EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW
(VENICE COMMISSION)
in co-operation with
the research center of the supreme
court
OF THE REPUBLIC OF UZBEKISTAN
|
CONFERENCE ON
“THE CURRENT SITUATION AND FURTHER PROSPECTS
OF JUDICIAL REFORMS IN UZBEKISTAN”
Tashkent, Uzbekistan, 25-26 June 2009
|
REPORT
“IMPORTANCE OF LEGAL INFORMATION
WITH A SPECIAL REFERENCE TO
(ORDINARY) COURTS
AND/OR CONSTITUTIONAL COURTS”
by
Mr Arne Mavčič
(Head of the Analysis and International Co-operation
Department of the Constitutional Court of Slovenia)
Concerning public character of activities of
constitutional courts, only a permanent inflow of applications to the
Constitutional Court actually justifies its existence and function. The constitutional
case-law system should further insure the rapid spread of constitutional and
legal principles in force and should contribute to greater legal safety.
Accordingly, the collected or electronically available case-law might be
interesting for a legal expert who is in search of a constitutional case-law
that might be similar to the case they are working on, as well as for someone
who plans to lodge an application before the Constitutional Court, or for a
constitutional framer or legislature as a user creating new legal rules, as
well as for a constitutional court or an ordinary court as a user exercising
its constitutional review and/or judicial function.
1.
SIGNIFICANCE
OF (COMPARATIVE) CONSTITUTIONAL CASE-LAW INFORMATION FOR THE ACTIVITIES OF THE
CONSTITUTIONAL COURT
Limiting myself to issues regarding
constitutional courts (what may from the legal information point of view
concern any ordinary court as well) I would emphasize that the universal
participation of constitutional courts in the modern information exchange
became a very important change, in particular because until 1990 legal
informatics in the domain of constitutional matters, with a few exceptions,
generally speaking, did not keep up with general trends in other domains. In
many cases the documents issued by constitutional courts (mainly decisions)
used to be processed by other subjects, at that time more advanced in
informatics.
On these grounds from the beginning
on the initiative by the then founded Venice Commission of the Council of
Europe was welcomed through which constitutional courts belonging to a common
information (documentation) centre would enable their potential users to access
the information on constitutional matters. Nowadays, the number of legal
information is still on the increase, which entails more troubles in
orientation within one's own and other legal systems. In this situation the
solutions providing appropriate professional comparative information exchange
as well as comparative studies on constitutional matters are very welcome.
Hitherto, we should not forget the
respective first attempts in this field: when a long time ago such as the very
concrete project was explained on the occasion of the Seventh Conference of
European Constitutional Courts, held in Lisbon from 27 to 29 April 1987. It was
a progressive and visionary joint project of the then Italian and German
constitutional courts which aimed at the concentration of comparative
constitutional case-law available for constitutional courts and other users, located
at the University of Bologna. Unfortunately, this project has not been
understood by participants and therefore not realized at that time.
From the point of view of
constitutional case-law usage, the documents shall be collected as full texts,
possibly without selection. The selection shall always be subject to the fact
by which it is to be performed: in principle, the producer of documents is the
only one authorized to it. The selection shall always be sufficiently
representative. The user's interest shall always be taken into account. In my
opinion, the information process is optimum when the user does not have the
data served by the producer but is free to select them.
Concerning the Slovenian
Constitutional Court's practice, there are the following types of information
necessary for any form of comparative constitutional-law issues:
-
Constitutional
case-law;
-
General
opinions taken by constitutional courts;
-
Theory
on constitutional review;
-
Regulations
on constitutional matters (provisions of the Constitution, laws on
constitutional institutions or institutions with similar competence, rules of
procedure and other internal regulations of constitutional courts etc.).
The exchange of such circle of
information should further provide quicker spreading of legal principles in
force and should contribute to greater legal safety. In compliance with such
concept, each individual document might be interesting for a wide range of
external users, i.e. regarding the contents of a definite decision of the constitutional
court or the contents of any other text from the practice and theory of
constitutional courts. It could be duly anticipated from the Slovenian
experience that the final user of legal information would be less interested in
more bibliographic data than in more substantial information.
The study of collected
constitutional case-law may be of the following importance:
-
Aid
to the constitutional court activities;
-
Scientific
contribution to the theory on constitutional review;
-
Historical
survey of constitutional review;
-
Practical
aid in the domain of implementation of law.
