7. As regards access by individuals, this
commitment has been taken up in Article 5 (previously Article 6) of the revised
Draft Constitutional Law on the Regulation of the Implementation of Human
Rights and Freedoms in the Azerbaijan Republic (CDL (2002) 47) and Article 33
of the final draft by the introduction of a constitutional complaint procedure.
Following the exhaustion of ordinary judicial remedies, this procedure gives
every person the right to lodge a complaint with the Constitutional Court
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 such cases. The memorandum on the revised Draft
Constitutional Law on the Regulation of the Implementation of Human Rights and
Freedoms suggested to make this point more evident in Article 5 (CDL (2002) 48).
8. Since the constitutional complaint procedure
can be initiated by individuals, it is possible that the Court will have to
deal with a large number of such complaints. According to Article 37 of the
draft, which applies to all types of procedures, the Court can refuse to accept
manifestly ill-founded cases. This provision might serve as a filter in order
to avoid an excessive case-load.
9. Article 33 settles three issues which were
raised in the interim opinion:
- The Constitutional Court can accept
complaints even without the exhaustion of other remedies if these remedies
cannot prevent irreparable damage to the complainant;
- the Constitutional Court can take
interim measures to safeguard the position of an applicant and
- the ordinary courts are held to
reopen the case which had been decided on the basis of an unconstitutional
normative act in accordance with provisions of the Criminal and Civil
Procedure Codes (which need to complement the present Law).
10. The constitutional complaint 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)? Article 33 seems to imply 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 abrogation of the normative act on which it had based its
decision. The corresponding part of Article 33 could therefore read "…
proceedings on the case in the court that adopted the final decision shall
resume in accordance with provisions of the Criminal Procedure and Civil
Procedure Codes on the basis of the abrogation of the normative act by the
Constitutional Court."
11. Moreover, it seems necessary to regulate
whether and if so how the annulment of the normative act by the Constitutional
Court would affect other, past individual acts with force of res iudicata which are based on this
normative act. The Constitutional Court might be given the possibility to decide
on the effects (abrogation ex nunc, annulment
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.
12. At least sentences in criminals cases should
be reopened by the ordinary courts following the ex nunc abrogation of the penal norm on which they were based. Upon
request by prisoners, or better ex
officio, the ordinary courts of last instance should be obliged to reopen
other criminals cases following the annulment of the penal norm on which those
sentences were based. It is inconceivable that a person remains in prison on
the basis of a sentence which was based on an unconstitutional norm and thus another
exception to the res iudicata rule is
necessary. This issue should be addressed in the amendment to the Criminal
Procedure Code.
2.2 Access for courts at all levels
13. The issue of providing access to the
Constitutional Court for courts at all levels (as required by opinion 222
(2000) of the Parliamentary Assembly) has been addressed both in Article 32 of
the Draft Law on the Constitutional Court and Article 6 of the Draft
Constitutional Law on the Regulation of the Implementation of Human Rights and
Freedoms. The latter has been the subject of a separate opinion of the Venice
Commission (CDL-INF (2001) 27) which concluded that "this Article only
sets out the principle of referral of issues by ordinary courts to the Constitutional
Court. It leaves open several questions that should be regulated in a law,
possibly the law on Constitutional Court: Can the Constitutional Court refuse
to accept a case submitted to it by the ordinary court? Is the Constitutional
Court competent to engage in 'concrete' judicial review, in which case it would
act as the last judicial instance? Who will be the parties before the
Constitutional Court? What will be the effects of the Court’s judgments? The
law on the Constitutional Court should address these issues and clearly
establish the procedure to the followed by the ordinary courts, the scope of
the competencies of the Constitutional Court, and the effects of its
judgments." Chapter 2.2 of the interim opinion (CDL-INF (2001) 28) already
dealt with the different concepts at stake.
14. The current wording of Article 6 DCLHR
confines this procedure to questions concerning the implementation of human
rights and freedoms. The procedure
enables the judge to request an interpretation of the Constitution and the laws
as regards such a question. The draft does not require that the request should
relate to a specific case, but neither does it preclude this possibility.
