judges the opportunity of clearing up their main tasks and
their ultimate role in the constitutional framework.
It is only necessary to add that, the more prevails a
constitutional review which is prior to the enforcement of the law, we call it
a priori or abstract control, the more the Court remains near to the political questions
the law may pose, and to the political matters at stake. And viceversa: the
more prevails a review which depends on the ordinary judge’s doubt about the
constitutional legitimacy of the law, the more the Court grows in its
independence and self-confidence, becoming a real judge. The experience of Conseil Constitutionnel, which has the
first competence, compared to the experience of other Courts, must be kept in
mind.
In some of these Constitutions (e.g. Article 125,
par. 5, Constitution of Russia), Courts have also to give advice on the
interpretation of the Constitution, if political institutions ask them to do
so. This function is even more abstract than review a priori of the law, as it
may be exercised in respect of any act, or even simple behaviour, of political
institutions. I think that there is a real danger for the Courts. They may be
involved in questions that should rely entirely upon the political institutions
responsibility.
2. According to Article 88, par. 2, of the Constitution of
Georgia, “The Constitutional Court of Georgia consists of nine judges. Three
members of the court are appointed by the President, three members are elected
by the Parliament by three fifths of the total number of deputies and three
members are appointed by the Supreme Court”. And par. 4 states that “A member
of the Constitutional Court must be a citizen of Georgia who has attained the
age of 35 years and has a higher legal education”. Articles 5, 6 and 7 of the
law on the Constitutional Court repeat the content of those statements.
The mixed solution of appointing one third of
constitutional judges by the President, one third by Parliament and one third
by superior courts has been adopted by the Italian Constitution of 1948, and it
plainly functions well.
Nevertheless, the Italian Constitution differs from the
Georgian over the standards required in order to be appointed constitutional
judge. In Italy, constitutional judges have to be chosen among judges of the
superior courts, or University professors in law, or lawyers with at least
twenty years professional background.
Obviously, I am not suggesting that this is the only
possible solution. I can understand why, in a new democracy, the age standard
is lower than in other countries. I just want to add that the “higher legal
education” seems a too low standard. I think that here the institutions called
to appoint the members of the Court can exercise very widely their
discretionary power. And requesting quotas of different kind of legal
professions improves the circulation of experiences inside the Court, its
cultural standard and its independence.
Another impression touches the way constitutional
provisions, including those regarding the structure and functions of the
Constitutional Court, have faced the great problem of a peaceful coexistence
between Georgians and the minorities living in the same Republic of Georgia.
From one side, according to Article 1 of the
Constitution, “Georgia is an independent, unified and indivisible law-based
state, ratified by the referendum carried out in March 31st, 1991 throughout
the territory of the country, including the then Autonomous Soviet Socialist
Republic of Abkhazia and the former autonomous oblast of South Ossetia”, and
Article 2, par. 1, forbids “the transfer of the territory of Georgia”.
From another side, Article 2, par. 4, states that
“Citizens of Georgia regulate matters of local importance through self
government as long as this does not encroach upon state sovereignty. The right
to create self governing bodies, their powers and their relationship with state
bodies, is determined by organic law”, Article 8 grants the integrity of
Georgian and Abkhazian language in Abkhazia, and especially Article 4 states
that “Once there are appropriate conditions and when self-governing
bodies have been created over the whole territory of Georgia, Parliament will
be formed with two chambers: namely the Council of the Republic and the Senate”
(par 1), and that “The Senate will consist of members elected from Abkhazia, Adjaria
and other territorial units of Georgia as well as five members appointed by the
President” (par. 3).
These provisions seem to reflect the intent of building
a Republic with large self-governing bodies, and even a representative
chamber of these bodies, but also the conviction that this kind of Republic
cannot be built now, and will not be built until the end of armed conflicts
between the State of Georgia and the political movements that are contesting
its legitimacy in some part of the land (see B.G.Hewitt, Demographic Manipulation in the Caucasus (with Special Reference to
Georgia), in Journal of Refugee
Studies, Vol. 8, 1995, 48 ss.; J.Radvanyi, La Géorgie aux prises avec ses archaismes, in Le Monde diplomatique, 1995; A.G.Zdravomyslov, National-Ethnic Conflicts and the Formation of a Russian State,
in Russian Politics amd Law, 1995, 8
ss.).
How does this kind of arrangement reflect itself on the
composition and functions of the Constitutional Court?
We have seen that three constitutional judges are
elected by three fifths of the total number of deputies. If the three
constitutional judges elected by Parliament have to obtain the majority of
three fifths of the total number of deputies, this means that also when the
minorities will be represented in the Senate, they will not have any chance to
be represented in the Court, unless the majority decides to vote for one
minority candidate.
The solution envisaged by the authors of the
Constitution for what concerns the Court’s composition seems to deny any
possibility for minorities to be represented in the Court, and this not only
until the “appropriate conditions” of article 4 will appear, but also after.
This solution is not surprising if we look at the constitutional provisions of
countries where the tradition of the central State is stronger, but it appears
less suitable where self-governing bodies are expected to be created, and
are represented in the Senate.
It is worth adding that, according to Article 89 of the Constitution
and to Article 34 of the law on the Constitutional Court, the representative
bodies of Abkhazia and Adjana have a right of access to the Court against laws
of the State which could infringe their autonomy.
I cannot say if the solution envisaged for the
composition of the Court is the most suited from a political point of view.
