The Independence and the Autonomy of the Organization of the Constitutional CourtMost systems of constitutional/judicial review allow for the organisational 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 organisation. Special services of the Constitutional Courts are organised in a similar way: they consist of clerks and clerical staff, whereby the head of special services generally, holds the status of a secretary general124.
Unless Constitutional Court Acts especially provide otherwise, general labor laws apply to employees of the Constitutional Court (e.g. the Czech Republic - Article 10 of the Constitutional Court Act, Latvia - Article 40 of the Constitutional Court Act). In addition, in some systems Constitutional Courts may autonomously regulate the salaries of clerks and clerical staff, while the position of judges is regulated by the Constitution, or by a Constitutional Court Act (e.g. Slovenia - Articles 71- 79 of the Constitutional Couit Act; Latvia - Articles 38-39 of the Constitutional Court Act); Japan - Articles 50-51 of the Court Organisation Act No. 59 of 16 April 1947, Turkey - Article 59 of the Law of the Organisation and Trial Proceedings of the Constitutional Court No. 2949 of 12 November, 1983), or by one special act (e.g. the Slovak Republic - Article 17 of the Act on the Organisation of the Constitutional Court of the Slovak Republic, and on Proceedings before Constitutional Court and the Status of Judges, of 20 January, 1993) or by many special acts (e.g. Georgia, Uzbekistan) or by general provisions regulating the position of State officers.
Some significant systems in force are as follows:
Belarus: The Constitutional Court independently acquires the information facilities and personnel required for its activities (Article 24.3 of the Constitutional Court Act).
The physical and technical resources required for the activities of the Constitutional Court, including means of transport and communication, are provided by the appropriate State bodies in accordance with a procedure established by the President of the Republic of Belarus with the agreement of the Constitutional Court.
The existing level of physical and technical resources required for the activities of the Constitutional Court may be reduced only with the consent of the Supreme Council of the Republic of Belarus (Article 244 of the Constitutional Court Act).
Latvia: The Constitutional Court freely and independently carries out information and organisational facilities procurement for its activities (Article 5-1.4 of the Constitutional Court Act).
Ukraine: The Constitutional Court adopts acts which regulate the organization of its internal work in conformity with the Constitutional Court Act (Article 3.2 of the Constitutional Court Act) taking into consideration statutorial provisions on the research consultants and assistants of judges of the Constitutional Court of Ukraine (Article 25 of the Constitutional Court Act), and the Organisation and activities of the Constitutional Court of Ukraine (Articles 30-37 of the Constitutional Court Act), which involve: organisation (Article 30), financing (Article 31), the Secretariat (Article 32), standing commissions (Article 33), temporary commissions (Article 34), the archive (Article 35),the library (Article 36) and the bulletin (Article 37). The organisation of the activities of the Court are determined by the Constitution, by the Constitutional Court Act, as well as by internal acts of the Court.
Armenia: The Government shall provide the Constitutional Court with its own building and with necessary equipment to ensure its normal functioning ( Article 7 of the Constitutional Court Act).
The activities of the Constitutional Court shall be ensured by its staff in accordance with its regulations (Article 74 of the Constitutional Court Act).
Slovenia: The Constitutional Court of the Republic of Slovenia regulates its organization and work with its rules of procedure and other general acts (Article 2.2. of the Constitutional Court Act). The Rules of Procedure were adopted on 26 May, 1998 (Official Gazette RS, No. 48/98).
The administrative services of the Slovenian Constitutional Court consist of: the secretary of the Constitutional Court (responsible for matters of organization and legal knowledge and the director/assistant secretary (responsible for financial organizational matters) (Article 7 of the Constitutional Court Act).
The special services of the Constitutional Court consist of: the Legal Information Center with the legal library; legal advisers and clerical staff. The Constitutional Court appoints advisers to the Constitutional Court from among legal and other experts (Article 7.3 of the Constitutional Court Act). The Constitutional Court may employ probationers in accordance with statute (Article 7.4 of the Constitutional Court Act).
The discussion on what branch of authority is the one harboring a specialized body of constitutional review is going on. In a number of countries, as has been mentioned, constitutional review is constitutionally included into the system of judicial authority (Germany, Turkey, Russia, Georgia, Armenia, etc.), in others it is identified as an individual body (France, Italy, Spain, Poland, etc.).