15. The Article 32 DLCC procedure is not
confined to questions involving human rights but refers to any question of
whether a normative legal act conforms to a normative legal act of higher
force. The procedure can be invoked only where the referring court concludes
that this is the case. On the merits, the only issue for the Constitutional
Court is the abstract question whether the normative legal act did not conform
to the legal norm of higher force.
16. The relationship between the two draft
articles depends on the question whether they provide that the pertinent
decisions of the Constitutional Court have binding effect. Such a construction of Article 6 DCLHR should
be expressly developed by the Constitutional Court by taking into account the
purpose of the specific appeal procedure for 'interpretations'. The purpose of
this procedure is clearly to produce legal security and uniformity for the
ordinary courts and the legal system as a whole.
17. While the two procedures under Article 32 DLCC
and Article 6 DCLHR differ both in form and in scope, it is possible to
envisage questions which could be asked under either or both procedures as well
as questions which can only be asked under one or the other. It is possible that the two procedures could
be invoked in the same case, either at the same time or in succession. Furthermore, the fact that the two
procedures are different does not mean that they are incompatible.
18. A question concerning the interpretation of
a human rights provision contained in the Constitution or an international
instrument as well as the interpretation of a law of lesser force and the
compatibility of the two legal norms seem to have the potential to be raised
under either procedure.
19. A question not relating to an actual case
could be raised only under Article 6 DCLHR whereas a question relating to the
compatibility of norms in an area other than human rights could be raised only
under Article 32 DLCC.
20. Given that Article 32 DLCC is in some
respects wider in its scope than Article 6 DCLHR, Article 6 DCLHR does not seem
capable of being regarded as providing a constitutional basis for all possible
applications to the Constitutional Court under Article 32 DLCC. The provisions of Article 130 of the
Constitution do not appear to provide a basis for applications by a court other
than the Supreme Court. However, the
question of whether there is a proper constitutional basis for Article 32 DLCC
in circumstances other than those covered by Article 6 DCLHR or Article 130 of
the Constitution seems to be a matter for the Constitutional Court to
determine.
21. In order to avoid this possible problem it
seems advisable to adapt Article 6 DCLHR to change the scope of Article 32 DLCC
to cover "questions relating to the
implementation of the Constitution" as has been suggested in the
memorandum on the DCLHR (CDL (2002) 48). However, even without such an
amendment to Article 6 DCHLR, the Venice Commission is of the opinion that the
Constitutional Court will be able to authoritatively decide that requests by
ordinary courts according to Articles 6 DCHLR and Article 32 DLCC can result in
the abrogation of the normative act in question.
2.3 Access
for other public bodies
22. 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, appear already to be
provided for in Article 130.III of the Constitution of Azerbaijan. Article 28
of the draft now gives a complete picture of all persons and bodies with access
to the Constitutional Court.
III. Comments
on Specific Draft Articles
Article 4: The Constitutional Court shall protect
the rights and freedoms not only of 'individuals', but of any person including
legal persons. Legal persons should also benefit from the protection of rights
and freedoms as appropriate. According to the explanations provided, this seems
to be a mere problem of translation.
Article 11: Both options for the terms of office of
the judges (life terms or single 15 year terms) are to be welcomed because
reappointments of the judges might threaten their independence as the judges
could come under pressure by those political forces that are involved in their
reappointment. At least appointments for life time (option 1) should be
accompanied by an age limit. A transitory provision should clarify the status
of current judges. Such a provision could provide for the possibility of
reappointment of the current judges (for life time or prolonging their current
mandate up to a 15 year term). If the second option were chosen, a transitory
provision should avoid that all members change at the same time when their 15
years term ends.
Article 13: 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. The word 'dismissal' in Article 13, therefore, relates to
the 'suspension' of the powers of the judge. This seems to be a problem of
translation both in the Constitution and the draft Law.
Article 14: The reference in Option 1 of Article 14
of the draft to Article 109.32 of the Constitution means that the President of
the Azerbaijan Republic alone would decide by executive order who of the judges
shall be the Chairman and the Deputy Chairman of the Constitutional Court. This
appears to be problematical, 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.
Already the 1996
Opinion by the Venice Commission (CDL-INF (1996) 10) had pointed out that the
choice of the Chairman and the Deputy-Chairman should be left to the judges
themselves. Therefore, in comparison to Option 1, Option 2 is preferable since
it better ensures the independence of the judges.