Information on the constitutional
case-law is classified under scientific information of the vast domain of law
and legislation. This encompasses the use of specific knowledge from the domain
of constitutional justice. As a matter of fact, this area includes information
on anomalies in law. The information on the practice of constitutional courts
is relevant for the investigation of systems of constitutional review from the
comparative point of view. On the other hand, the information in question is
designed for monitoring social phenomena that are relevant for safeguarding the
rule of the Constitution and the law and that are reflected in the practice of
constitutional courts. A complex solution of any social case, however, requires
a high level of technical, scientific and research work whereby information on
the standpoints of constitutional justice might be useful as well.
2.
THE
SLOVENIAN CHRONICLE - FORMER EXPERIENCES OF THE CONSITUTIONAL COURT
OF THE REPUBLIC OF SLOVENIA
Starting with 1963, the legal
Information system of the Constitutional Court of the Republic of Slovenia
included the constitutional case-law of the Slovenian Constitutional Court in
the uniform legal database including also the constitutional case-law of all
other constitutional courts from the territory of the former Yugoslavia. The
compiled data on the decisions of nine constitutional courts at that time were,
however, an indispensable basis for their work. Therefore, since the
introduction of constitutional courts in the former Yugoslavia in 1963, the
then Legal Information Centre of the Slovenian Constitutional Court was engaged
in a systematic acquisition and comparative processing of decisions of all former
Yugoslav constitutional courts. These efforts developed into comprehensive
records on the decisions of Yugoslav constitutional courts (translated into one
language – into Slovenian), organized in files. This was an excellent basis for
transition to computer processing of the constitutional case-law. The mentioned
database was computerized by 1 January 1987. The database was based on the then
full-text program packages of different generations and was open to the public
at many locations. The database included full-text documents (covering
constitutional practice and theory) and was subject to monthly updating.
Very early, an exchange of
constitutional case-law has been practiced with the constitutional courts of
Italy, Austria and Germany; besides, in 1989 the first on-line computer
communications with foreign information systems were introduced, such as ECHO,
Luxembourg, JURIS (including all CELEX bases), Germany, and ALEXIS (including
RDB Austria), Germany-Austria.
The additional goal of the then national
(comparative) database(s) was to build the Court's own databases, which is
particularly important with reference to the fact that national databases
should, wherever possible, be included into international systems of similar
character. This was important for several reasons: it led to an exchange and
comparison of experiences and thereby to improved efficiency and quality of
work. Further, more and more attention was paid to the cooperation related to
the building of foreign national and international databases as well as to the
improvement of the quality and standardization of primary documents.
The Slovenian Constitutional Court's
information exchange with other similar information systems, databases and
other similar sources of legal information influenced and still influences the
creation of common standards especially concerning the structure of
constitutional review, powers, organization and procedure before constitutional
courts, and even the unification of some systemic legislative solutions.
The question as to whether Slovenian
constitutional case-law from the period after the adoption of the 1991
Constitution (Official Gazette RS, No. 33/991), in its relations to the
fundamental rights and freedoms, has adapted to or is more comparable with
foreign constitutional case-law, can be answered in the sense that the
Slovenian constitutional case-law comes close to the foreign case-law in its
approach to fundamental rights. The number of examples from this field has
increased. In this respect it is necessary to bear in mind that the “frequency”
of individual rights before Constitution Courts mainly depends on what kind of
problem appellants place before Constitutional Court. The Constitutional Court
now appears as the guardian of the constitutionality and legality (see Para. 1
of Article 1 of the Constitutional Court Act, Official Gazette RS, No.
64/07)in such a way that it decides not only on the accordance of general legal
acts with the constitutional provisions on fundamental constitutional rights
(in the sense of abstract and specific review of general legal acts) but also
on constitutional complaints against the violation of human rights and
fundamental freedoms by individual acts (Item 6 of Para. 1 of Article 160 of
the Constitution; Articles 50-60 of the Constitutional Court Act).
3.
PUBLIC
CONTROL/THE PUBLIC NATURE OF THE COURT'S ACTIVITIES
The public nature of the activities of the Constitutional Court is explicitly declared by the Constitutional Court
Act (Para. 1 of Article 3) and by the Rules of Procedure (Articles
23 to 33, Official Gazette RS, No. 86/07). This principle may be realized in
some different forms:
Save where expressly provided by statute (Article 35 etc. of the Constitutional
Court Act), all Court proceedings are conducted in public and all decisions
are delivered in open Court (the public nature of court hearings; the public
nature of delivering decisions). These public activities function as a control
or supervision of the impartibility and legality of the decision making
process.
The principle of the public nature of the activities, declared by the
above mentioned provision, is of general importance concerning all kinds of
proceedings; the purpose of the mentioned principle is to ensure a control on
the activities of the Court to the parties of the proceedings and also other
citizens (the unlimited circle of individuals). The respective function is
ensured e.g. also by the legal provision on public hearings before the
Constitutional Court (Article 35 and 36 of the Constitutional Court Act).
