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Strasbourg,
6 December 2001
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Restricted
CDL (2001) 116 Or. Eng.
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE
COMMISSION)
DRAFT LAW ON THE
CONSTITUTIONAL COURT
OF THE
REPUBLIC OF AZERBAÏJAN
Draft interim opinion
on the basis of comments by:
Mr. Aivars Endzins
(member, Latvia)
Mr. James HAMILTON (member, Ireland)
Mr. Georg NOLTE (substitute member, Germany)
Mr. Peter Paczolay
(substitute member, Hungary)
I. Introduction
Within the framework of the programme of co-operation
of Azerbaijan with the Venice Commission (CDL (2001) 5), Mr. Khanlar Hajiev,
President of the Constitutional Court of Azerbaijan, by letter of 7 September
2001 requested an opinion of the Commission on the draft law on the Constitutional
Court (CDL (2001) 108). At its 48 Plenary Meeting on 18-19 October 2001, the
Venice Commission invited Messrs Endzins, Hamilton, Nolte and Paczolay to act
as rapporteurs on this draft. Their comments have become documentsCDL(2001)111, 122, 110 and 114 respectively. On the basis of these comments, a workshop
and meetings on the draft law were held in the Constitutional Court and the
offices of the Presidential Administration of Azerbaijan in Baku on 5-6
November. For the Venice Commission, Messrs. Endzins, Hamilton and Paczolay
participated at these meetings. The discussion focussed mainly on the
procedures for individual access to the Constitutional Court as envisaged in
Article 30 of the first draft and direct access for ordinary courts on all levels
which the first draft did not yet provide for. On the basis of these
discussions the Constitutional Court prepared a revised draft (CDL (2001) 108rev). The revised draft was the subject of further discussions between
Messrs. Hajiev, Mirzojev and Aliev (hereinafter "the delegation") and
a group of rapporteurs of the Venice Commission composed of Messrs. Bartole,
Endzins, Hamilton and Matscher which took place in Strasbourg on 29-30
November. The present interim opinion on the revised draft takes these discussions
into account. At the appropriate places agreement between the Azerbaijan
delegation and the rapporteurs will be mentioned. The delegation agreed to
present a further draft which will be the subject of a final opinion of the
Venice Commission.
The Commission wishes to point out that the revised
draft is substantially improved in comparison to the first draft and welcomes
that it takes into account comparative international experiences. It does,
however, still raise a few general and specific questions. The following
interim opinion limits itself 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.
Given the detailed nature of the draft and the multitude of possible policy
options this opinion has been limited to certain important and some less
important issues.
1.
Constitutional changes
This opinion does not address the issue whether it
would be advisable to not only to amend the Constitution (as proposed
with Article 6 of the Draft Constitutional Law on the Regulation of the
Implementation of Human Rights and Freedoms) but to change it 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 Venice Commission in its previous Opinion based on comments by Messrs.
Özbudun, Russell and Lesage (CDL-INF (1996) 10). The Commission is of the
opinion that both suggestions should be further pursued. The delegation pointed
out that at this stage no changes in the Constitution (entailing a referendum)
are being considered but that this might be possible at some point in the
future.
2.
Commitments entered upon accession to the Council of Europe
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; ".
2.1 Individual access
As regards access of individuals, this commitment has
been taken up in Article 6 of the Draft Constitutional Law on the Regulation of
the Implementation of Human Rights and Freedoms in the Azerbaijan Republic (CDL (2001) 88) and Article 31 of the present, revised draft by the introduction of
a constitutional complaint procedure which gives every person the right to
lodge a complaint with the Constitutional Court (after the exhaustion of
ordinary judicial remedies) alleging that his or her fundamental rights have
been violated through the implementation of a general, normative legal act. The
violation of human rights by an individual act which is not based on an
allegedly unconstitutional normative act cannot give rise to a constitutional
complaint. The ordinary courts are to deal with these cases.
Since the constitutional complaint procedure can be
initiated by every individual it is possible that the Court will have to deal
with a large number of such complaints. It might be advisable to introduce a
special screening procedure to filter out inadmissible or manifestly
ill-founded complaints. Given that only normative legal acts can be the subject
of an individual appeal, 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.