In some cases the constitutional review is regarded as a legislative function. The object of constitutional review is the law itself, rather than an application of the law. In this regard it seems that the functional character of Constitutional Court is an approximation of the Parliament. In actual truth, however, this type of classification is quite irrelevant.
In certain viewpoints, the constitutional review is classified as an individual branch of power, the review power, which is clearly an exaggeration125.
Incidentally, in some countries the issue of clarifying the placement of the Constitutional Court has even become a subject of examination at a court hearing. Thus, in the Czech Republic, in spring 1995, the Constitutional Court has ruled on that point that the Constitutional Court is not a body of the judicial system, but rather is placed outside it.
An antique legal formula reads: "Justitia est fundamentum regni".
What is then the constitutional review and what are its place and role within a state governed by the Rule of Law?
Inasmuch as the constitutional review is in the center of the whole system of the watch over legality, in the same way the constitutional review is in the center of the system of bodies of constitutional review. The introduction of constitutional review into the state legal system shows that the state would rather delegate the competence on taking decisions on constitutional and legal issues to specialized institutes standing above the ordinary courts, since the decision of such questions can be beyond the power of ordinary courts126.
The specific character of judicial authority as compared to the "political authorities" - the legislative and executive, is in its relative permanence and neutrality127, therefore the body of constitutional review is the main body of constitutional oversight. The Constitutional Court as the body of state authority, possessing all its characteristic features, nonetheless has a particular legal nature.
Firstly, it is a body of justice, specialized in deciding the constitutional and legal issues. Those are primarily the constitutional and legal disputes: the true core of those disputes is formed out of the interpretation and implementation of the Constitution, as well as the litigations in respect of jurisdictional disputes. In this regard, many scholars see the constitutional review just from the position of limitation of power and resolution of conflicts on constitutional powers128.
Secondly, the Constitutional Court ensures the supremacy and direct action of the Constitution on the whole territory of the state as applied to all subjects of law129. That is just the principal responsibility of the Constitutional Court, while for most state bodies the observance and respect of the Constitution is sufficient.
The unique character of the mission of the Constitutional Court is that it is the only body of state authority with a direct responsibility to subordinate the politics to law, the political actions and decisions to the constitutional-legal requirements and forms.
The role of the Constitutional Court in the political process is enormous130. Meanwhile, the Constitutional Court has to resolve exclusively the problems of law, and under no circumstances give preference to political expediency, try to evaluate actions of some specific people outside their legal forms131. The Constitutional Court is featured not only as an arbiter of political powers, but as a guarantor of existential rights of the social union organized into a state. Meanwhile, this function of the Constitutional Court is not ensuing from the will of some institute of power but rather is directly placed upon the Constitutional Court by law, by the supreme law of the state, the Constitution. The principal concept of the specialized institutes of constitutional review is that the Constitutional Court is instituted and becomes functional with the purpose of protecting the fundamental elements of the constitutional order, the fundamental human and civil rights and freedoms, ensuring the supremacy and direct action of the Constitution, i.e. the observance and provision of fundamental political and legal values proclaimed and guaranteed by the Constitution132.
Thus, in countries providing for a special constitutional jurisdiction, exercising the constitutional review ensues directly from the principles and standards of the Basic Law.
The Constitutional Court is called for to disallow the misuse of the state power, to permanently maintain a situation whereby only a limited power is possible.
It can be stated that the Constitutional Court is the basic body of state power, providing the limitation of the state power itself in favor of the principles of law.
It should be noted that the Constitutional Court, formed by the elected authority (the issue of sufficiency of this legitimizing basis for a body of this stature seems disputable), is not accountable or subordinated to it. In the particular case the Constitutional Court is the supreme constitutional body that has, in contrast to other higher constitutional bodies, none of the representative functions. It is an actual fact that even in most democratic countries, where a limitation itself of the parliamentary authority could be seen as impossible, like France, institutionalization is made of non-representative bodies endowed with the right of review (and in the case of preventive review often interference as well) of the legislative activity.