The constitutional Court may exclude the public from a hearing or part thereof
on the grounds of protecting public morals, public order, national security,
the right to privacy and personal rights (Articles 37 and 38 of the Constitutional
Court Act). The public nature of the activities of the Constitutional Court
results also from some former internal regulations or systems adopted by the
Constitutional Court[1] - the
then Legal Information System of the Constitutional Court introduced in
1987, the computerised database of Slovenian Constitutional Case-Law as a
public database, in principle accessible to all users of legal information.
Providing information to the public concerning
decisions of the Constitutional Court is, moreover, one of the functions, following the
principle of the public nature of the activities of the Constitutional Court,
set forth in laws and in other regulations.[2]
The Constitutional Court applies this principle by publishing its decisions in
official publications (e.g. Official Gazette, see Article 69 of the Constitutional
Court Act and Article 46 of the Rules of Procedure of the Constitutional
Court) and by allowing access to information on its decisions in its
database.
Slovenian
constitutional case-law has been published and offered to interested parties:
·
in Odločbe in sklepi
Ustavnega sodišča (the Official Digest of the Constitutional Court; Slovenian full text version, including
dissenting/concurring opinions, and English abstracts) since 1992;
·
in the Pravna Praksa
(Legal Practice Journal; Slovenian abstracts, with the full-text version of the
dissenting/concurring opinions);
·
since 1 January 1987 to 18 July
2003 via the on-line STAIRS database (Slovenian full text version; since
1963; English full-text version since 1992); for this purpose a special
English-Slovenian glossary was created containing terms on constitutional law;
·
the only original CD-ROM
containing the Slovenian Constitutional Case-Law (in Slovenian) was issued in
May 1998;
·
since 1993 in the Bulletin on
Constitutional Case Law of the Venice Commission of the Council of Europe (including English and French summaries of the most
important current decisions), as well as in the CODICES database issued
on CD-ROM (Slovenian and English full-text versions and summaries in English
and French), http://www.codices.coe.int; http://www.coe.fr/codices;
·
since August 1995 on the Internet
(Slovenian constitutional case law since 1990 (full text in Slovenian as well
as in English - http://www.us-rs.si);
·
since 1998 on the homepage of the
A.C.C.P.U.F. (the French Speaking Group
of Constitutional Courts) (http://www.accpuf.org);
·
since 2000 on the website of the
Ius-Info database of constitutional case-law (abstracts and full texts of decisions)
and literature (abstracts) in Slovenian from 1963 onwards
(http://www.ius-software.si);
The circulation of information
through several computerized information systems: Legal
information on constitutional review matters as supported by such different
means of communication or media, taking into consideration the principle of the
public nature of the activities of any Constitutional Court, circulate from
the Constitutional Court as a decision issuer, to the public, the potential
petitioners before the Constitutional Court, who receive information which may
motivate their new petitions. This stream of information constitutes a certain
procedural circle due to the nature of proceedings before any Constitutional
Court, which are in principle proposed proceedings (jurisdiccion voluntaria):
only a permanent inflow of petitions to the Constitutional Court actually
justifies the existence, function and activities of the Constitutional Court.
The initial purpose of the legal databases
of the Slovenian Constitutional Court was to provide more
flexible processing of legal information, primarily constitutional case-law, as
a support to the Constitutional Court in its decision-making processes. The
activities of the Constitutional Court are conducted in public (Article 3 of
the Constitutional Court Act, Official Gazette RS, No. 15/94;
Article 5 and Articles 53 to 55 of the Rules of Procedure of the
Constitutional Court, Official Gazette RS, No. 49/98). Therefore the corresponding
databases were not created for internal users only (judges and legal advisers
of the Court); from the very beginning they were intended for external users of
legal information concerned with practice and theory related to constitutional
review.
4.
THE
INDEPENDENCE AND THE AUTONOMY OF THE ORGANIZATION OF THE CONSTITUTIONAL COURT
Most systems of constitutional/judicial review allow for the
organizational autonomy of the empowered body on the basis of the Constitution
or on the basis of the Constitutional Court Act. This
means they authorize the respective constitutional/judicial review bodies to
follow their own rules regarding their internal organization. Special services
of the Constitutional Courts are organized in a similar way: they consist of
clerks and clerical staff, whereby the head of special services generally holds
the status of a secretary general.[3]
The Constitutional Court of the Republic of Slovenia regulates its organization
and work with its rules of procedure and other general acts (Para 2 of Article
2 of the Constitutional Court Act). The new Rules of Procedure
were adopted on 17 September 2007 (Official Gazette RS, No. 86/07).
