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Strasbourg,
12 October 2001
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Restricted
CDL (2001) 110 English only
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EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
REPUBLIC OF AZERBAÏJAN
DRAFT LAW
ON THE CONSTITUTIONAL COURT
Comments by:
Mr. Georg NOLTE
(Substitute Member, Germany)
I. General Comments
The draft is a good basis for discussion. It does,
however, raise a number of general and specific questions. The following
comments limit themselves to the question of whether the provisions of the
draft law are in conformity with the Constitution of Azerbaijan, and whether
their adoption is advisable in the light of common European standards and
practices.
1.
Constitutional Amendments
The comments do not address the issue whether it would
be advisable to change the Constitution of Azerbaijan either in order to
introduce new procedures for the Constitutional Court which would require a
constitutional amendment (which might be the case for a right of a
parliamentary minority to initiate a review of norms) or to abolish an existing
procedure (for example the initiative by the Constitutional Court in the
procedure for the removal of the President of Azerbaijan according to Article
107 of the Constitution of Azerbaijan). Such changes have been recommended by
the previous Opinion of the Venice CommissionCDL-INF(1996)010e by Messrs.
Özbudun, Russell and Lesage. These suggestions should be pursued further, in
particular the right of a parliamentary minority to initiate a review of norms.
2.
Commitments to the
Parliamentary Assembly
It should also be borne in mind that Opinion 222
(2000) of the Parliamentary Assembly (http://stars.coe.int/ta/ta00/eopi222.htm)
states: "15. The Parliamentary Assembly notes that Azerbaijan shares fully
its understanding and interpretation of the commitments entered into, as spelt
out in paragraph 14 and intends: ... ii. to re-examine the conditions of access
to the Constitutional Court and grant access also to the Government, the
Prosecutor General, courts at all levels and - in specific cases - to
individuals, at the latest within two years of its accession; ". This
commitment has been taken up in Article 30 of the present draft by the introduction
of a constitutional complaint procedure which gives every person the right to
lodge a complaint at the Constitutional Court alleging that his or her
fundamental rights have been violated (after exhaustion of legal remedies). It
appears that this procedure absorbs the demand by the Parliamentary Assembly to
reexamine the „access of ... courts of all levels“ to the Constitutional Court
since it the interest of the individual which should be safeguarded through the
possibility of access by courts and this interest of the individual is
safeguarded by a comprehensive constitutional complaint procedure. For more
specific comments on the proposed Article 30 see below.
The other commitment which the Parliamentary Assembly
has referred to in its above-mentioned decision, the conditions of access for
the Government and the Public Prosecutor, has not explictly been dealt with in
the present draft. Such conditions, however, appear to be provided for in
Article 130 (3) of the Constitution of Azerbaijan.
3.
Issues not covered
Although the draft law is very long and detailed,
there are a number of important issues which are not covered. Not covered are,
in particular:
a)
The issue of the exclusion of a
judge in a specific case for reasons of conflict of interests (personal
relationship with a party to the procedure, prior involvement in the matter, monetary
conflict of interest)
b)
Rules on interim measures
c)
Rules on Costs
d)
Rules on how judgments are executed
e)
Rules on the qualifications of those
who are permitted to speak before the Court
In addition, there are some issues which are regulated
in the Constitution only, but which should also be integrated and specified in
the draft law. Such issues are, for example:
a)
The nomination and election
procedure for becoming a judge (see Articles 95 (10) and 109 (9) of the
Constitution)
b)
The determination which judgments
have effect only inter partes and
which also have effect erga omnes (see
Article 130 (5) and (6) of the Constitution)
Finally,
there should be a clarification concerning the point whether a general (civil
or criminal) Procedure Act is applicable in case the law on the constitutional.
4.
