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Strasbourg, 26 March 2004
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CDL-JU (2004)030
Eng. only
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
in co-operation with
the Constitutional
court of azerbaijan
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INTERNATIONAL
LEGAL TRAINING
WORKSHOP
Improving Eexamination Methods of
Individual Complaints
Effective Case Management
Effective Decision Drafting
Baku, 26-27 February 2004
REPORT
ON
“Consequences within
the Constitutional Court of Latvia of the introduction of individual
complaints”
Dzintra Pededze, Latvia
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Consequences within the Constitutional Court of Latvia of the
introduction of individual complaints
Honourable ladies and
gentlemen!
First of all I would
like to express gratitude to the organizers of this event for inviting me to
this interesting and important seminar. The experience of our colleagues from
other courts facing
constitutional complaints always is very usefully for our Constitutional Court, because we are
dealing with this matter only for approximately two and a half years, namely
from the July 1th 2001.
Making myself
familiar with the new law on the Constitutional
Court of Azerbaijan, on the one hand I can see many similarities with
the situation in Latvia two and a
half years ago. In this short report I would like to concentrate most on these
similarities and tell you about our experience in this field. I can imagine
that you have similar problems too. So our good and also bad experience could
be helpful.
On the other hand
there are some differences in the model of the constitutional claim of the Constitutional Court in Latvia. I won’t
spend much time telling you about advantages and disadvantages of our so-called
“false” or “pseudo” constitutional claim. Azerbaijan has
chosen its own model and now this choice must be put into practice.
I
would like very shortly to acquaint you with the headlines of our model because
without this introduction it will be hard to understand our practice correctly.
But I won’t go into all particularities of our model, which can’t be useful for
putting your model into practice.
At the
Constitutional Court of Latvia the term ”case” can be used in the wider meaning and in the
narrower one. In the narrower meaning we could speak about “the case” only when
the decision to initiate the case is taken. In the wider meaning we could speak
about “the case” from the moment when the application, namely constitutional
claim is submitted to the Constitutional
Court. In this report I shall speak
about the case in the last meaning and inform how we are dealing with the
“case” in this wider meaning, because
the stage of initiating of the case is very important, when one is dealing with
constitutional claims.
v
In the Latvia the
amendments to the Republic of Latvia
Satversme (Constitution) about
the Constitutional
Court and the Constitutional Court Law were passed
in June, 1996. The Constitutional
Court started its activities in December 1996. But
at that time there was nothing about constitutional complaint either in the
Constitution or in the Constitutional
Court Law .
Only in November, 2000 the individual complaint was envisaged in the
amendments to the Constitutional Court
Law. These Amendments essentially changed the performance of the Court. As a
matter of fact, one may speak even about two stages of development of the Constitutional
Court, marked by the amendments taking effect on July 1, 2001.
So there is big
similarity in the situation in Latvia and in Azerbaijan. Namely,
both courts started their performance without constitutional claims and worked
without constitutional claims for a long time. In Latvia at that
time a lot of big and small things were worked out as concerns the performance
of the Constitutional
Court. Everything:
procedure, work of justices, work of the staff, relations with mass media were
worked out in the situation, when there was no institute of the constitutional
claim. We envisaged, that the constitutional claim will take changes, but in
the fact the changes were wider than we suspected.
v
As I have mentioned before, a specific model of
the constitutional claim functions in Latvia, namely, the so-called ”pseudo or
false constitutional claim”. An application, submitted by a person, has been
named the constitutional claim. In compliance with Article 192 of
the Constitutional Court Law ”any person, who holds that his/her fundamental
rights, established by the Constitution, have been violated by applying a legal
norm, which is unconformable with the legal norm of higher force” may submit a
claim. As a matter of fact, the constitutional claim in Latvia is one of the types of applications
on the control of norms. There is no possibility to make the constitutional
claim about the act of the court. Thus, our model is narrower than the constitutional
claim, say, in Germany, Slovenia or in Azerbaijan.
As concerns the constitutional claim, the Constitutional
Court of Latvia may review
only the compliance of a legal norm with a legal norm of higher legal force.
Our model doesn’t provide the possibility to review at the Constitutional Court the cases mentioned in Article
130.3.4 of the Constitution of Azerbaijan Republic. So there is no constitutional
matter in Latvia in cases provided for by Article
34.2 of the Law on the Constitutional Court of Azerbaijan. Namely:
– no
constitutional case is initiated in Latvia if the normative legal act which
should have been applied was
not applied by a court;
– no
constitutional case is initiated in Latvia if the normative legal act which
should not have been applied was
applied by a court;
– and
no constitutional case is initiated in Latvia if the normative legal act was not
properly interpreted by a court.
