Mr. President, dear Colleagues,
- It is a great honour and pleasure for me to speak
at an International Conference organised by the Azerbeijan Constitutional
Court and the Venice Commission of the Council of Europe on a topic
regarding the relationship between Constitutional Court and ordinary
courts, a relationship which can be of particular tension, especially in
states having transformed their systems into rule of law based democracies
where ordinary courts with a long tradition are now confronted with a
Constitutional Court jurisdiction examining legislation and interpreting
laws in the light of the Constitution: Here often, as manifestly in Poland and Czech Republic,
the ordinary courts regard themselves as exclusively competent to
interpret the laws they have to apply and are often reticent to recognize
the constitutional perspective to which the Constitutional Court adheres.
My contribution is
dedicated to one important problem in the context of the relationship between
the Constitutional Courtand ordinary courts: the question of the binding force of Constitutional
judgments on the civil and penal law courts, seen from a German standpoint.
- The Federal Constitutional Court in Germany, with a
55 years existence, has developed a detailed system of well-interpreted
constitutional norms, above all fundamental rights which have a particular
impact on all branches of law, civil as well as penal law.
The first question
is: What is the binding force of constitutional court decisions? The basic
provision in the Constitutional Court Act is Article 31. Quite generally
it is said that the decisions bind all constitutional institutions.
The decisions of the
Constitutional Court have the effect of a final judgment, that means it is not
submitted to a further repeal (which does not exclude that the Court of
Strasbourg will be involved), and − besides this formal aspect −
there is also in substance a binding effect as to the decision in this
particular case.
Beyond these two
dimensions of final judgment effect which are also common to decisions of other
courts quite in general, Article 31 § 1 of the Constitutional Courts Act
establishes a specific binding force of Constitutional Court decisions on all
constitutional organs, public authorities and courts themselves. This
far-reaching binding effect covers the tenor of the judgment and the leading
arguments of the decision. This reflects the self-understanding of the Constitutional Court as an authentic interpreter of the
Constitution, a doctrine which was already formulated even at the beginning of
the Constitutional Court’sexistence (vol. 1, 14, 37) and − as to the scope of the binding
interpretation effect − redefined not long ago (Schlaich/Korioth, BVerfG6,
Rn. 485/486).
What the leading
arguments of a decision are, is not very easy to
define. A definition attempt was made in the recent jurisdiction: The
Constitutional Court worked out the concept that only those arguments in the
court’s motivation are leading which are essential; if one of these arguments
were eliminated the whole argumentation would be no longer understandable.
This binding effect
is extended beyond the parties of the case, having an effect "erga
omnes". What is much debated in Germany,
is that by this extension of the binding effect the legal reasoning of the Constitutional Court as such is also binding, no longer submitted
to scientific debate. This can lead to a doctrinal petrifaction. This also
explains the high influence of the Court’s jurisprudence on the German
constitutional law doctrine which is much more intensive than the influence of
the ordinary, especially civil law courts’ jurisprudence on the scientific
debate. It is true, however, that the possibility of separate
opinions to constitutional decisions sometimes are a starting-point for
doctrinal controversies.
- Beyond this first point let us have a look on Article 31.2
of the CCA: Corresponding to a concept dating even from the pre-war period
of the Weimar Constitution decisions of the Federal Constitutional Court challenging legislation
(annulling it, declaring it unconstitutional or confirming it), have
"force of law" themselves. These decisions are published in the
Official Journal where also legislation is published. When annulling a
law, the Court is not, as Hans Kelsen formulated, a "negative
legislator"; the piece of legislation concerned is void for its
contrariety to the Constitution; The CC is only confirming its nullity
((Schlaich/Korioth6, Rn. 496). This formal confirmation is
necessary to have security of law.
Article 31.2 goes
beyond Article 31.1 establishing even the force of law for judgments
examining legislation. This means that − as it is the normative effect of
a law − not only state institutions but also every private person is
bound. This concept has been developed in the early period of the last century
and had a different constitutional context than today. Nevertheless this
concept had been accepted and commonly used by the Constitutional Court.
Summarizing
up to here: The binding force of Constitutional Court decisions is normatively based on Article 31 I and II CCA
which gives sufficient effect to the Court’s decisions also in regard to the
ordinary courts.
- A further question is how these decisions are
executed: Article 35 CCA is very general and gives power to the CC to
decide on who shall execute and where this execution shall take place.