What I can say is that the famous dictum “If you want
peace, prepare war” does not apply to constitutions, whose promise is a promise
not only of peace, but also of self-respect and mutual respect among different
communities. The dictum of constitutions can only be: “If you want peace,
prepare it”.
3. If we now consider the functions of the Court, we have
to compare constitutional provisions with the law on the Constitutional Court.
Article 107, par. 3, of the Constitution states that “The organic law on the
Constitutional Court is to be adopted before February 1st., 1996”, and this
deadline has been respected. There must have been a particular need for an
immediately functioning Court. For this same reason, the law seems sometimes
more fit for emergency than for giving a definite and organic settlement to
Georgian constitutional justice.
For example, it is unclear to me the relationship
between Article 20, that seems to give the court a general right to apply to
the Constitutional Court during a process, and Article 39, according to which
“legal persons and individuals of Georgia and other states” can submit to the
Court the compliance of violation of the second chapter of Georgian
Constitution by normative acts. These are two different ways of access to the
Court on the same issues, since also the right of the court to apply to the
Constitutional Court would concern violations of the second chapter of the
Constitution. If that is so, the law does not choose among these different ways
of access to the Constitutional Court.
The need to face emergency seems also to arise from the
function of considering “questions of constitutionality of the creation and
activity of political parties”, reserved to the Constitutional Court by Article
89, par. 1, c) of the Constitution and Article 19, c), of the law in the
Constitutional Court.
This provision gives the Court a very delicate task.
Article 26 of the Constitution states that “Citizens of Georgia have the right
to create political parties or other political organisations in accordance with
organic law and participate in their activities” and considers “impermissible”
the creation and activities of parties whose goal is to overthrow or change the
Georgian order by force, or violate the country’s integrity or independence or
attempt to induce ethnic, racial, social, national unrest.
These are the standards which the Court has to consider
in the case of submission of such an issue of constitutionality, which,
according to Article 35 of the law, can be introduced by the President and not
less than one fifth of MP, and the state bodies of Abkhazia and Adjara.
The nearest comparison here is with Article 144, i), of
the Constitution of Romania, which gives the Constitutional Court the power to
resolve the issues of the constitutionality of a political party, while the
Constitutions of other Eastern European countries as Poland and Hungary do not
provide such a function, and even the new Russian Constitution of 1993 has
abolished the provision of April 1992, which led to the famous decision of the
Russian Constitutional Court of December 1993 on the constitutionality of the
PCUS.
It is worth adding that Article 21 of the German Constitution
gives to the Constitutional Court the power to declare unconstitutional parties
whose goal is to damage or destroy the liberal and democratic order of the
country.
Nevertheless, there is a big difference between the
Georgian and the German provisions, since the latter presupposes a full freedom
to create parties, whatever their ideology they may have.
The power to declare unconstitutional a political party
not by its activities, but by its creation, looks very different, especially if
we look at Article 35 of the law, which gives central and local political
institutions the right to submit this issue to the Court.
Through these questions, we touch the crucial point for
the development of a really independent Constitutional Court.
Concern for the Court’s independence is clear in Article
2 of the Law on the Constitutional Court, according to which “the Court
performs its activities on the bases of legality, cooperation, openness,
equality and adversary powers within the whole term of its authority on the
basis of the independence, immunity and the tenure of members of the
Constitutional Court”.
Such an independence can be reached more by a profound
and continuous dialogue between judges, citizens and the Constitutional Court,
and, consequently, by the growth of a constitutional conscience, rather than by
the prevention or the resolution of conflicts between political institutions,
or the resolution of the issues of constitutionality of the creation of
political parties. The latter competence contrasts sharply with the growth of
an independent Court, since it necessarily involves it in partisan conflicts.
In that regard, the difficulties met by the Russian Constitutional Court in the
PCUS case should be particularly remembered.
Georgian constitutional order lives indeed a very
delicate transition, and even the provisions I have mentioned can confirm it.
But the Georgian Constitution and the Law on the Constitutional Court can
surely be considered a good basis to have a well-functioning Court and, by this
way, a democratic and peaceful development of the country.
INDIVIDUAL
COMPLAINT PROCEEDINGS BEFORE CONSTITUTIONAL COURTS
by Mr Arne MAV_I_, Constitutional Court, Ljubljana
The Citizen as an
Applicant Before the Constitutional Court
The proceedings before the Constitutional Court have the
nature of proposed proceedings (juridiccion
voluntaria). In principle, the
Constitutional Court cannot itself initiate the proceedings; as a rule, the
proceedings before the Constitutional Court are based on (restricted to) the
corresponding application lodged by a special, duly qualified constitutional
institution (the so-called legitimate petitioners). Initiation of
constitutional review proceedings on the own initiative of the Constitutional
Court (ex officio) is quite rare.
Still it may most often be traced to the constitutional review systems of
Eastern Europe; it is indeed strictly preserved in Croatia (Paragraph 2 of
Article 15 of the Croatian Constitutional Court Act). Elsewhere, ex officio proceedings are not as
frequent. The Austrian Constitutional Court, for example, may on its own
initiative begin the proceedings for the constitutional review of a statute or
a regulation only if it refers to a prejudicial question under the proceedings
before the respective Constitutional Court. All the above cases may be referred
to as objective forms of constitutional review.