This seems to be one of the main reasons of the often unjustified criticism leveled at many Constitutional Courts. It seems to us therefore that bridging the enormous gap between the status and the continually increasing role of the Constitutional Courts and their legitimizing basis has become an exigency.
It is to be noted that if we deal with a phenomenon like constitutional review, it has to be considered that developing whatever standards when evaluating this phenomenon is not only devoid of perspective, it is also dangerous. Nothing, no dogmatic statements on separation of powers, people's sovereignty, no classical diagrams of judicial power should exert pressure upon an objective, multilateral study of the essence of constitutional review.
Inasmuch as the Constitutional Court implements the function of subordination to law of the political decisions, even if they are expressed in law, it is the Constitutional Court that stands guard to the underlying values and interests of society, ensuring a gradual withering away of those that impede the dynamic development of this society. The Constitutional Court implements the function of social stabilization providing guarantees of social and juristic conformity in the formation and application of the political power.
We think that the function of constitutional review is generated by the sphere of relations above the state, since it will register, qualitatively organize and transform into law the original will of the citizens expressed in the Constitution, including the will of members of society to the institution or change of the-state itself.
The Constitutional Court, in a certain meaning and to certain limits, makes law by determining the trends of development of the legislation, by creating precedents of interpreting the Constitution and the laws, by filling in the blanks in the Constitution itself133. For, the only legal act binding the Constitutional Court when examining and deciding cases is essentially only the Constitution, being a complex of the general principles of law and abstract standards which are objects of interpretation.
Interpreting the principles and standards of such a universal character and such elevated rank as constitutional, will in turn provide the Constitutional Court with the constitutive power, and lend its acts a constitutional-attributive character. Meanwhile, the association between the interpretation and constitutional review takes place within several dimensions. We deal here not only with the official interpretation of the constitutional provisions on the specific complaints of relevant subjects just on a particular issue, but also a mediated interpretation on all adopted decisions of the Constitutional Court134. We also share the opinion of H. Osmokesku, judge of the Constitutional Court of the Republic of Moldova, which reads that in interpreting the legal standards, it is necessary to apply all methods in the aggregate (grammatical, logical, historical, teleological, systemic), rather than in isolation135.
The society has the right to challenge the forms and contents of the state power, and the methods of their implementation, through the Constitutional Court as well. But the Constitutional Court with its decisions produces an effect upon the constitutional will formation and will determination of the citizens' union. In this regard, it would be more correct to register the definition of the concept "constitutional court" within the Constitution itself, as well as the principles of implementing the constitutional review, which is lacking in the Constitution of many countries136.
The activity of the Constitutional Court lends legal competence to constituting state power through the Constitution, it ensures its succession, prevents the erosion and atrophy, as well as inertia of the constitutional order which binds the society and the state, subordinating them to the unified constitutional principles of law, the latter being more substantive and legally binding and true than whatever current act of any specific authority. The Constitutional Court, without being the only guarantor of existence and realization of these principles, is nevertheless the supreme and final arbiter in this sphere. Through the Constitutional Court it is possible to challenge any act of any authority having a fundamental meaning, and using the court decision, any serious political action can be declared non-constitutional if it contravenes the principles of Law.
It has already been noted that the character itself of these principles, as well as a vast, practically unlimited right to their interpretation, lend the constitutive power to the Constitutional Court, the constitutive power of the primary order. In this respect, the constitutional review is neither legally nor de facto commensurable with common justice. It is a function of the highest order. The acts of the Constitutional Court will directly amend and expand (or contract) the boundaries of the constitutional-authoritative relationships, establish, develop or modify the constitutional-legal doctrine.
All other institutes of public authority (bodies of state authority and local self-government) are subordinated to the entire complex of legal acts. As a rule, the bodies of one branch do not have to right to nullify the acts by other branches. This limitation does not extend to the ordinary courts, though at first sight only, since in the countries having instituted the specialized constitutional review, the most important, constitutionally significant legal disputes are resolved only by the bodies of specialized constitutional review, i.e. in most countries of that group by the Constitutional Courts, therefore, the influence of ordinary courts upon the political process is insignificant.