The general rules of procedure apply for the registration
and the acceptance of the complaint. Similarly do apply the rules of the
constitutional proceedings. This special procedure would require more specific
regulation especially as concerns the effects of the decision as to the
unconstitutionality of the normative act on the individual act which resulted
in the alleged violation of human rights (Article 6 of the Draft
Constitutional Law on Human Rights). Is the individual decision annulled or
only declared as being based on an unconstitutional general norm and sent back
for review to the authority which took the decision (in most cases the Supreme
Court)? The delegation showed a preference for the second option. This should
be spelled out both in this draft law and in the administrative, civil and
criminal procedure codes. This authority should be obliged to review the case
on the basis of the annulment of the normative act on which it had based its
decision.
Moreover, it seems necessary to regulate whether and if
so how the annulment of the normative act by the Constitutional Court would
effect other, past decisions with force of res iudicata based on this
act. The Constitutional Court might be given the possibility to decide on the
effects (annulment ex nunc, ex tunc) in each case. In the case of
annulment ex tunc the individual constitutional complaint results in a
decision that has erga omnes effect because the legal norm on which the
challenged judicial or administrative act was based is declared null and void.
Thus other acts based on the same norm would become invalid, too. Here, the
principles of individual remedy on the one hand and legal security on the other
should be balanced. At least sentences in criminals cases should be reopened by
the ordinary courts following the annulment of the penal norm on which they
were based. It seems necessary to regulate expressly all these matters in the
final draft. The delegation agreed to address this issue in the final draft
Obviously, the complainant should present in the
appeal the previous instances of his case. The clause „explanations and documents
required for clarification of the circumstances of the case“ might be too large
in this respect. Such evidence could be gathered by the Constitutional Court.
Also, the Constitutional Court should ascertain whether all other legal
remedies have been exhausted.
2.2 Access for courts at all levels
During the discussion of the ways of how to provide
access to the Constitutional Court for courts at all levels it became apparent
that several options are being considered:
(a)
a
system of preliminary requests by ordinary courts to the Constitutional Court
entailing a suspension of the proceedings before the ordinary court pending the
decision by the Constitutional Court followed by a final decision on the merits
of the case on the basis of the decision of the Constitutional Court (solution
suggested by the Commission);
(b)
a
system whereby the ordinary courts are obliged to take a decision on the merits
of the case in which they do not apply the general norm (law, decree) which
they deem unconstitutional, followed by an obligatory referral of the question
of the issue of unconstitutionality to the Constitutional Court (Article 30 of
the revised draft);
(c)
a
general right for judges to apply to the Constitutional Court for the
interpretation of the Constitution and laws in relation to human rights
(article 7 of Draft Constitutional Law on the Regulation of the Implementation
of Human Rights and Freedoms in the Azerbaijan Republic).
Solution (c) is modelled upon the possibility which
was open to judges in the Soviet Union to ask questions about the
interpretation of laws to the Supreme Courts. In the way formulated in Article
7 of the Draft Constitutional Law on the Regulation of the Implementation of
Human Rights and Freedoms in the Azerbaijan Republic, such questions would not
have to relate to a concrete case before the judge asking the question (judge a
quo). Even though this may seem obvious it should be spelled out that such
an interpretation has binding effect not only for the judge a quo but on all
state bodies. The problematic of this solution lies however in the fact that
the Constitutional Court would be able to provide an interpretation of the law
only. The Court would probably try to provide an interpretation which brings
the law in line with the Constitution and exclude possible interpretations that
are not in conformity with the Constitution.
There could be cases, however, when a law is in such stark contradiction
with the Constitution that the law could not be interpreted in conformity with
it. Then the Constitutional Court could only declare such an
unconstitutionality but it could not annul the law because it is providing only
an interpretation. According to the opinion of the delegation from Azerbaijan
then the law would formally remain in force but judges would not apply it due
to its established unconstitutionality. This however raises two problems: first
the system of constitutional control would be unbalanced as the effect of a
finding of unconstitutionality will depend on the type of application addressed
to the Constitutional Court , where there is an 'inquiry' (appeal) for the
verification of constitutionality under Article 130.III.1 of the Constitution
unconstitutional laws will lose their legal force following the decision of the
Constitutional Court whereas this would not be the case where the decision is
made on a mere request for interpretation. Secondly this may create a problem
for the authority of the Constitutional Court. In cases of a conclusion of
unconstitutionality in interpretation proceedings the Constitutional Court
would request Parliament to revise its law. Parliament is however not obliged
to do so and might chose not to take any action, which would undermine the role
of the Constitutional Court as the authority to effectively control the
constitutionality of laws. The reply offered by the delegation was that such a
law could be directly attacked by other state bodies or individuals (after
exhaustion of other remedies) and would finally lose its force. This double procedure
does however raise serious questions in relation to the principle of legal certainty.