On the other hand, some constitutional review systems
also allow for the private individual's access to the Constitutional Court in
the form of abstract or specific review, based on the constitutional complaint,
on the actio popularis and on other
forms of constitutional rights' protection. It involves the so-called
subjective constitutional review, violation of individuals' rights and
safeguard of individuals' rights against the state (in particular against the
Legislature). In the states with diffuse constitutional review and in some
states with concentrated constitutional review individual citizen is offered
the possibility to request the constitutional review of statutes,
administrative measures or judgments in special proceedings. Only after a
complaint has been lodged the
Constitutional Court will begin proceedings. Even then, as a rule, the
complainant may withdraw his/her complaint in order to terminate the respective
proceedings. The individual's standing as complainant before the Constitutional
Court has been influenced by extensive interpretation of provisions relating to
the constitutional complaint, as well as by ever more extensive interpretation
of the provisions relating to the specific review (USA, Switzerland, Greece,
Italy). In some systems the individual's access to Constitutional Courts has
become so widespread that it already threatens the functional capacity of the
Constitutional Court (Germany). Therefore, the Legislature are trying to find
some way for Constitutional Courts to get rid of less important or hopeless
proceedings (e.g. restriction of
abstract review with standing
requirements). All these proceedings envisage the condition that the
complainant must be affected by a certain measure taken by the public
authority. With the growth of the number of complaints the percentage of their
efficiency decreases. Nevertheless, citizens have more possibility for
protection of their constitutional rights. France is an exception among these
systems, where private individuals have no access to the Constitutional
Council, except with reference to elections. In France, the protection of
individual's rights is, however, the task of the Conseil d'Etat acting on the basis of complaints against
administrative acts.
The petition of an affected individual whose
constitutional rights are claimed to have been violated is generally the basis
of an appropriate procedure of protection in which protection of rights by the
Constitutional Court is only one of a number of legal remedies for protection.
Even the bodies intended to provide protection are different, depending on the
specific system in question.
I. RIGHTS MAY BE
PROTECTED IN REGULAR COURT PROCEEDINGS
a) Some legal systems provide protection of rights
predominantly in proceedings before Courts with general powers; for the most
part these are States which have also adopted the so-called diffuse or American
model of judicial review .
The following are specific forms of protection of rights
by the regular Courts:
b) Habeas corpus
procedure i.e. the protection from
unjustified deprivation of liberty; an appropriate application is lodged with
the regular Court having such jurisdiction. Such proceedings are characterised
by speed, simplicity and openness.
c) Habeas data,
which is a sub-form of habeas corpus
and was introduced in Brazil with the Constitution of 1988. It is a
constitutional guarantee of a personal decision about information, in essence
the protection of personal data.
d) Further proceedings are recognised mainly by states
which have adopted the American model of judicial review.
- the writ of mandamus,
whereby it is possible to annul a mistake of a lower Court by order of a higher
Court;
- prohibition, preventing the higher Court from usurping
the jurisdiction of a lower Court;
- the writ of certiorari,
as the right of a higher Court to resolve a case from the jurisdiction of a
lower Court;
- quo-warranto
preventing a specific person from performing a function of a public nature
which she/he has usurped.
e) Respondeat superior is a compensation claim by an individual against the
state (USA and on the American model, also Taiwan).
2. A specific form of protection of rights which is
reminiscent of constitutional complaint, is the so-called amparo. This is an universal and a traditional form of human
rights' protection in the Hispanophone legal system: the protection of an
individual from violations of constitutional rights by government acts of all
categories. In the main, the Supreme Courts of the state in question are
responsible for this form of protection. The aim of such proceedings is to
restore the violated right to the state prior to its violation. It is also a
characteristically fast procedure. Mexico is the classic amparo state. It is followed by many Central and South American
States.
3. Subsidiary amparo
is still more similar to a constitutional complaint. This is a particular sub-species
of amparo, in that the procedure
takes place before the Constitutional Court (Spain, Colombia). This form of
protection is also called accion de
tutela. Colombian accion de tutela
is comparable to the constitutional complaint.
It was introduced by the Colombian Constitution of 1991. It is characterised by
the fact that the circle of protected constitutional rights is explicitly
defined. It is possible to annul legal or administrative acts (in addition to actio popularis and proceedings of habeas corpus in Colombia).
4. Brazil introduced a number of specific legal remedies
for the protection of human rights in its Constitution of 1988, including:
- mandado de
seguranca. A wider form of protection for which the Supreme Court is
competent, for the protection of rights not covered by habeas corpus;
- mandado de
injuncao, a special individual
complaint for a case of negligence of the Legislature.
5. Chile introduced a special modified version of amparo, the so-called recurso de proteccion in the
Constitution of 1980.
6. An actio
popularis may, equally, be lodged
by an individual, generally without restrictions (the exceptions are Slovenia
and Hungary, where it is restricted by demonstration of standing by the
complainant). It is a special, individual legal remedies for the judicial
protection of rights, although intended for the protection of fundamental
rights in the public interest (while a constitutional complaint is lodged in
the interest of the individual). An actio
popularis is normally directed
against a general act (usually statute) which is considered to have violated a
constitutional right. The Constitutional Court is generally the competent body
for reaching a decision, which deals with the disputed act in the sense of an
abstract review of rules. Actio popularis
is less common in Europe (Bavaria-although in other German provinces and on a
federal level there is no actio popularis,
Hungary, Slovenia, Croatia, Liechtenstein, partly Czech Republic, Macedonia, Malta
and FRY and within its framework, Montenegro). In Israel the actio popularis is common in cases
arising within Israel proper, the right to standing is decided mostly by the
Court's willingness to grant it. It is most extensive in Central and South America
(Costa Rica, El Salvador, Panama, Colombia, Venezuela, Brazil, Peru, Paraguay,
Argentina. actio popularis is a relatively rare
approach in Africa (Benin, Congo, Gabon, Burkina Faso, Ghana, Niger, Sierra
Leone-according to the 1991 Constitution) while in Asia, actio popularis is only recognised in Japan, and only in electoral
matters (as a people's action or objective action) and in Iran (complaint
before the Court of Administrative Justice).