Concerning legal information, two special services were introduced as
follows:
The Analysis
and International Cooperation Department gathers data and other information
of a legal nature needed for the work of the Legal Advisory Department,
prepares comparative legal materials and analyses necessary for cases being
considered by the Constitutional Court, prepares the legal basis for the
constitutional court records, provides translations of the Constitutional
Court decisions into English, and performs tasks in the field of international
cooperation (Article 17 of the Rules of Procedure).
The Documentation
and Information Technology Department ensures information
technology support for the work of the Constitutional Court, provides for the
computer-supported operation of the Constitutional Court, maintains
constitutional court records, and performs library services required by the
Constitutional Court (Article 18 of the Rules of Procedure).
The
complete external and internal (legal) information system was introduced in
2005. Namely, since 1991, when the Constitutional Court of the Republic of
Slovenia was established, the development of information technology has
progressed through many stages: from using the computer as a writing machine,
to the Integrated Information and Case Management System used at present. The
last larger upgrade of the information system was initiated in 2004 and has not
yet been completed. That year, an integrated system was introduced that
incorporated all previously separate applications and documents into the Integrated
Information and Case Management System (CMS), which is used by all staff of the
Constitutional Court who take part in the business processes of the
Constitutional Court regarding cases.
The
Information System of the Constitutional
Court from the users’ perspective includes the following components: integrated
case management system, document assembly system (which is actually a part of
the case management system), intranet and extranet, information services,
internal and external legal databases, website, user tools (Word,
Outlook, etc.), other applications (e.g. finance, human resources, etc., which
are not essential for the legal part of the business process.
5.
THE USE
OF CODICES STANDARDS
From the beginning on, Slovenia has
been participating in the Venice Commission activities when as early as
September 1991, at the Venice meeting of the Working Group on Constitutional
Justice, it was decided to establish a documentation centre to collect and
disseminate constitutional case-law as well as to make such case-law as widely
available as possible. The Slovenian liaison officer was appointed by the Court
in 1991.
Since 1992 the Slovenian
Constitutional Court has been providing not only the Slovenian version of the
Court's case-law but also the English version. Additionally, the Venice
systematic thesaurus translated into Slovenian and extended by particular
Slovenian procedural terms has been used as a basic tool for the processing of
decisions in their Slovenian and English versions. The same thesaurus has been
used as an index for purposes of the Court's Official Digest.
REFERENCES:
MAVČIČ,
Arne. Computer applications in the practice of the Constitutional Court of the
Socialist Republic of Slovenia in Ljubljana, Yugoslavia. Comput. law pract.,
1989, vol. 5, no. 6, str. 220-222. [COBISS.SI-ID 85247]
MAVČIČ,
Arne. The fundation and future significance of the international documentation centre
on constitutional matters. J. law inf. sci., 1992, vol. 3, no. 1, str.
127-131. [COBISS.SI-ID 75007]
MAVČIČ,
Arne. Data base of the Constitutional Court of the Republic of Slovenia - its
development to the intelligent interface. J. law inf. sci., 1993, vol.
4, no. 1, str. 175-179. [COBISS.SI-ID 75263]
MAVČIČ, Arne. L'expérience de la Cour constitutionnelle de
Slovénie : la communication permanente avec l'outil Internet. Bull. - ACCPUF, 2003, no. 4, str. 137-139, ilustr.
[COBISS.SI-ID 201983]
MAVČIČ,
Arne. The role of comparative research for Constitutional Courts - the
influence of foreign and international case-law on the decisions of the Courts
- the case of Slovenia: report. V: Council of Europe. Venice Commission.
Strasbourg: Council of Europe, cop. 2004. http://www.venice.coe.int/docs/2005/CDL-JU(2005)018-e.asp.
[COBISS.SI-ID 241919]
MAVČIČ,
Arne. Superstructure of a computer aided information system in constitutional
law as a support to the decision making of the Constitutional Court of the
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organizacija, 1993, str. 11-16. [COBISS.SI-ID 68998400]
MAVČIČ,
Arne. The electronic processing of constitutional and judicial review matters:
(models, concepts, practice). V: Constitutionalism, universalism and
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Rotterdam: Erasmus university, [1999], [1999], 1 cd-rom. [COBISS.SI-ID 513219192]
MAVČIČ,
Arne. The particularities of the legal information system of the Constitutional
Court of Slovenia. V: Information juridique: contenu, accessibilité et circulation :
défis politique, juridique, économique et technique: the political, legal,
economic and technical issues to be addressed. Paris: Ed. du
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MAVČIČ, Arne. The constitutional review. The Netherlands: BookWorld Publications, cop. 2001.
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Torbic,
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