Issues preferably to be
covered in the Internal Regulations of the Constitutional Court
On the other hand, a number of provisions which are
included in the draft law concern details which should better be regulated in
the Internal Regulations of the Court, as it is the case in most other
countries. This is true, in particular, of Articles 32, 33, 41, 42, 43, 44, 51,
55, 57, 63, 65, 66, 67, 90, 100. It is certainly important that the procedure
of the court be regulated as clearly and as precisely as possible. It is also
important, however, that the Court possesses a certain autonomy with regard to
its own procedure. It is also important for the Constitutional Court to have
the possibility to modify details in the light of practical experience without
Parliament (Milli Meijlis) having to pass a legislation on minor matters. The
previous Opinion of the Venice CommissionCDL-INF(1996)010e by Messrs. Özbudun,
Russell and Lesage has also already pointed out that the draft law contained
too many details.
5.
Position of the Chairman of
the Constitutional Court
Finally, it appears that the position of the Chairman
of the Constitutional Court is too strong. In principle, the judges in one
judicial body are equal and the Chairman is only the first among equals (primus inter pares). This does not
exclude certain prerogatives for the Chairman which are necessary for
coordination of the work and representation. However, Articles 15 (6) and 17,
for example, speak of another judge having „to execute instructions“ of the
Chairman. If the translation is correct, this does not appear to be an
appropriate terminology. It is suggested that some of the functions of the
Chairman which are provided in Articles 16 and 32 should be carried out by a
small committee of perhaps three senior judges in order to reconcile the
principles of effective administration of the court and the equality of judges.
I.
Comments
on Specific Draft Articles
Article 2:
Only those interstate agreements which have been duly ratified by Parliament
(Milli Meijlis) should be capable of being a legal basis for the activity of
the Constitutional Court.
Article 5: Perhaps
it should be made clear that the principle of the supremacy of the Constitution
overrides all other principles which are mentioned in this article. Otherwise
this provision might be invoked as a justification of circumventing the
Constitution by referring, for example, to (abstract) justice.
Article 6: The
Constitutional Court does, in certain ways, depend on the Parliament (Milli
Meijlis), in particular with respect to financial appropriations. Perhaps it
should be made clear that the independence from Parliament is different than
the independence from all other bodies.
Article 10:
Perhaps an age limit (75) should be introduced
Article 12:
It should be made clear that the immunity of the judge extends to his or her private
apartment (this is maybe a translation problem).
Article 13:
The reference in Article 13 of the draft to Article 109 (32) of the
Constitution effectively means that the President of the Azerbaijan Republic
decides by executive order who of the judges shall be the Chairman and the
Deputy Chairman of the Constitutional Court. This appears to be problematical
for two reasons: First, since the President only nominates the judges but the
Parliament (Milli Meijlis) appoints them (Article 95 (10) of the Constitution)
it seems that the Constitution gives the Parliament more say about the
status of the judges at the Constitutional Court. Second, if the positions of
Chairman and the Deputy Chairman of the Constitutional Court could be
determined by executive order the danger exists that the President also asserts
the right to remove a judge from his position as Chairman or Deputy Chairman
from this position whenever the Chairman does not perform his or her function
to the pleasure of the President. It must at least be made clear that the
President has no such power of removal. The previous Opinion by the Venice
CommissionCDL-INF(1996)010e by Messrs. Özbudun, Russell and Lesage has already
pointed out that is is preferable to leave the choice of the Chairman and the
Deputy-Chairman to the judges themselves. This would indeed appear to be the
best solution which would contribute to the independence of the Constitutional
Court.
Article 18:
It should only be possible to suspend the powers of a judge if the arrest has
been lawful. Otherwise the provision could be interpreted that the Plenum of
the Constitutional Court is obliged to suspend the powers of a judge only on
the basis that the judge has been arrested. In addition, not every provisional
arrest for a minor (e.g. traffic) offense should be a possible basis for the
suspension of the powers of a judge. Article 18 1) should therefore read:
„lawful arrest of a Judge on the suspicion of having committed a serious
offense...“. The previous Opinion of the Venice CommissionCDL-INF(1996)010e by
Messrs. Özbudun, Russell and Lesage has also made a similar point. This Opinion
required that an arrest of a judge „should only occur in cases of serious in
flagrate delicto“. Moreover, the Opinion says, „in case of the arrest of a
judge of the Constitutional Court, it is necessary to promptly inform not only
the Prosecutor-General of the Republic of Azerbaijan, but also the President of
the Constitutional court and, if necessary, the President of the Supreme
Court“. This statement is still valid today.