Solution (b) is based on the assumption that all
courts in Azerbaijan are capable to control constitutionality of laws (diffuse
control system) and have the power not to apply a law they deem contrary to the
Constitution). The Commission is of the opinion that such a system cannot be
merely based on the principle of direct applicability of the Constitution
(Article 147) but should result from a clear constitutional provision (such as,
for example, Article 100 of the Greek Constitution: “Courts shall not apply
laws that contradict the Constitution”).
Moreover, solution (b) obviously can create problems
when the Constitutional Court in its decision comes the conclusion that the
general norm is not unconstitutional. Then the decision taken by the ordinary
court would have to be reviewed. The problem could be further complicated if in
the meantime the decision by the ordinary court was appealed against and the instance
of appeal would not come to the conclusion of unconstitutionality of the
general norm and apply the norm to the case but now the Constitutional Court
would find such an unconstitutionality and confirm the finding of
unconstitutionality of the first instance court. the revised draft deals with
this problem by providing for the suspension of the decision by the ordinary
court pending the decision of the Constitutional Court. Both solutions (a) and
(b) require specific regulation both in the law on the Constitutional Court but
probably also in the codes of criminal and civil procedure. Model (a) works
satisfactorily in many countries, model (b) would establish a new system which
might prove difficult in practice.
The
main argument advanced in support for the model (b) is that according to the
Constitution of Azerbaijan all State organs including ordinary courts are to
apply the Constitution directly and that ordinary courts should not be released
from this obligation. It could be argued, however, that by referring cases to
the Constitutional Court they are precisely doing that, i.e. directly applying
the Constitution because they are obliged to take a decision that they have
serious doubts about the constitutionality of the norm. Only direct application
of the Constitution can result in a serious doubt about the
unconstitutionality.
Another
argument in favour of solution (a) is that in many countries practice has shown
that ordinary courts which have to deal with an array of substantive and
procedural provisions in their daily work are usually reluctant to assume the
unconstitutionality of a law. Constitutional Courts which have been established
precisely for that purpose are in a better position to accomplish this task.
Forcing ordinary courts to take a definite position on the unconstitutionality
rather than to let suffice a serious doubt might set the threshold too high and
could result in a very low number of findings of unconstitutionality.
2.3 Access for other public bodies
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 explicitly been dealt with in
the present draft. Such conditions appear already to be provided for in Article
130.III of the Constitution of Azerbaijan. They could, nevertheless, be
referred to in the present draft law for the sake of providing a complete
picture of all persons and bodies with access to the Constitutional Court.
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 (the
Constitutional Court should be able to suspend individual acts by other state
bodies which might cause irreparable damage – especially in the case of an
individual complaint – like the extradition of a person or the destruction of a
house built without a permit until the Constitutional Court takes the final
decision on the validity of the normative act on which the individual act is
based upon. The delegation agreed to add such provisions to the final draft);
c)
Rules on Costs;
d)
Rules on how judgments are executed.
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.I.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.V and 130.VI of the Constitution)
Finally,
there should be a clarification concerning the point whether a general (civil
or criminal) procedure act is applicable in a supplementary way in the
proceedings before the Constitutional Court.
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 33, 34, 38, 42, 43, 44, 52,
56, 58, 64, 66, 67, 68, 89, 101. 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 legislation on minor matters. The
previous Opinion of the Venice Commission by Messrs. Özbudun, Russell and
Lesage (CDL-INF (1996) 10) has also already pointed out that the draft law
contained too many details.