My opinion is that this is the biggest
difference between the constitutional claim in Latvia and in Azerbaijan. And I can guess that this means
many more constitutional claims and more problems in reviewing of cases in Azerbaijan than they are in Latvia.
v
However, even our model of the constitutional
claim took a drastic increase of work-load of the Constitutional Court. The work-load
noticeably differs in the two periods of the Latvian
Constitutional Court performance. From
the time the Constitutional Court commenced
its activities, namely, from December 1996 to July 1, 2001 only 33 applications were registered at the
Court and on 30 of them cases were initiated. The greatest number of
applications was received from the deputies of the Saeima.
In its turn from July 1, 2001 to January 1, 2004, 469 applications
have been taken decisions on in the Panels of the Constitutional
Court and 58 cases have been initiated. More than
90% of the applications have been received from the individuals.
Theoretically we were
ready to face a big amount of claims. Practically many unforeseen problems
arose. From the figures mentioned one could see, that in the last two and a
half years there have been initiated twice as many cases as in the previous
four and a half years. And one can see that in the two and a half years more
than 10 times increased the number of applications to be decided as compared
with the previous four and a half years.
Thus one can see that
there were changes in the activities of the Constitutional Court. The
justices and the staff is spending much more time for studying applications
before taking the decision to initiate a case or not.
v
And the work of the
Chancellery and of the Chairman of the Court and his staff has changed as well
because of the big amount of the so-called documents, which evidently don’t
meet the requirements determined by law concerning applications. Since July 1, 2001 until January 1, 2004 1470 documents were
submitted with different names but with one purpose, namely, to initiate some
activities of the Constitutional Court in
current case or question. As I have said, only 469 from them, it means less
then 1/3 were forwarded to the Panels of the Constitutional Court. All the
others evidently didn’t meet the requirements determined by law concerning
applications. The submitters of these applications receive the explanation
letter signed by the Chairman of the Constitutional Court. In such
letters there are explanations about the competence of the Constitutional Court and
requirements determined by law concerning applications. And there are
explanations why the current document evidently doesn’t meet these
requirements.
I guess that there
should be a very similar situation in Azerbaijan even if
the model of the constitutional claim differs, because there is some similar
kind of thinking we have inherited from the previous system. Namely, the
individual isn’t ready to defend his rights himself at that level where these
rights should be defended and how they should be defended. There are many
peoples who think that there should be some-body somewhere in the state power
who should decide what to do, and who should do everything instead of the
individual himself. In previous times such persons wrote claims to the Party
Committee, today they write claims to the Constitutional Court. They
write about everything they worry about. And they call such claims the
constitutional claim.
Sometimes it is
physically very hardly to deal with such letters, where particularities of
current case are presented. Because the only one suggestion we as lawyers could
give is the suggestion to ask for legal assistance. And we know the answer: I
don’t have money, could you help me…
But as the matter of
fact Constitutional Court can’t act
as a legal assistance office. Especially in cases, when the application to the Constitutional
Court should be written. So our position is, that we
consult persons only about the procedural questions, but we don’t give precise
suggestions about the legal justification of the application. It is very
important to discuss this solution at the very beginning, because the members
of the staff sometimes would like to be good human beings and help the
applicant to draw up the application. But the result could be very harmful to
everybody, because suspicions could arise, that the court can’t impartially
review such cases.
Actually we have one
good solution for this situation. Namely, when we see, that there could be the
violation of the fundamental rights of a person, but the case is not within the
jurisdiction of the Constitutional Court or the application does not comply with
the requirements of the Law, we ourselves send the application to the State
Human Rights Bureau or suggest the applicant to go to this institution.
The Constitutional
Court can’t be a magic remedy for all problems of
our society. Everybody should do his own task.
v
However every court,
which starts to deal with constitutional claims should be first of all mentally
ready to face big changes and to revise every custom of his work and every
interpretation of procedural norms made by abstract control as well.
For example, there
are big similarities in the Article 34.6 of the Law on Constitutional Court of
Azerbaijan and the Article 18 of the Constitutional Court Law of Latvia. Only our
Law is a little bit more laconic. Article 18 determines that to initiate a case
an application to the Constitutional
Court shall be made in writing. The application must
indicate: 1) the applicant’s name; 2) the institution or official who issued
the disputable act; 3) an account of the true circumstances of the case; 4) the
legal justification of the application; 5) the claim presented to the Constitutional
Court.