7. A specific group of systems of constitutional law guarantees
the individual only an indirect protection, such that the individual does not
have direct access to the Constitutional Court or other body of constitutional
review. These are systems that consider the protection of the rights of the
individual are satisfied through:
- abstract review of rules (Poland, Belarus, Cambodia,
Bulgaria, Italy, Belgium); or
- specific review of rules (Bulgaria, Kazahstan, Bosnia,
Italy); or
- preventative abstract review of rules (France).
II. CONSTITUTIONAL COMPLAINT
AND ITS EXTENT IN THE WORLD
A constitutional complaint is a specific subsidiary
legal remedy against the violation of constitutional rights, primarily by
individual acts of government bodies, which enables a subject, who believes
that his/her rights have been affected, to have his/her case heard and a
decision made by a Court authorised to provide constitutional review of
disputed acts. Generally, the impugnment refers to individual acts (all
administrative and judicial acts), in contrast to the actio popularis, although it may also indirectly (Slovenia, Spain)
or even directly (Germany) refer to a statute.
Is constitutional appeal a right? The Slovenian
Constitutional Court has taken the view that it is an institute of judicial
proceedings, or a special legal remedy (Ruling No. U-I-71/94 of 6 October 1994,
published in the Official Collection of Decisions No. 109/III).
The constitutional complaint is not an entirely new
institute; its forerunner may be found in the Aragon law of the 13th to 16th
Century (in the form of recurso de
agravios, firme de derecho, manifestacion de personas); in Germany from the
15th Century onwards, incorporated in the institution Reichskammergericht of 1495, envisaged in the famous constitutional
text, Paulskirchenverfassung, of
1849, and in Bavaria it was envisaged in the Constitutions of 1808, 1818, 1919
and 1946; while Switzerland introduced a
special constitutional complaint (Staatliche
Verfassungsbeschwerde) in the
Constitution of 1874 and in the Statutes of 1874 and 1893.
The constitutional complaint is very common in systems
of constitutional/judicial review. It is most widespread in Europe (Russia,
Cyprus, Malta, Czech Republic, Slovakia, Hungary, Albania, Macedonia, Croatia,
Slovenia, Austria, Andorra, Switzerland-Supreme Court, Germany, Spain,
Liechtenstein (1992), Portugal and FRY-on the federal level and in Montenegro).
In Germany, the constitutional complaint appears on the federal and on
provincial levels.
Outside Europe, the following systems recognise
constitutional complaint: Georgia (the
power of the Constitutional Court), Kirghizia (the power of the
Constitutional Court), Mongolia (the power of the Constitutional Court since
the Constitution of 1992), South Korea (the power of the Constitutional Court
since the Constitution of 1987), Taiwan (Supreme Court), Papua-New Guinea
(Supreme Court), Syria (Constitutional Court). It should additionally be noted
that other Arabian countries, if they recognise judicial review at all, have in
the main adopted the French system of preventative review of rules following
the model of the French Constitutional Council of 1958, which does not
recognise the right of the individual to direct access to specific
constitutional/judicial review bodies. In Africa, only the following states
recognise the constitutional complaint: Sudan (Supreme Court), Mauritius
(Supreme Court), Senegal (Supreme Court) and Benin (Constitutional Court). The
only example of constitutional complaint in Central and South America is the
Brazilian mandado de injuncao, i.e. an individual complaint in cases of negligence of the Legislature (the
power of the Supreme Court) unless we also count the Colombian accion de tutela (the power of the
Constitutional Court) usually considered to be a subsidiary amparo.
The particularity of individual systems is that they
recognise a cumulation of both forms, the popular and the constitutional
complaint (Slovenia, Croatia, Macedonia, Bavaria, Hungary, Malta, FRY and
Montenegro, Colombia and Brazil. The two forms may compete in their functions.
The rationale for both forms is protection of constitutional rights, the actio popularis in the public and the
constitutional complaints in the private interest. In both cases the plaintiff
is an individual. As a rule the subject disputed is different: actio popularis refer to general acts and constitutional
complaints refer to individual acts (except for the possibility of indirect
impugning of the statute in Slovenia, Spain, FRY and Montenegro, and the direct
impugning of the statute in Germany). The standing of the plaintiff or the
personal effect the remedy might have upon the plaintiff is a precondition of
constitutional complaint. Although it should be possible to exclude the
standing of the appellant as a precondition for the actio popularis, individual systems do require it for actio popularis (Slovenia, Macedonia),
such that both in the case of constitutional and in the case of actio popularis, the standing or the
personal effect on an individual works as a corrective with the aim to prevent
the abuse and overburdening of the Constitutional Court or other
constitutional/judicial review body. In both cases the same aim may be pursued
through the introduction of the payment of tax upon submission. It is, however,
characteristic that in practice the number of constitutional complaints is
increasing everywhere. Therefore, many Constitutional Courts have adapted the
organisation of their work to this principle either in the form of specialised
individual senates for constitutional complaints (e.g. the German Federal and the Spanish Constitutional Courts) or
by the fact that decisions on constitutional complaints be taken by narrower
units of the Constitutional Court (senates, sub-senates, e.g. in Slovenia).