This is by far more than a technical question, rather it is closely
related to the independence of the court. It is very dangerous, not only from a
theoretical but also from a practical point of view, to authorize the
legislature to decide on the peculiar procedural rules. The legislature has the
right in a democracy to determine questions such the competences of the Constitutional
Court, the composition of the courts, the recruitment of the judges, even the
main procedural rules. But the detailed regulation of the procedure should
pertain to the court itself. The practical difficulty of regulating the whole
procedure by law is that even slight amendments to the procedural rules would
have to be adopted by the legislature where any amendment could be subject of
political debates and controversies. Therefore it would be more advisable to
differentiate among the different levels of the regulation, and to authorize
the Constitutional Court to decide on all those procedural rules that are not
of an importance to be guaranteed by the legislature. The delegation agreed to
address this issue in the final draft.
I.
Comments
on Specific Draft Articles
Article 4:
The Constitutional Court shall protect the
rights and freedoms not only of citizens, but also of any person
(see Article 30). The delegation agreed to resolve this problem in the final
draft.
Article 5: The
drafter might take into consideration that the constitutional court process
shall also be based on the principle of ascertaining the truth as it has been
stated in Article 23.2 of the draft.
Besides it
seems difficult to speak about ”parties” in the classical meaning of the term,
especially about ”the petitioner” and ”the respondent” (see also Article 46).
Not denying that equal rights of the participants in the case have to be
ensured, the Court should have the possibility to freely assess the value of
the contribution of a participant to the constitutional issue which is at
stake.
Article
11: The reappointment of the judges
might threaten their independence because they could be under pressure by those
political forces that are involved in their reappointment. In accordance with
the report of the Venice Commission on the Composition of Constitutional Courts
(Science and Technique of Democracy, no. 20, p. 19) consideration could be
given to the possibility of life or long term appointments for the judges
instead of reappointments. At least appointments for life time should be
accompanied by an age limit. Transitory provisions could, of course, provide
for the possibility of reappointment of the current judges.
Article 14:
The reference in Article 14 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 Commission by Messrs. Özbudun, Russell and
Lesage (CDL-INF (1996) 10) has already pointed out that it is preferable to
leave the choice of the Chairman and the Deputy-Chairman to the judges
themselves. Given that Article 109.32 of the Constitution is only a general
default clause and does not oblige the legislator to attribute this task to the
President, the election of the Chairman and the Deputy-Chairman by the judges
would indeed appear to be the solution which would contribute the best to the
independence of the Constitutional Court.
The
reference to Article 95.10.10 should be replaced with a reference to Article
95.10.
Article 15: There
is a cross-reference to article 9.2 of the present law. The draft does not contain
such an article.
Article
16: 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,
Article 16 of the draft speaks 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 17 and 33 could 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. The delegation agreed to address this issue in the final
draft.
Article 20:
Following explanations by the delegation, it seems that Article 128.IV and V of
the Constitution deal with the suspension of the powers of judges including
judges of the Constitutional Court even though the English text of the
Constitution speaks about ways to "stop" the authority of a judge and
his "dismissal" when a judge has committed a crime. If this understanding
is correct, the decision about such a suspension is to be taken by the Milli Majlis
with a qualified majority of 83 votes based upon a proposal of the President
and an opinion by the Supreme Court. For the sake of clarity the present draft
should make reference to this Article of the Constitution and indicate that
this procedure also applies to the judges of the Constitutional Court.
The
previous Opinion of the Venice CommissionCDL-INF(1996)10 by Messrs. Özbudun,
Russell and Lesage has also made the point 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
of the draft deals on the other hand deals with the final termination of the
powers of the judge of the Court. Therefore, the word "suspend" in
the English version of the draft should be replaced with "terminate".
This
Article attributes the competence to terminate the powers of a judge to the
President of the Republic according to Article 109.32. It seems problematic
to have the mere suspension of the powers of a judge being decided by
Parliament with a qualified majority upon a proposal by the President whereas
the final termination of her or his powers depends on the President without the
involvement of the Milli Mejlis.
Article 22:
The rules on publicity go very far. Hearings should be held in cases declared
admissible and when necessary. Obliging the Court to hold oral proceedings
in every case would most probably result in an overburdening of the Court
especially when there is a danger of a high number of individual complaints.