This means that all types of decisions, even declaratory decisions, can be
executed by measures foreseen by the CC itself (E 6, 300, 303 f.; 93, 362,
372). The Court can take these measures by its own or order them to be
taken by state institutions of the Federation and the Federations’s member
states. The power, in practice seldom used, is very wide, without real
limits, entrusted to the Court in the confidence not to abuse it
(Schlaich/Korioth6, Rn. 474). Far-reaching measures have been
taken in the two decisions on abortion (Schlaich/Korioth6, Rn.
474).
- How is the impact on ordinary jurisprudence?
In general, CC decisions
can have impact in two ways: in particular by the application of fundamental
rights (FR) and by the annulment of legislation which is relevant in a court
proceeding. This second type is not difficult to understand: The law annulled
or declared unconstitutional cannot be applied by the courts, civil, penal,
administrative courts. Sometimes, the CC is not directly annulling or declaring
unconstitutional a piece of legislative but upholding it with the (binding)
invitation of the legislator to amend this act until a certain deadline
("Appellentscheidungen"). If the legislator fails to act within this
time period the yet existing law will be void.
The first mentioned
type is more difficult: Fundamental rights which can be invoked by the
individual, after exhaustion of the legal remedies, directly before the CC, are
relevant for public, general and civil law matters. The most delicate problem
is that of defining the limit between a violation of constitutional law and
that of ordinary law. These competences are clearly distributed: the latter to
the ordinary courts, the first to the constitutional court. The doctrine has
elaborated some formula for resolving this problem. The Constitutional Court, however, resolves this in a pragmatic way.
The dogmatic proposals made by the literature could not satisfy completely but
it seems not possible to find a quite generally accepted solution. To cite an
example: The formula of Professor Schumann, my colleague from Regensburg, whose
famous doctoral thesis has developed such a concept which has found widespread
observance: He proposes that a violation of the Constitution being not only a
violation of ordinary law can be stated in the following way: If the decision
of the ordinary court which is challenged before the Constitutional Court can
be transformed into a piece of legislation and this legislation is conform to
the Constitution, the decision of the ordinary court is also in conformity with
the Constitution. If not, on the contrary, the decision of the ordinary court
violates the Constitution.
The Constitutional Court itself uses more vague,
flexible terms to indicate the limit between equality and unconstitutionality.
So, the ordinary judge violates the Constitution when, deciding his case, does
not think at all of the impact of fundamental rights. Or, the judge thinks of
it, but does not recognise fully the impact of the fundamental right.
It can easily be seen that
this issue is one of the most controversial problems which has not found and
cannot find an adequate solution in the future. Nevertheless, the pragmatism of
the Constitutional Court iswidely accepted.
6. It must also be underlined
that the Constitutional Courtfeels itself competent to interpret legislation in the light of the
Constitution. This is a well accepted, steadily exercised practice of the Court
to determine, with binding force for other institutions and also with the force
of law, the contents of a piece of legislation seen from the standpoint of the
Constitution. Here a potential conflict with ordinary courts takes place. But
in Germany, theordinary courts accept the function of the Constitutional
Court as an authentic interpreter of theConstitution which realises, by such judgments, the supremacy of the
Constitution over ordinary law.
- In this context it is also important to give a
short answer to the question: How are fundamental rights influencing civil
law? There is a well-established German doctrine of an only indirect
effect of private law which is the basis for the judgment of ordinary
courts. Besides one explicit case to be found in the Constitution, in Article 9
§ 3 of the Basic Law, concerning negotiations on working conditions and
membership in trade unions, the fundamental rights are influencing the
provisions of civil law, especially the general clauses. The legal effects
of a violation of fundamental rights in these fields are transformed into
the mechanisms of civil law. Thus, a private person’s action not conform
to a fundamental right can be qualified as against morals what affects
indeed the validity of a private contract.
The ordinary courts have to
take adequately into consideration this impact when deciding on civil matters.
The Constitutional Court,after the exhaustion of the civil court’s remedies, can annul ordinary court’s
judgment for not respecting the influence of fundamental rights on the civil
law provisions applied by the civil courts. Thus, also ordinary courts are very
closely linked to the Constitution. This is in the line of the modern concept
of supremacy of constitutional law as the supreme law of the land, expression
of a two days valid concept of rule of law.