In contrast with the executive and judicial powers having a responsibility to ensure the priority of law, i.e. the will of the legislator (they do not recognize the category of "illegal law"), the Constitutional Courts can adjudicate that the will of the legislator, as expressed in a law, has no legal character, i.e. the regulatory act or law does not ensue from the meaning or contents (spirit) or from the formal requirements (letter) of the Constitution and can recognize it as null and void.
We think that there is no eventual uncovering of the placement and role of the Constitutional Court within the system of state authority, when it is stated that, being part of the mechanism of state authority, the judicial constitutional review carries features inherent to each of the opposing powers, i.e., the process of constitutional-review activity includes the implementation of legislative, executive and judicial functions137.
The problem is essentially that the judicial constitutional review provides a functional equilibrium in the implementation of the constitutionally stated powers of the bodies of state authority, and thus, it lends an integral character to the system of constitutional review.
Thus, the Constitutional Court is the supreme constitutional body of the specialized constitutional review, exercising the judicial authority autonomously and independently in the form of constitutional judicial procedure aimed at constraining the public authority and providing a balance of power, the supremacy of natural law over positive law, Constitution over law, the principles of law over the political and administrative discernment. Attainment of those goals comprises the substance of activity of the Constitutional Court, i.e., the realization of constitutional review, thus uncovering the legal nature and intents as well as placement of the Constitutional Court within the mechanism of state authority.
As has already been noted, the system of constitutional review embraces quite a vast circle of state bodies (See: Diagram 7), to be noted among them are the following:
1. Specialized bodies of constitutional review - constitutional courts and quasi-judicial entities;
2. Non-specialized bodies of constitutional review:
To uncover the features of the bodies of specialized constitutional review (mostly Constitutional Courts), scrutiny should be made of the European (centralized, concentrated) model of constitutional review, since another type of approach would go beyond any one model and would deal with the differences in the models themselves of constitutional review. Our option was also prompted by the fact that in the American-model countries of constitutional review the ordinary courts are not either institutionally, or functionally, set aside as a specific system of constitutional review, with the decisions of specific issues of constitutional law being professional duties of the judge.
Thus, the original character of specialized bodies of constitutional review is manifested in the following:
1. In most countries the electorate has no direct connection with the recruitment of these bodies: the basis for their legitimization is the will of at least two branches of power - legislative and executive;
2. Admitted to the membership of these bodies are not only professional judges, but also other persons, including the ones who are not lawyers;
3. The specialized body of constitutional review, even if it is included into the judicial system, nevertheless, occupies in it an autonomous position;
4. In its status, the body of specialized constitutional review is one of the highest constitutional bodies: the basis of its organization and activities are regulated by the Constitution itself and by the constitutional or organic law;
5. The basic function of those bodies is constitutional review;
6. The basic form of its activity is constitutional trial (even the quasi-juridical entities of constitutional review act within the framework of special procedural rules);
7. Specialized bodies possess great autonomy in procedural issues (the Constitutional Court is considered by some law specialists as the "process host"). This autonomy, the strong procedural role of the Court is not inherent to the Courts in the American model, nor to the courts of general jurisdiction in the European system of constitutional review;
8. The jurisdiction of these bodies is extended to the institutes of the legislative, executive, and frequently also the judicial powers;
9. Belonging to them is exclusively the prerogative of taking the final decision, particularly in the sphere of reviewing the constitutionality of regulatory acts, since even the nullification act itself of a non-specialized constitutional review (e.g., nullification by the Parliament of the law by reason of its non-constitutionality) can become the object of the specialized constitutional review;
10. The decisions of those bodies have, as a rule, a weighty legal substantiation which will compensate the weakness of their legitimizing basis, meanwhile, independent of whether the bases of their decisions mandatory or not, the courts of general jurisdictions follow in the wake of the constitutional courts' argumentation;
11. The decisions of specialized bodies of constitutional review in most countries are final and binding for all. Their legal effect is equal to the legal effect of the Constitution itself.
Thus, the specialized bodies (Constitutional Courts, in most countries) are the principal institutes of constitutional review, in contrast to the non-specialized bodies, the enforcement of constitutional review for the latter being a sideline function ensuing from their basic activities. Realization itself of the constitutional review by non-specialized bodies has an optional, episodic character (except the cases when this responsibility is specially assigned to them by the specialized bodies themselves). Moreover, some non-specialized bodies of constitutional review act as bodies of constitutional supervision (Diagram 8), thus becoming subsidiary bodies of constitutional review.