The following are the elements of the institute of
constitutional complaint:
- system of prior selection of complaints in the
proceedings (integration of filters into the proceedings) most highly developed
in the German system with intent to sift out potentially unsuccessful
complaints, whereby the maneuvering space of the Constitutional Court in
rejecting a frivolous complaint is extended. This, in fact, involves the
narrowing of the constitutional complaint as a legal remedy in principle open
to everybody. As a matter of fact, there is a general problem in Constitutional
Courts as to how to sift the wheat from
the chaff and at the same time secure the efficient protection of human rights
as the symbol of the democratic system. Individual systems of constitutional
review still present this dilemma: in certain systems the proposals for
introduction of a constitutional complaint are of recent introduction; some of
those familiar with this legal institution tend to introduce prior selection
systems; on the other hand, certain systems tend towards the abolition of this
legal institute;
- protection through constitutional complaint generally
refers to constitutional rights and freedoms, and the circle of rights
protected by constitutional complaint is less specifically defined in
individual systems (e.g. Slovenia,
Croatia, FRY and Montenegro, where "all" constitutionally guaranteed
fundamental rights are supposed to be protected), while other systems mostly
define (narrow) the circle of protected constitutional rights.
Special forms of constitutional complaint may also
protect special categories of rights;
- as a rule, for acts disputed by constitutional
complaint; the suspected sources of violations of constitutional rights and
freedoms are individual acts, with some exceptions ;
- those entitled to lodge a constitutional complaint are
generally individuals but in Austria, Germany, Spain, Switzerland, FRY and
Montenegro, also legal entities explicitly, while in the Croatian system a legal
entity is explicitly excluded as a potential appellant; in some systems, the
complaint may be lodged by the Ombudsman (Spain, Slovenia, FRY) or by the
public prosecutor (Spain, Portugal).
- standing, or the personal effect the remedy might have
upon the plaintiff, as a mandatory element though in the majority of systems
the concept of standing is fairly loosely defined;
- the prior exhaustion of legal remedies as an essential
precondition but with exceptions when the Constitutional Court may deal with a
case irrespective of the fulfillment of this condition (Germany, Slovenia,
Switzerland);
- the time limit for lodging the application ranges from
20 days to three months with an average of one month beginning with the day of
receipt or delivery of the final, legally binding act;
- the prescribed contents of the application, are
prescribed in detail in the majority of systems: written form, sometimes
language explicitly stated (Germany, Austria), citing of the particular state,
the disputed act, definition of the violation of a constitutional right, etc.;
- the majority of systems envisage the issuing of a
temporary restraining order or ruling (of the Constitutional Court) i.e. an order temporarily freezing the implementation of the disputed
act till the adoption of a final decision;
- in some systems the payment of the costs of the
proceedings is explicitly foreseen in cases of frivolous applications (Germany,
Austria, Portugal, Spain, Switzerland);
- the effects of the
decision: the Constitutional Court is limited in its decision to
constitutional matters, to the violation of constitutional rights. However,
where a violation is found, a decision may have a cassatory effect and as a
rule inter partes (and erga omnes in a case in which the
subject-matter of the decision is a legislative measure). The Constitutional
Court here retains the position of the highest judicial authority. These Courts
can be referred to as superCourts of cassation, because Constitutional Courts
reviewing the decisions of the regular Courts act in fact as the third and the
fourth instance. Although the Constitutional Court is not a Court of full
jurisdiction, in specific cases it is the only Court competent to judge whether
a regular Court has violated the constitutional rights of the plaintiff. It
involves the review of microconstitutionality, maybe the review of
implementation of the law, which, however, is a deviation from the original
function of the Constitutional Court. Cases of constitutional complaint raise
sensitive questions of defining constitutional limits. Anyway, the
Constitutional Court in its treatment and decision-making is limited strictly
to questions of constitutional law. The Slovenian system is specific in that
the Constitutional Court may, under specified conditions, make a final decision
on constitutional rights or fundamental freedoms themselves (Paragraph 1
of Article 60 of the Slovenian
Constitutional Court Act, Official Gazette of the RS, No. 15/94).
The protection of fundamental rights and freedoms is an
important function of the majority of Constitutional Courts, irrespective of
whether they perform the function of constitutional judgment in the negative or
positive sense. Whenever a Constitutional Court has the function of the
"negative Legislature", constitutional review is strongest precisely
in the field of fundamental rights. Even in other fields (concretisation of
state-organisational and economic constitutional principles) in which the
Legislature has the primary role even in principle, Constitutional Courts take
care that fundamental rights be protected. Precisely in the field of the
protection of rights, the Constitutional Court
also has the function of the substitute "Constitution-maker"
("positive function"), which means that in specific cases
Constitutional Courts even supplement constitutional provisions.
III. INTERNATIONAL
FORMS OF INDIVIDUAL COMPLAINT
1. The concept of "constitutional complaint" is
usually connected with the national constitutional protection of fundamental
rights. However, certain international documents also envisage a specific legal
remedy of protection of fundamental rights and freedoms in the form of a
complaint.
2. The European
Convention for the Protection of Human Rights and Fundamental Freedoms of 4
November 1950 gives individuals the right to the so-called individual complaint
(Article 25 of the Convention). An individual may lodge a complaint with the
European Commission for Human Rights because of an alleged violation of rights
guaranteed by the Convention. It is an explicit international legal remedy comparable with the national
constitutional complaint. It fulfills its function of the individual complaint
where national law does not guarantee any appropriate protection of rights.