The previous practice
was that in his/her claim presented to the Constitutional
Court the applicant should precisely indicate the
name and the date of issue of the challenged act.
But with the first
two constitutional claims received in the Constitutional
Court even some days before the July 1, 2001 there arose the
question about how to interpret these norms in the current situation. Both
applicants were detained persons, to whom the security measure of arrest was
applied. They wrote that there was one normative act adopted in the May 2001,
which determines their rights and violates these rights. But this act wasn’t
published and they in the prison could not get information about the name, date
of issue, author and precise content of this act. The essence of the claim was
that this act prohibited receiving food parcels.
On the one hand these
claims didn’t meet the requirements of law as to the form of application. On the
other hand the aim of the norms of the Constitutional Court Law isn’t to
restrict the right of a person to address the constitutional claim in the case,
when the state authority violates their rights
with the act, which isn’t even published.
The Constitutional
Court didn’t reject these claims. Of course, the
Court couldn’t initiate the case about abstract act without name, date etc. The
Court requested the Ministry of Justice to give information if there was such
act, who had issued them, if it was published etc. And, indeed, there was an
unpublished normative legal act – the Ministry of Justice Instruction
”Transitional Provisions on the Procedure of Keeping the Suspected, Accused,
Detained and Sentenced Persons in Investigation Prisons”. At that time the
above act determined the rights of the persons in investigation prisons.
The case was
immediately initiated. Later in the judgment in this case[i] the Constitutional
Court established, that the challenged act was an
internal normative act. Regulation of the relations between the state and the
imprisoned persons by internal normative acts is permissible only if the
consequences of the above regulation are not unfavorable for the imprisoned
persons. As concerns the imprisoned persons, whose relatives cannot send money
to them, the consequences of the prohibition to receive food parcels, are
unfavorable. The norm of the Internal Order, determining the prohibition on
receiving food parcels, has been passed ultra vires (by violating the limit of
authority). The Court established that the challenged act restricts the
fundamental rights of imprisoned persons.
In this judgment for the first time in Latvian law history was made the
conclusion that the limitation of the fundamental rights of the imprisoned
persons is permissible only by law or on the basis of the law.
This example shows
that the norms of Constitutional
Court procedure should be interpreted in accordance
with the aim of constitutional claim. There one could see a slight difference
between abstract control initiated by so-called political actors and
constitutional claims initiated by individuals.
v
The above example, of
course, was a little bit extreme. But it was one of the features of the
transitional stage from the socialist to the Western legal system. In the
Constitutional Court of Latvia many cases were initiated on constitutional
claims and connected with the problems when the Cabinet of Ministers or
institutions, subordinated to it, or even the Presidium of the Saeima
(Parliament) had reached a decision on issues, which in fact had to be settled
by the legislator. Sometimes the challenged acts are very specific and it is
hard to establish the kind of the act. Especially at the stage of initiation of
the case such cases are hard to deal with, because one of the arguments always
is that the case isn’t within the competence of the Constitutional
Court. In one scandalous case[ii], where
the application was submitted in the first months after the constitutional
claims were reviewed, the Constitutional Court paid much
attention to the procedural questions of the constitutional claim. First of
all, the court stresses that one of the fundamental principles of a democratic
state is the principle of separation of power. It follows that there exists
control of the judicial power over the legislative and executive power. No
legal norm or activity of the executive power shall remain out of control of
the judicial power, if it endangers interests of an individual. On the one hand
the Court holds that the judicial power as a whole and the Constitutional
Court as its constituent part shall insure control
over both other state powers. As concerns the judicial power, the competence of
the Constitutional Court ”steps back” behind the competence of the court of
general jurisdiction and is interpreted as narrowly as possible. First of all
it concerns the cases of constitutional claims. The law envisages that all the
general means of protection shall be exhausted.
But on the other hand
the Court pointed out that in its turn examination of the Presidium normative
acts is not within the competence of any court of general jurisdiction,
therefore such an interpretation of Article 16 of the Constitutional Court Law,
which denies control of the above acts in case of violation of rights, would be
at variance with Article 1 of the Constitution. Thus from the point of view of
Article 16 of the Constitutional Court Law, a case on conformity of a
challenged act with the legal norms of higher legal force is within the
competence of the Constitutional Court.
v
Article 20 of the
Latvian Constitutional Court Law determines the cases, when the Constitutional
Court may refuse to initiate a case. The conditions
are different with regard to the constitutional claim and other applications.