Thus, in most countries
of the European model the head of state does not perform review over the
legal acts, however, his other powers (right of veto, signing of laws,
etc.) related to resolving the constitutional and legal issues, have a
supervisory character (it is to be noted that in the legal publications
of certain countries the presidential promulgation of laws is considered
a function of review, rather than of supervision, although this issue is
quite disputable). It is, however, quite certain that the monopoly of final
decision for the most part rests with the specialized bodies of constitutional
review. The system of constitutional review, as already noted, also embraces
state bodies, non-governmental organizations and citizens - subjects of
the right to appeal to the Constitutional Court. To our judgment, these
subjects of constitutional and legal relations are the subjects of constitutional
The system of subjects of constitutional review includes:
1. Bodies of public
- bodies of state authority or their structural subunits or parts of their composition endowed with autonomous rights:
- President (head) of State, supervising observance of the Constitution through the right of veto, appeal to the Constitutional Court, removal of officials, culpable in violations of the Constitution, etc.;
- the Parliament or a number of its members defined by law - as subjects of complaint to the Constitutional Court;
- the Constitutional Courts themselves, if they have the right to examine cases by their own initiative;
- the Government;
- courts of general jurisdiction as the subjects of complaint to the constitutional court;
- subject states;
- the ombudsman (human rights defender) or the prosecutor;
- bodies of local self-government;
2. Associations of natural persons as subjects of the right to complaint to the Constitutional Court:
The study of West-European experience shows that the placement and role of the Constitutional Court within the system of state authority is in harmony with the full-fledged system of values of constitutionally registered deterrents and counterbalances and with the guarantee of their application.
The study of the Constitutions of many states also shows that in many sections of the Constitutions defining the counterbalances and deterrents there are distinct definitions of the body having powers in the particular field, with the Constitutional Court.
Nearly all carriers of state authority, to the degree of their contact with the Constitution, also have contact with the Constitutional Court. The contact between the Constitutional Court and the Parliament is of a particularly multidimensional character. This manifests itself not only in the recruitment of the constitutional courts, determining the constitutionality of laws and parliamentary regulations, but also when examining the issues on separation of powers, resolving jurisdictional disputes, implementation of review on the forms of adoption of the legislative acts. In the latter case there is often a deficient understanding between a legislative body and the Constitutional Court, particularly in the cases when the Parliamentary Rules of procedure is not the object of a mandatory preventive review. In many countries of the world the object of constitutional review are the issues of parliamentary procedures of voting for the laws.
The texts of Constitutions in many countries mention the following 6 issues with regard to the parliamentary procedure of voting for laws:
It is to be noted that in most countries the Constitutions establish quorums for parliamentary sessions (this issue is equally undefined in the Constitutions of Azerbaijan, Great Britain, Ireland, Lithuania, Moldova, Turkmenistan, Ukraine, Finland, France, Sweden, Estonia).
Other issues making up the voting procedure proper, as a rule, are not constitutionally regulated.
The requirement for name voting is foreseen in the Constitutions of Belgium, Georgia, Luxembourg, USA, Japan.
The requirement to vote personally is foreseen in the Constitutions of Azerbaijan, Belarus, Bulgary, Spain, Kazakhstan, Ukraine, France, Croatia.
Absentee voting is mentioned in several countries. A direct prohibition of that is mentioned in the Constitutions of Spain ("Voting is done by senators and members of parliament personally and cannot be delegated to other persons") and Kazakhstan ("Absence of a member without good cause at meetings of Houses and their bodies over 3 times, as well as vote transference will entail sanctions to the member as established by law"). Article 67 of the Constitution of Armenia provides that a member of the National Assembly will have his tenure terminated after an absence from half of the voting sessions within one session without good reason.
The Constitution of France permits to vote on absentee ballot in exclusive cases, restricting the number of delegated mandates ("The organic law can permit as an exception a delegation of vote. In this case no one can be delegated with more than one mandate")139.