Individual complaint is a subsidiary legal remedy (preconditioned on the
exhaustion of the national legal remedies), it is not a actio popularis and it does not have a retroactive or cassatory
effect. It differs from the constitutional complaint in the way that, contrary
to the latter, it leads merely to a finding (declaratory relief).
The position of the European
Convention for the Protection of Human Rights and Fundamental Freedoms in
national law specifies whether an individual may refer to the Convention or
even base a national constitutional complaint thereon. It further narrows the
maneuvering space of the Constitutional Court itself in the interpretation of
the provisions of the Convention. It has actually become a connection of the
national Constitutional Court to the European bodies in cases in which a
judicial decision as a final national outcome of decision-making becomes the
subject of an individual complaint to a European forum.
3. Slovenia signed the European
Convention for the Protection of Human Rights and Fundamental Freedoms on
14 May 1993 and ratified it on 8 June 1994 (Official Gazette of the RS,
International Contracts, No. 33/94). The Slovenian Constitution of 1991
resolves these questions in specific constitutional and legal provisions:
Statutes and other regulations must be in accordance with the generally valid
principles of international law and with international contracts to which
Slovenia is bound. Ratified and promulgated international contracts must be
applied directly (Article 8 of the Constitution). The Constitutional Court
decides on the accordance of statutes and other regulations with the ratified
international contracts and general principles of international law (subsection
2 of Paragraph 1 of Article 160 of the Constitution; subsection 2 of
Paragraph 1 of Article 21 of the Constitutional Court Act.
The institution of constitutional complaint and European
complaint and the function of European bodies (above all the European Court of
Human Rights) raises the question of national and supra-national (final)
instance. The national (final) instance: the Constitutional Court as the
highest body of judicial authority in a particular state for the protection of
constitutionality and legality and human rights and fundamental freedoms (the
status of the Constitutional Court is thus defined in e.g. Paragraph 1 of Article 1 of the Constitutional Court Act of 1994) would be limited to investigation
of constitutional-legal questions only. Review of the correct finding of the
actual circumstances and the use of simple rules of evidence is a matter for
the regular Courts. The subsidiary nature of a constitutional complaint also
lies in the division of responsibility between the Constitutional and the
regular Courts. The gradation of instance could be established as ascending
from the national Supreme Court through the national Constitutional Court to
the European Commission or European Court. In fact, instance is not the essence
of this gradation although it is essential in the role of supplementing, which
means that the national constitutional complaint supplements national judicial
protection while supra-national European complaint supplements national
constitutional complaint.
IV. SLOVENIA
1. History
With the introduction of the Constitutional Court by the
Constitution of 1963 the then Slovenian Constitutional Court also acquired
jurisdiction over the protection of the fundamental rights and freedoms. It could
also decide on the protection of self-government rights and other fundamental
freedoms and rights determined by the then Federal and federal state
Constitutions in case these were violated by an individual act or deed by a
federal state or communal body, or company in case such protection was not
guaranteed by some other form of judicial protection or by statute
(Paragraph 3 of Article 228 of the Constitution of the SRS of 1963 and the
Constitutional Court Act, Official
Gazette of the SRS, No. 39/63 and 1/64). The decision of the Constitutional
Court in such proceedings had a cassatory effect in the case of an established
violation (annulment or invalidation or amendment of an individual act and the
removal of possible consequences; prohibition on the continued performance of
an activity). The jurisdiction of the Constitutional Court was, therefore,
subsidiary. It was possible to initiate proceedings only if, in a specific
case, there was no judicial protection envisaged, or if all other legal remedies
were exhausted.
However, in practice, the then Constitutional Court
rejected such individual suits on the basis of absence of power and directed
the plaintiff to proceedings before the regular Courts. Such a practice also
created a certain negative attitude of the Constitutional Court itself, since
it knew in advance that it would reject such suits and thus carry out a
never-ending task. The then Constitutional Court itself warned that in relation
to individual acts, the most sensible solution would be for decisions to be
transferred, as a whole, to the regular Courts. The negatively arranged
jurisdiction of the Constitutional Court (whenever other legal protection was
not provided) resulted in the fact that its activities in this field showed no
results, although this activity was initiated precisely because of a complaint
for the protection of rights. However, the then system of the constitutional
review guaranteed through the individual the right of actio popularis without the appellant having to demonstrate his/her
own standing.
From then on, the constitutional complaint no longer
found any place in the system, until it was again introduced by the
Constitution of 1991. This specific legal remedy thus remained combined with
the previous system, i.e., with the
possibility of lodging a actio popularis
(Paragraph 2 of Article 162 of the Constitution of 1991; Article 24 of the
Constitutional Court Act of 1994)
with the Constitutional Court - despite
the individual as petitioner having to demonstrate his/her standing - which in
effect limits the procedural presumption). Accordingly, an individual may
impugn all categories of (general) act by lodging a constitutional or actio popularis if he/she is directly
aggrieved.
2. The
Constitutional Complaint System in Slovenia
The provisions of the Slovenian Constitution of 1991
that regulate constitutional complaint in detail are relatively modest
(Articles 160 and 161 of the Constitution). However, the Constitution itself
(Paragraph 3 of Article 160 of the Constitution) envisages special statutorial regulating (provisions
of Articles 50 to 60 of the Constitutional
Court Act, Official Gazette of the RS, No. 15/94).