Article 20:
It should be made clear that a pre-suspension of the powers of a judge must be
decided by the Plenum of the Constitutional Court.
Article 22:
The rules on publicity go very far. Perhaps the legislator should also think of
the need to protect the court from the public pressure which is connected with
live TV coverage. On to this point see also the previous Opinion of the Venice
CommisionCDL-INF(1996)010e by Messrs. Özbudun, Russell and Lesage, sub. 6.
Article 28:
The general formal requirements concerning petitions and complaints are too detailed
and will probably be a source of technical mistakes. What is meant by „the
other data of the complainant”? It does not appear appropriate to ask the
petitioner to provide the Court with the applicable legal provisions and their
sources and details. The court knows the law (iura novit curia). The prohibition to demand an interpretation of
several provisions of the constitution at once is unclear: Does it mean that
those questions have to be put separately, or does it mean that the same
complainant may only ask one question at a time?
Article 29:
It is unclear what are the substantive conditions under which a person has the
right to speak at the Constitutional Court.
Article 30:
This article introduces the procedure of constitutional complaint by any person
as one of the functions of the Constitutional Court. Questions could be raised
whether the Constitution actually permits the introduction of such a procedure
by way of simple legislation. After all, Article 130 (3) of the Constitution
lists a number of specific procedures (among which the constitutional complaint
procedure cannot be found) and Article 130 (4) provides that the Constitutional
court „shall perform other duties stipultated in the present Constitution“.
Since the Constitution does not explicitly provide for the Constitutional Court
to perform a constitutional complaint procedure some might argue that it is
necessary to change the Constitution before this procedure can be introduced by
simple legislation. Such a restrictive interpretation of the Constitution does
not, however, seem persuasive. Article 125 (2) of the Constitution provides
that „Judicial Power shall be executed by the Constitutional Court“ and Article
125 (3) of the Constitution provides that „judicial power shall be exercised
via constitutional, civil, administrative and criminal legal proceedings and in
other forms specified by law“. Taken together, these two provisions suggest
that the legislator is free to distribute judicial functions among the
different Courts, as long as the Courts thereby exercise their basic function.
Thus, as long as the Constitutional Court still performs constitutional
functions the legislator seems to be free to provide for a constitutional
complaint procedure by the Constitutional Court. It is true that the
constitutional complaint procedure is different from all other procedures of
the Constitutional Court since it can be initiated by every individual and not
only by a limited number of high state organs. Still, this difference does not
exclude the possibility to introduce this procedure by way of legislation,
since it can be considered as a special form of the general judicial function
and the basic function of the Constitutional Court.
Since the
constitutional complaint procedure can be initiated by every individual it is
possible, and even likely, that the Court will have to deal with a large number
of such complaints. The experience of Constitutional Courts of other countries
which know the constitutional complaint procedure for violations of fundamental
rights (e.g. Germany and Spain) shows that it is advisable to introduce a
special screening procedure to filter out inadmissible or manifestly
ill-founded complaints and even to find a special expedited procedure to deal
with obviously well-founded complaints. However, it may perhaps be advisable to
wait with the introduction of such special screening procedures until a certain
practical experience has been acquired with the actual significance of this
constitutional complaint procedure in Azerbaijan.
It is sufficient that the constitutional complaint
must be submitted within three months after the decision of the court of last
instance. In addition, it is unclear what is meant by „explanations and
documents required for clarification of the circumstances of the case“. Such evidence
should be gathered by the Constitutional Court. Also, the Constitutional Court
can and should normally determine itself whether all other legal remedies have
been exhausted.