The Constitution of Turkey permits delegation of vote only to the ministers, elected as members of Parliament, and also restricts the number of mandates delegated ("Members of the Council of Ministers can delegate to a minister the right to vote on their behalf at sessions of the Great National Assembly of Turkey that they cannot attend. However, a minister cannot cast more than two votes, including his own")140.
Bodies of the judicial constitutional review, as a rule tend to avoid interfering into the issues regulated by the internal acts of parliaments.
Of great interest are the issues associated with parliamentary elections. Article 100 (clause 3) of the Constitution of the Republic of Armenia provides that the Constitutional Court resolves the disputes concerning referendum and the results of elections of the Republic's President and members of the Parliament. The disputes on parliamentary elections have yet to be examined by the Constitutional Court, however, other countries' experience shows the placement and role of the Constitutional Court in this regard to be awaiting further clarification. For example, when examining the case on parliamentary elections, the Constitutional Court of the Republic of Slovakia issued a ruling on October 27, 1994 to the effect that the appeals for election results are legally valid only if the cited electoral law violations affect the elections directly. The ruling nullifying the election results of one applicant contravenes the constitutional guarantees of the equal, universal and direct voting rights and secret voting.
The essence of the matter is that on September 30 and October 1, 1994, the Slovak Republic held election to the National Council (the Parliament) of the Slovak Republic, and on October 11, 1994, the Constitutional Court received an appeal from the political party "Movement for Democratic Slovakia", that had won the election. Adjoined to this appeal was another party, the Slovak National Party.
The Constitutional Court is competent to take a decision, pursuant to Article 129.2 of the Slovakian Constitution, on whether the election to the National Council were conducted in accordance with the Constitution and Law. The appeals on election, according to the Law on the Constitutional Court (Law # 38, 1993), can be of two types: one: appeals submitted by persons indicating violations of their rights as resulting from elections; two: appeals submitted by persons claiming that their rights were violated as a result of electoral fraud. Pursuant to the Law # 3811993, the Constitutional Court can: a) invalidate the election; b) recognize the election results as null and void; c) nullify the decision of the electoral commission and announce as elected the candidate who could otherwise have been elected following the rules, d) repel the appeal.
The appeal in question concerned the election results and included a solicitation to recall the representatives elected using the listings of the political party "Democratic Union". That appeal was based upon the argument that the party "Democratic Union" had failed to collect 10,000 signatures needed for it to be registered in the list of parties taking part in the election, thus making its participation contradictory to the electoral law.
The Constitutional Court ruled that the electoral law violation in question could not serve as a basis for satisfaction of this appeal, meaning that this type of appeal could be examined only in cases with the violation of law should directly affect the electoral results. Another important argument in the motivation of Constitutional Court decision was that the ruling nullifying the electoral results with regard to one participant of this election, would contravene the Constitution, the right of citizens to take part in equal, direct and general election with secret ballot. This right would have been denied a group of citizens if their right to take part in the elections should remain unrealized while the same right of other citizens should be realized. To provide the equal opportunity in carrying out the elections, the Constitutional Court is in its own right to nullify the votes given to all political parties and to nullify the whole election or, on the contrary, to refuse to invalidate the election results.
This example also clearly shows that with regard to election the constitutional review should not overstep the boundaries of defining the constitutionality of a regulatory act, lying in the basis of the election organization and passage, nor the frame of accord between the election laws and outcomes.
While examining the issues of election, often disputes occur with regard to quotas established for political parties. Similar quotas exist in many countries (10% - Turkey; 8% - Azerbaijan; 7% - Poland; 5% Armenia, Hungary, Germany, Georgia, Lithuania, Slovakia, the Czech Republic, Estonia; 4% - Australia, Austria, Bulgary, Italy, Latvia, Moldova, Ukraine, Czechoslovakia (1990), Sweden; 3% - Greece, Spain, Romania, Croatia; 2% - Denmark; 1 % - Israel).
Neither the electoral threshold, nor its specific indicators in most of these countries are established by the Constitutions, commonly defining only the type of electoral system, but rather by the electoral law. In particular, among the countries named, this threshold is constitutionally established only in Georgia and Sweden. Part 2 of Article 50 of the Georgian Constdution reads: "2. Mandates of the Members of the Parliament are distributed only among the political associations and electoral blocks that in proportional-system election will receive at least five percent votes of the electorate that had taken part in the election".