The Constitutional Court decides cases of constitutional
complaints alleging violations of human rights and fundamental freedoms
(subsection 6 of Paragraph 1 of Article 160 of the Constitution). The protection thus embraces all
constitutionally guaranteed fundamental human rights and freedoms
including those adopted through international agreements which have become part
of the national law through ratification.
Any legal entity or natural person may file a
constitutional complaint (Paragraph 1 of Article 50 of the Constitutional Court Act), as may the
Guardian of Human Rights (Ombudsman) if directly connected with individual
matters with which he deals (Paragraph 2 of Article 50 of the Constitutional Court Act), although
subject to the agreement of those whose human rights and fundamental freedoms
he is protecting in an individual case (Paragraph 2 of Article 52 of the Constitutional Court Act). The
subject-matter of constitutional complaint is an individual act of a government
body, a body of local self-government, or public authority allegedly violating
human rights or fundamental freedoms (Paragraph 1 of Article of the Constitutional Court Act).
The precondition for lodging a constitutional complaint
is the prior exhaustion of legal
remedies (Paragraph 3 of Article 160 of the Constitution;
Paragraph 1 of Article 51 of the Constitutional
Court Act). As an exception (only the German and Swiss systems recognise
such an exception) to this condition the Constitutional Court may hear a
constitutional complaint even before all legal remedies have been exhausted in
cases of prima sacre violations and
if the carrying out of the individual act would have irreparable consequences
for the complainant (Paragraph 2 of Article 51 of the Constitutional Court Act).
A constitutional complaint may be lodged within sixty
days of the adoption of the individual act (Paragraph 1 of Article 52 of
the Constitutional Court Act), though
in individual cases with good grounds, the Constitutional Court may decide on a
constitutional complaint after the expiry of this time limit (Paragraph 3
of Article 52 of the Constitutional Court
Act). The complaint must cite the disputed individual act, the facts on
which the complaint is based, and the suspected violation of human rights and
fundamental freedoms (Paragraph 1 of Article 53 of the Constitutional Court Act). It shall be
made in writing and a copy of the respective act and appropriate documentation
shall be attached to the complaint (Paragraph 2 and 3 of Article 53 of the
Constitutional Court Act).
In a senate of three judges (Paragraph 3 of Article
162 of the Constitution; Paragraph 1 of Article 54 of the Constitutional Court Act) the
Constitutional Court decides whether it will accept or reject the
constitutional complaint for hearing (or its allowability) at a non-public
session. The Constitutional Court may establish a number of senates depending
on the need. The ruling of the
Constitutional Court on the allowability of a constitutional complaint
(Paragraph 3 of Article 55 of the Constitutional
Court Act) is final. The constitutional complaint may be communicated to
the opposing party for response, either prior to or after acceptance (Article
56 of the Constitutional Court Act).
The Constitutional Court normally deals with a constitutional complaint in a
closed session but it may also call a public hearing (Article 57 of the Constitutional Court Act). The
Constitutional Court may issue a temporary restraining in the proceedings,
either against an individual act or statute, or against some other regulation
or general act on the grounds of which the disputed individual act was adopted
(Article 58 of the Constitutional Court
Act).
The decision in merito of the Constitutional Court
may lead to:
- The complaint being denied as being unfounded
(Paragraph 1 of Article 59 of the Constitutional
Court Act);
- partially or in entirety annul or invalidate the
disputed (individual) act or return the case to the body having jurisdiction for a new decision (Paragraph 1 of
Article 59 of the Constitutional Court
Act);
- annul or invalidate (ex officio) unconstitutional regulations or general acts issued for
the exercise of public authority if the Constitutional Court finds that the
annulled individual act is based on such a regulation or general act
(Paragraph 2 of Article 161 of the Constitution; Paragraph 2 of
Article 59 of the Constitutional Court
Act);
- in case it annuls or invalidates an disputed
individual act the Constitutional Court may also decide on the disputed rights
or freedoms if this is necessary to remove the consequences that have already
been caused by the annulled or invalidated individual act, or if so required by
the nature of the constitutional right or freedom, and if it is possible to so
decide on the basis of data in the documentation (Paragraph 1 of Article
60 of the Constitutional Court Act);
such an order is executed by the body
having jurisdiction for implementation of the respective act which was
retroactively abrogated by the Constitutional Court and replaced by the Court's decision on the same; if there
is no such body having jurisdiction
according to currently valid regulations the Constitutional Court shall appoint
one (Paragraph 2 of Article 60 of the Constitutional
Court Act).
Accordingly, the particularities of the Slovenian
regulation are as follows:
- Exceptions from the precondition of legal remedies
having previously been exhausted, for filing a constitutional complaint
(Article 51 of the Constitutional Court
Act);
- Wide definition of constitutional rights as the
subject of protection by constitutional complaint in comparison with other
systems which specifically define the circle of the rights so protected;
- Judgment (of the regular Courts) as the potential
subject of impugnment by constitutional complaint, which is relatively rare ;
- Ex officio
proceedings inasmuch as Constitutional Court is not bound to the complaint in
the event of finding that an individual act annulled is based on an
unconstitutional regulation or general act - in such a case, the regulation or
general act may be annulled or invalidated (Paragraph 2 of Article 59 of
the Constitutional Court Act);
- Coexistence of constitutional and actio popularis, the latter restricted only by the standing
requirements for the appellant;
- No particular court fee in the proceedings: each party
pays its own costs in the proceedings before the Constitutional Court unless
otherwise determined by the Constitutional Court (Paragraph 1 of Article
34 of the Constitutional Court Act);
- Possibility of ultimate decision on constitutional
rights (Paragraph 1 of Article 60 of the Constitutional Court Act).