When reviewing the
applications the Court experiences the right of refusing to initiate a case,
if: 1) the case is not within the jurisdiction of the Constitutional Court; 2)
the applicant is not entitled to submit the application; 3) the application
does not comply with the requirements of Articles 18 or 19-192 of the
Constitutional Court Law; 4) an application on an already reviewed claim has
been submitted.
When reviewing a
constitutional claim, the Court may refuse to initiate a case also if the legal
justification of the claim is evidently insufficient to satisfy the appeal.
The last provision is
most of all used when refusing to initiate a case after receiving a
constitutional claim.
There to my mind lies
the biggest problem of the constitutional claim. Namely, how deep should the
Panel of the Constitutional Court go into
the case to reach the decision about initiating the case or to refuse
initiating it.
In the above case in
the judgment was drawn up the opinion of the Court about this stage of the
procedure. “In compliance with the first part of Article 192 of the
Constitutional Court Law a person who ”holds…” may submit a constitutional
claim. The Law puts a stress on the viewpoint of the person on violation of the
particular right and not on that of the court. The Law demands the person to
hold that the fundamental rights fixed in the Satversme have been violated.
However this demand has to be read together with the sixth part of Article 192
of the Constitutional Court Law, which determines that the viewpoint has to be
substantiated. Thus, to initiate a case on a constitutional claim, it is
necessary to establish that the claim includes a sufficient legal
substantiation about it. However, the Constitutional Court Panel has no
obligation of evaluating the viewpoint of the applicant ”to the end”. The
Constitutional Court Panel has the right of refusing to initiate the case only
in case if the legal justification of the claim is evidently insufficient to
satisfy the appeal. In its turn it has the obligation to do it only if there is
no legal justification.
An opposite assumption, namely, that the
Constitutional Court Panel, already when examining the constitutional claim and
reaching the decision of initiating a case or refusing to initiate it, has to
establish that the fundamental rights of a person have been violated, would
contradict the logical advancement of the Constitutional Court proceedings,
which has been determined by law. The issue on the fact whether the fundamental
rights of the applicant of the constitutional claim have been violated has to
be adjudicated by the Constitutional
Court in its judgment.”[iii]
v
The increase of
work-load causes many problems in the all-day work of the Constitutional
Court. First of all these problems were in the
organization of the work of justices and the so-called legal staff. Our Constitutional
Court has small number of justices – only seven. And
the staff isn’t big either. Until review of constitutional claims started,
everybody examined every application in detail. Every small problem in the
interpretation of the norms of procedure formally or informally was discussed
by the full body of justices and everybody without special announcements knew
the latest procedural solutions.
After review of the
constitutional claims started, the work-load doesn’t allow such a style of
work, especially in the stage of initiating of a case.
The Constitutional
Court Law determines that the Panel consisting of three justices examines the
application and takes the decision to initiate a case or refuse to initiate it.
The panel is elected for a year by an absolute majority vote of the entire
total of the justices. Just now there are four Panels at the Constitutional
Court, thus the Chairman of the Court and his Deputy
preside over the body of the panel, but all the other 5 justices are each in
two Panels.
As concerns the
procedure of appointing the Panels to review the case, the Rules of Procedure
of the Constitutional Court determine
it. Panels are appointed in the succession of the applications entered in the
received Correspondence Register. Panels are appointed in the succession of
their formation.
Thus the chairman
can’t freely choose which panel will take the decision about the application.
The good side of such a solution is that the work-load of different panels is
similar and that nobody could reproach that the chairman is personally
interested in forwarding of the particular application to the current panel.
The bad side is that for different panels to take decisions about similar questions. On the one
hand it takes more time and, on the other hand, even the bodies of the panels
were changed. There are some differences in the practice of different panels
and I dare to say that sometimes the similar question in the different panels
has different results.
One small solution to
this problem is provided in the Paragraph 70 of the Rules of Procedure of the Constitutional
Court. Namely, to advance objective and quick
reviewing of applications, the Chairman of the Court with a motivated direction
may assign the task of reviewing the application to another panel. In practice
it takes place in two cases, namely, 1) when one and the same person submits
several mutually connected claims and 2) when several persons submit similar
claims. There have been cases when more than ten copies of the same claim are
submitted, changing only the data of the applicant. We have had many cases when
ten and more similar applications were submitted.
However this is only
partial solution of the above question. It is very important to create an
internal information system to sum up the latest experience, which could be
helpful for other cases.
v
Of course, it isn’t
possible to mention all the interesting questions we faced in these two and a
half years. So I would like to answer your questions about every particular
matter you are interested in.
Thank you for
attention!