Paragraph 7, Chapter 3 of the Form of Govemance of the Kingdom of Sweden reads: "Only the party that received at least four percent of the votes statewide has the right to take part in mandate distributionů"141.
Some other countries have a direct constitutional interdiction to establishing an electoral threshold. Thus, a fragment of Article 155 of the Constitution of the Republic of Portugal reads: The Law can set no limit to the number of mandates ensued from the number of votes by establishing whatever minimum percentage of votes to be obtained nationwide142.
In cases involving the constitutionality of electoral threshold, the Constitutional Courts confirmed the principle of constitutionality of the electoral threshold, however, in one case its measure was recognized as excessive.
The Federal Constitutional Court of Germany (05. 04. 1952) confirmed the constitutionality of the 5-percent electoral threshold, but to ensure the integrity of the electoral system, recognized it unconstitutional to be set at 7.5 percent at the election to the Landtag of Schieswig-Holstein Laender. The Court noted in particular: "if whatever Laender sets a threshold above 5 percent, then the political party will gain importance for the Bundestag but not for the Landstag."
In a later ruling (25. 05. 1955) on the constitutionality of the 5-percent federal electoral threshold, the same Court only gave a reference to an earlier ruling.
The Constitutional Courts of Ukraine (28. 02. 1998) and the Czech Republic (02. 04. 1997) confirmed the constitutionality of the 4-percent and 5-percent thresholds, respectively.
The Constitutional Court of Ukraine restricted itself to a very brief motivation, however it drew attention of the authors of the appeal, the Members of the Supreme Rada, to the fact that denying the political parties having less than 4 percent votes, the right to distribute mandates is a problem of political expediency and should be done by the Supreme Rada itself."
Meanwhile, the Court of the Czech Republic has touched, though hypothetically, upon the issue of a possible unconstitutionality of this threshold, had it been set at another 'height', thus confirming that raising the threshold cannot be unlimited, e.g., a 10-percent threshold can be recognized as a standard creating a threat to the democratic substance of the proportional system.
Meanwhile, in the opinion of the Court of the Czech Republic, "the current threshold has a relative rather than an absolute value, depending upon the actual correlation of political forces in the country and upon the structure of their differentiation". Therefore, the standard on the electoral threshold "is in agreement with the Constitution with regard to the need for the integrity and stability of the political sphere"143.
In view of the examples cited, the constitutionality of an electoral process cannot be ensured without a constitutional review. However, on the other hand, a clear provision should be made in this issue of the functional role of Constitutional Courts and of ordinary courts.
It was introduced by us, that not only in the particular issue, but in the whole of the constitutional review, of special interest are the relationships between the Constitutional Court and the courts of general jurisdiction.
The experience of other countries as well as our research (the mentioned examples) shows the three types of approaches (See: Diagram 9):
- one (typical for Germany, Austria, Italy, Spain), when the issue of establishing constitutionality of the regulatory acts is an exclusive privilege of the Constitutional Court. Other courts in this regard act as subjects of appeal;
- two, when all courts implement the constitutional review, but in case of complaining or protesting to their rulings, the final word belongs to the Constitutional Court (a classical example is Portugal);
- three, when the body of constitutional review embodied by the Constitutional Court has none whatsoever functional relationships with other institutes of the judicial system. This exclusive example is currently Armenia, which has yet to be justified.
To be noted is the fact that in many countries a direct part in recruitment of the Constitutional Courts is taken by other institutes of judicial power (Italy, Spain, Turkey, Georgia, etc.).
In Austria, the Constitutional Court accepts claims on constitutionality of laws pursuant to Art. 140 of the Constitution, at the presentation of the Administrative or the Supreme Court, or else at the presentation of the court that had been empowered to consider the case as the court of appeals. If however this law is subject to be applied in the Constitutional Court with regard to a legal dispute, then the Constitutional Court can accept this law for examination at its own initiative.
In Germany, the Federal Constitutional Court can exercise serious indirect review functions with regard to the whole judicial system. Its power embraces issues of removing the judges, even those of the Federal Laenders.