Article 31:
The screening procedure by the Secretariat and the appeal against its decisions
do not appear to be satisfactory. The Secretariat should not be entitled to
check whether all „requirements of the present law“ are complied with but only
whether the formal requirements have been complied with. It is perhaps
advisable that the Secretariat be given the duty to advise the complainant on
how to correct his or her complaint. This would reduce the work of the Chairman
and the other judges when reviewing the complaints against the decision by the
Secretariat. The principle should be that complaints are not rejected
immediately because of formal mistakes.
Article 35:
The difference between nos. 1 and 2 is not clear.
Article 36:
It is perhaps wise to leave the question under which circumstances a petition
can be revoked open and subject to the jurisprudence of the Court.
Article 38:
According to Article 130 (1) of the Constitution the Constitutional Court shall
consist of 9 judges. Article 38 (1) and (4) of the draft provide that there
shall be a Plenum and two Chambers, each Chamber being composed of 4 judges.
This raises two questions: May a particular judge only be a member of one
Chamber or of both? And is it the intention of the drafters that there is
always at least one judge of the Constitutional Court who not a member of a
Chamber? If so, this would mean that there are two classes of judges, a result
which would contradict the principle of equality of judges.
Article 47:
it should read „and bodies and individuals whose interests are affected
by such petitions.
Article 48:
This is a very liberal regulation of the status of „interested subjects“. They
seem to have a procedural status which is largely similar to that of the
parties to the dispute themselves. This raises practical and theoretical
difficulties.
Chapter VIII:
It is unusual that the Court should have the duty to consider a case within certain
specified time-limits (comp. Articles 69, 71, 73, 75, 77). Experience in other
countries shows that the workload cannot always be addressed chronologically
and in a timely fashion. The Court may have so many cases to deal with at the
same time that it is impossible to keep within the time limits. Perhaps it
would be advisable to include a clause such as „shall, if possible, within 15
days consider ...“. It is, however, possible to demand immediate action upon
certain particularly important and urgent petitions, such as the verification
of information concerning the complete inability of the President of the
Azerbaijan Republic (Article 80).
Article 83:
Why should the Constitutional Court not be enabled to consider the disputes regarding
actual circumstances of holding elections and calculations of votes? According
to Article 88 of the Constitution this would seem to be its most important
task. Of course it can call the help of others to gather the evidence and it
can refuse to gather evidence if, assuming the complaint would be true, it
would not have changed the result.
Article 86:
The terminology and the translation is a bit confusing. It is assumed that
„resolution“ means „decision (or judgment) on the merits“, while rulings means
„decisions on admissibility and other decisions“
Article 87:
The „resolution“ is not the written document itself but the decision which has
been duly promulgated and which is embodied in that document. The rule that
resolutions shall be adopted by a majority of no less than 5 judges is
sometimes unnecessarily repeated in other provisions.
Article 88:
Perhaps the order of voting should be regulated completely (age or seniority).
Article 92:
It is highly problematical that non-compliance with a decision of the Constitutional
Court should lead to criminal responsibility. It is an elementary rule that
criminal provisions must be laid down and specified in a law (nullum crimen sine lege). It is
certainly possible to authorize the executive to specify certain generally
formulated criminal provisions. It is not possible, however, to give such an
authorization without any substantive guidelines, as it is the case in the
present draft. The problem of execution of judgments must be solved differently.
Article 93:
(1) should read: „shall enter into force after their publication from
the date specified in the resolutions themselves“.
Article 95:
This present formulation can give rise to misunderstandings. It is suggested to
read: „No person or body is competent to provide a binding interpretation of
the resolutions of the Constitutional Court.
II.
Conclusion
The present draft still raises a number of technical
problems. Given the detailed nature of the draft and the multitude of possible
policy options the preceding comments have been limited to certain important
and some less important issues. This opinion does not claim to be a comprehensive
evaluation of the draft law. It is suggested that the present draft is being
reworked with the participation of experienced practitioners from the well-established
Constitutional Courts.
