CDL(2007)104 is quoted:
“ Article 153 (Composition and election).
122
This Article, together with Article
82.13 and Article 95.5, does not ensure a balanced composition of the Court.
All judges of the Court are elected by parliament on the proposal of the
President. If the President is coming from one of the majority parties, it is
therefore likely that all judges of the Court will be favourable to the
majority. An election of all judges of the Court by parliament would at least
require a qualified majority. Even so, however, it would not ensure the
independence of the Constitutional Court from the political power, which is
at variance with the role of guarantor which this Court must have in respect of
the political majority. As the Venice Commission had previously stressed,
the guarantees of neutrality and independence of the Constitutional Court would have been duly ensured only
through a system of appointment whereby this responsibility is shared between
different and autonomous powers and institutions of the State.
123
It would also have been preferable
to leave the election of the President to the Court itself
Article 154 (Cessation of duty)
124
It seems excessive to remove a judge
from office if he or she publicly expresses his or her political convictions. “
Furthermore, it is suggested to retake the wording of the
Constitution on the terms of office of Judges , the
minimum requirements for Judges, the composition of the Court etc. as per Article
153 of the Constitution.
Article 9
In the last paragraph it is referred to a majority which
shall be the majority of “all judges”. This wording is in conformity with the
Constitution. However, in the context of Article 9 of the draft Law it is a
vote on the suspension of a judge or the President of the Court in relation to
a criminal investigation. It is not at all clear whether the person under
investigation votes or not and if the wording “all judges” includes this person
or not.
It might be preferable to clearly quote that in those cases
the person concerned has to refrain from voting.
Article 13
The meaning of this Article is not clear, which might be due
to the translation. If the intention is to ensure a judge the possibility to
return to his or her working place with a public or private employer, other
laws should be consulted (e.g. working law).
Article 16
It might be found only in the translation but the wording
concerning the Secretary General “... appointed and dismissed by the Constitutional Court for the period of five years with
the ...” should be
checked as for the term “dismission for a period of 5 years”.
Article 19
The wording of par. 3 should read “Without prejudice to
paragraph 1 and two above ... “. There is no obvious reason to leave out
par. 1, as there is also an exception made thereto.
Article 20
It is not clear, what is meant in par. 2. Are there rules
which shall be applied without the parties knowing them beforehand?
Article 22
It should be clarified who is meant by “other persons”.
It might well be a reference to Article 21 last paragraph [“other persons,
in accordance with the law”].
Articles 27 and 28
A judge-rapporteur examines whether the procedural
preconditions and other conditions for conduct of the proceedings and
determination of the request have been fulfilled. [Art. 27].
Art. 28 refers to incomprehensible
or incomplete submissions.
The minimum requirements are fixed in Article 61 for a
constitutional complaint.
Article 42
See also remarks to Article 3. It would be a good idea to
leave some freedom of decision for publication to the Court itself.
Article 51
Under number 1) the court shall discontinue proceedings if,
during the proceedings, the Law was harmonised with the Constitution etc. There
may be situations where the determination that a law violates the Constitution
has to be issued as a court’s decision, even if – during the proceedings – the
law has been changed as to become in conformity with the Constitution. It is
understandable that the Court has this liberty of appreciation but it should be
made sure that this is the case.
Article 67
This Article proposes an “alternative wording”.
It is not clear whether the alternative wording is an
alternative in the sense that the other text is substituted or if it is a text
which is to be added after the last paragraph of the other text, which would
make sense. In fact the two texts seem to be complementary and not
contradictory. It would not be a bad idea to combine both versions into one text
using them just one after the other.
[See also Article 70 where the decision is expressively
mentioned to be a legal basis for the claim of damages.]
Article 111
Paragraph 1 states that authorities can also be fined and,
according to paragraph 3, so can the responsible person of the authority. It is
the question to know whether it makes sense to fine an authority submitted to
the State Budget which would basically mean to take money from one budget
position and let it enter into another position. It might make more sense
(probably) just to fine the responsible person in that authority.
Article 112
The fact of applying the new procedure, as in the draft Law
for the proceedings, which have started under the old Law (instead of
terminating those procedures under the old Law) is surely worth discussing.