Publicity can also be achieved by publishing decisions in the Court's digest,
the official gazette and the media.
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 Commision by Messrs. Özbudun, Russell
and Lesage (CDL-INF (1996) 10, sub. 6).
Article
26: This regulation goes probably too
far. See also If there is a possibility to get acquainted with the materials
they should not be announced.
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” (item 28.2)? 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:
Only persons capable to contribute to the settling of the constitutional issue
should have the right to be heard at the Constitutional Court which ought not
to be burdened with issues of facts.
It should
not be necessary to enclose officially published documents (like the text of
laws) to the petition. References would be sufficient.
Article 32:
The previous version of the draft contained a possibility to appeal to the
Court against the non-admission of a complaint by the Secretariat. Even though
the revised draft reduced the role of the Secretariat and obliges it to
instruct the complainant this provision should be included again because it may
be difficult to distinguish between issues of pure form and substance. The
delegation agreed to redraft this Article in the final version.
Article 37:
The Court should have the possibility to continue the proceedings even after
the withdrawal of an appeal if it is of the opinion that the case raises an
issue of general interest. The
delegation agreed to redraft this Article in the final version.
Article 39:
This Article establishes two chambers within the Constitutional Court: one composed
of four, the other composed of five judges. According to Articles 40 and 41 the
division of competences between the Plenary and the chambers depends on the
normative act complained about. Consequently also individual complaints would
be dealt with either by the Plenary or a chamber according to the subject of
review. This could result in a danger of overburdening the Plenary with
individual complaints against the normative acts stipulated in Article 40 of
the draft. If such a division of the workload is to be maintained the issue of
special screening procedures for manifestly unfounded complaints should be
considered (see also point 2.1 above).
On the
other hand, explicit provisions for a distribution of tasks between the two
chambers are missing. This could be covered by the powers of the Chairman of
the Court to "distribute tasks among Judges of the Court" (Article
17). The Commission suggests, however, an explicit provision on this issue
which relates to objective criteria. In addition, a system of regular rotation
of the composition of the chambers might help avoiding the development of different
attitudes of the chambers in their decisions. The delegation agreed to address
this issue in the final draft.
Article
62: For the sake of proceedings within
reasonable time, copies of submitted documents should rather be sent to the other
participants of a case (parties in ordinary proceedings and interested subjects
in special proceedings according to Articles 45-47) to enable them to reply in
writing.
Chapter VIII:
It is unusual that the Court should have the duty to consider a case within certain
specified time-limits (comp. Articles 70, 72, 74, 76, 78). 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 81).
Article 84: The Constitution (Article 86) enables (but does not compel) the
Constitutional Court to consider all aspects of the disputes in election
matters, in particular regarding actual circumstances of holding elections
and calculations of votes. 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 founded, this would not have changed the result. In the case the
Constitutional Court could not deal with all aspects of electoral disputes, the
division of powers between the election commissions, the ordinary courts and
the Constitutional Court in this field should be made clear. The present
situation is actually unsatisfactory and leads to negative conflicts of
jurisdiction (it could also lead to positive conflicts of jurisdiction). If the
Constitutional Court does not deal with all aspects, it should take a decision
only after all disputes have been settled by election commissions and ordinary
courts.
Articles
88 and 96: The two articles repeat
unnecessarily the same provision on the inadmissibility of the official
interpretation of the resolutions of the Constitutional Court.
Article 89:
Perhaps the rules of procedure should regulate the order of voting (age or
seniority).
Article 92
: Reaching the judgment may take some
time. It would not be appropriate that the participants in the case and the
audience should sit in the Court hall to wait for the judgment to be announced.
The Court, when leaving to reach a judgment, could inform about the time when
the judgment is to be announced. This could be provided for in the rules of
procedure of the Constitutional Court.
Article 93:
It is an elementary rule that criminal provisions must be laid down and
specified in a law (nullum crimen sine
lege). While it is possible to authorize the executive to specify certain
generally formulated criminal provisions, it is not possible to give such an
authorization without any substantive guidelines, as it is the case in the
present draft. Both resolutions and rulings could be covered by a detailed
specific provision.
Article 94:
(1) should read: „shall enter into force after their publication from
the date specified in the resolutions themselves“.
Article 96:
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.