Article 17: The Chairman of the Constitutional Court
enjoys a strong position. 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 the co-ordination of the work and
representation. It is suggested to include provisions to the rules of procedure
that the Chairman is assisted in some of his or her tasks which are provided in
Article 17 (in particular: to arrange the work of the Constitutional Court, to
distribute the cases among Judges and Chambers, and to handle the funds
allocated from the state budget) 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.
Article 21: As opposed to Article 13, Article 21 of
the draft deals with the final termination of the powers of the judge of the
Court. The requirement of a proposal by the Constitutional Court itself seems
sufficient to deal with the concern, expressed in the interim opinion in relation
to the then Article 20, that the role of the executive would be too strong in
the termination of the powers of a judge.
Article 24: Article 24 enables the Court to decide
that a case can be dealt with via a written procedure. This seems to depend,
however, also on a 'rejection' of the oral hearings by the parties, i.e. the
rule are oral hearings and only if all parties and the court agree that no
hearing is necessary a written procedure can be followed. However, hearings
should only be held in cases declared admissible and when necessary. The Court
should not depend on the parties in its decision for a written procedure except
in cases relating to civil and criminal matters in the sense of Article 6
ECHR. The corresponding sub-paragraph
could read: "If the documents contained in a case file are sufficient for
this purpose, the Court may decide to follow the written procedure unless an
individual insists on a public hearing in a case involving civil or criminal
matters."
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 this point see also the previous
Opinion of the Venice Commission (CDL-INF (1996) 10, sub. 6).
Article 30: Some formal requirements concerning petitions
and complaints are too detailed and will probably be a source of technical
mistakes. It does not appear appropriate to ask the petitioner to provide the
Court with the exact source of the applicable legal provisions (item 6 of
Article 30). The court knows the law (iura
novit curia).
Article 40: This Article establishes two chambers
within the Constitutional Court: one composed of four, the other composed of
five judges. According to Articles 41 and 42, the division of competences
between the Plenary and the chambers depends on the normative act complained
about. Consequently, 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. The provision of Article
37 which allows for the rejection of manifestly ill-founded complaints might
serve as a remedy for this problem (see also point 2.1 above).
According to Articles 17
and 36, the distribution of cases between the two chambers is a prerogative of
the Chairman. The Commission suggests, however, a provision on this issue which
relates to objective criteria. This issue could be regulated in the rules of
procedure.
Article 43: 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. The following sentence could be added to Article 43: "Procedural
questions which are not dealt with in the present law and the rules of
procedure of the Constitutional Court shall be governed by the Code of
(criminal/civil) procedure".
Article 51: It is an elementary rule that criminal
provisions must be laid down and specified in a law (nullum crimen sine lege). This article would have to provide
further substantive guidelines for the Constitutional Court when it makes a
ruling on the imposition of an administrative fine.
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 to enable them to reply in writing. Such a
provision could be added to the rules of procedure.
Article 73: The Constitution (Article 86) enables
(but does not compel) the Constitutional Court to consider all aspects of the
disputes in election matters. According to the explanations provided by the
delegation, the electoral legislation does not require the Constitutional Court
to deal with matters regarding actual circumstances of holding elections and
calculations of votes but leaves this task to the electoral commissions and the
ordinary courts. The Constitutional Court takes its decision on the basis of
electoral reports without entering into questions of facts. Article 73 seems to
opt to maintain such a division of jurisdiction between the Constitutional
Court on the one side and the electoral commissions and ordinary courts on the
other side in order not to overload the Constitutional Court. The present
situation is unsatisfactory and leads to negative conflicts of jurisdiction (it
could even lead to positive conflicts of jurisdiction). As had been suggested
by the Venice Commission, the last paragraph of Article 73 obliges the
Constitutional Court to take its (final) decision on the formal aspects of the
elections only after all factual disputes have been settled by the electoral
commissions and ordinary courts. Partial decisions can obviously already be
handed down for electoral districts where no complaints are pending with the
electoral commissions and the ordinary courts after the expiry of the deadline
for the introduction for such complaints.
Article 77: Perhaps the rules of procedure should
regulate the order of voting (age or seniority).
Article 81.1: should read: "shall enter into
force after their publication from the date specified in the resolutions
themselves“.