The core of judicial protection of human rights lies in
the constitutional complaint, since:
- Human rights are attributes of any democratic legal
system;
- Constitutional complaint is (only) one of the legal
remedies for protecting constitutional rights;
- Constitutional complaint is an important remedy for
the protection of human rights connected with the human rights themselves;
the Constitution guarantees the constitutional complaint, in the same way as
the rights it protects; at the same time, the constitutional complaint is
limited by statute to the benefit of the operational capacity of the
Constitutional Court;
- Its effectiveness is disputed, since successful constitutional
complaints are in a clear minority, although that should be no reason for their
restriction or abolition. The latter is also very often the result of the great
burden of this kind of case on Constitutional Courts;
However, despite the internal contradictory properties
of this institution, the possibility shall remain open of access by the
individual to justice or to judicial protection of his/her constitutional
rights. The very existence of the constitutional complaint ensures more effective
review of violations of constitutional rights on the part of government bodies.
3. The Human
Rights' Protection Viewed Through the Slovenian Constitutional Case-Law
The Constitution of 1963 explicitly authorized the
Constitutional Court for the decision-making on protection of the
self-government right as well as of other fundamental rights and freedoms
specified by the Federal as well as by the federal state Constitution, if these
rights were violated through an individual act of government, communal body or
by a work or other organisation and no other judicial protection was provided for by the statute
(Paragraph 3 of Article 228 of the Constitution of the SRS). Further
details were derived from the Constitutional
Court Act (Official Gazette of the SRS, No. 39/63 and 1/64). Examples of
constitutional case-law from that period reveal that Constitutional Courts
mostly used to reject such individuals' complaints due to the lack of power of
the Courts and they used to refer such
complainants to the regular Courts. The activity of the Constitutional Court in
the field of fundamental constitutional rights and freedoms was predominantly
based on the petitions lodged by the citizens. In the initial period of
activity of the Constitutional Court, since the Constitution of 1963, the
protection of human rights and freedoms by the Constitutional Court made no
intensive progress. Maybe this was due to an insufficiently specific
constitutional and legal basis, such that it would provide the Constitutional
Court with enough practical standards for its decision-making. The reason
perhaps lied in the whole system which was not in favour of Constitutional
Court protection of basic rights.
The Constitution of 1974, however, removed the
jurisdiction of the Constitutional Court over individual constitutional rights
and freedoms and attributed the protection of these rights to the regular
Courts. Nevertheless, in the second period of the Constitutional Court's
activity, from the Constitution of 1974 till the Constitution of 1991, the
number of decisions explicitly relating to the constitutionally protected human
rights and freedoms, scored a slight increase. In this respect the examples of
concretisation of the Principle of Equality before the Law, the freedom of
work, the right to social security and the right to legal remedies are of
special significance. Unfortunately, most of these decisions taken by the
Constitutional Court included few reasons. The reader may seems be prevented
from comprehending of all the background reasons for the decision-making.
It was also characteristic of Slovenian Constitutional
Case-Law prior to 1991 that, in comparison with Europe, it avoided the use of
legal principles a great deal more, even those explicitly included in the text
of the Constitution itself. In common with foreign practice, however, the
principle of equality greatly predominated among otherwise rarely used
principles. Decisions consistently remained within the framework of legalistic (formalistic) argument and no other
values references were ever allowed: the Constitutional Court respected the
principle of self-restraint and stuck to the presumption of the
constitutionality of the statute.
The new Constitution of the Republic of Slovenia of 1991
along with the catalogue of classical fundamental rights in combination with
the newly defined powers of the Constitutional Court set the ground for the
intensification of its role in this domain. It is considered that the
Constitutional Court now has sufficient space for such activity. The Slovenian
Constitution contains adequate definitions of rights which allow for
professionally correct understanding and reasoning. Almost all fundamental
rights have the nature of legal principles and are thus open to such an extent
that they require significant further concretisation and implementation .
The question as to whether Slovenian Constitutional
case-law from the period after the introduction of the 1991 Constitution, in
its relations to the fundamental rights and freedoms, has adapted to or is more
comparable with foreign constitutional case-law, can be answered in the sense
that the Slovenian Constitutional Case-Law comes close to the foreign case-law
in its approach to fundamental rights. The number of examples from this field
has increased. At this it is necessary to bear in mind that the
"frequency" of individual rights claims before Constitutional Courts
mainly depends on what kind of problem appellants place before Constitutional
Court. The Constitutional Court now appears as the guardian of
constitutionality in such a way that it decides not only on the conformity of
general legal acts with the constitutional provisions on fundamental
constitutional rights (in the sense of abstract and specific review of general
legal acts) but also on constitutional complaints against the violation of
human rights and fundamental freedoms by individual acts (Paragraph 1 of
Article 160 and Article 162 of the Constitution). Here it is, however,
necessary to add that in principle the new Constitution slightly limited the
still broad possibilities for individuals' impugnment of general acts. In
accordance to this principle any individual can still lodge the petition for
the beginning of the proceedings, but on condition of being able to prove
his/her standing. The implementation of this newly prescribed condition is one
of the issues which the Constitutional Court is consistently concerned with in
its actual practice.