Art. 163 of the Constitution of Spain states that if a judicial body regards some regulation having force of law and applied in a particular case, can contravene the Constitution, then, without suspending its action, application is made to the Constitutional Court for this regulation to be reviewed (Article 163). If a judicial organ considers, in some action, that a regulation with the status of law which is applicable thereto and upon the validity of which the judgement depends, may be contrary to the Constitution, it may bring the matter before the Constitutional Court in the cases, manner, and with the consequences which the law establishes, which in no case shall be suspensive.
Art. 152 of the Turkish Constitution states: If a court which is trying a case finds that the law or the decree having force of law to be applied is unconstitutional, or if it is convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, it shall postpone the consideration of the case until the Constitutional Court decides on this issue.
If the court is not convinced of the seriousness of the claim of unconstitutionality, such a claim together with the main judgement shall be decided upon by the competent authority of appeal.
One essential feature of the Constitutional review in Portugal is that functioning therein is the so-called "mixed-type system", i.e. the power to resolve the constitutionality of regulations in specific cases also belongs to all courts of general jurisdiction, while their rulings on those issues can be appealed to the Constitutional Court. The appellant to an ordinary court can demand the transference of the case on the constitutionality to be decided, to the Constitutional Court. The Prosecutor's office has two permanent representatives in Court. If a specific legal regulation on specific cases is recognized as unconstitutional thrice, then the Prosecutor's representatives in the Court can initiate a procedure of abstract review. In this case the Court ruling has a general character, and the validity of the particular regulation is terminated.
In many countries, the system of individual complaints operates in the following way: the right of appeal to the Constitutional Court is acquired by the person only when other options within the state have been exhausted. In this regard, the constitutional courts and the ordinary courts also have functional links.
The problem is that even in cases when the Constitutional Court is not regarded as a body of the judicial system, all the same, its independent activity is directly associated with other courts, particularly on the issues of concrete review and protection of human rights. We agree to the position of Zh. 1. Ovsepian, emphasizing that "the Constitutional Courts should be related to the judicial authority independent on where they are mentioned in the constitutional texts"144. Meanwhile, we think that the discussions of this kind on whether the Constitutional Court is a body of judicial authority oftentimes seem fruitless and artificial. The major question is whether there is an established system in the country of the constitutional review that could at least resolve three problems: to ensure the supremacy of the Constitution and the constitutionality of regulatory acts; to resolve the dispute of the bodies of authority in respect of jurisdictional disputes; to stand up for the protection of the constitutional human rights and freedoms while ensuring the integrity of the system and creating no stalemate situations. All other questions are derivative. The crucial idea is to develop a clearly defined institutional system for resolving the three groups of assignments thus noted. The specific bodies and the way that is going to be done is a second-order issue (not second in importance, however). Meanwhile, the international experience shows that those issues are most effectively resolved by the constitutional courts, being specialized bodies of judicial authority.
Development of judicial constitutional review, particularly in the countries with a federal state structure will also result in the ordinary courts in the adapting to the function of the Constitutional Court in the subject states145. If this development can be considered normal and facilitating the formation of a more flexible system of constitutional review, then, to our mind, the process is irrational when the constitutional courts assume the functions of the ordinary courts.
It is often correctly underscored that the Constitutional Court, protecting from unconstitutional law, is a body, in contrast to other courts, that undertakes the checking of standards only, i.e. the review of regulatory prescriptions for their agreement with the Constitution146. Besides, in the legislature it is necessary to clearly define the place and role of ordinary courts so as to nullify the regulatory acts that are not objects of review for the Constitutional Court147.
Let's try to summarize also, what are the general approaches and features in providing an independent and unbiased operation of the whole system of judiciary constitutional oversight?
First on the general approaches. They can be referred to the following:
- in all countries the Constitution and laws state that the bodies of constitutional review are independent and subjected to the Constitution only, while their activity is regulated by a special law;
- all members of the entity of the judicial constitutional review are appointed or elected by different branches of power and take an oath before assuming office;
- they enjoy immunity, can be relieved from duty only as provided by law, while at the time of election (nomination) they have to meet certain requirements;
- for members of the bodies of judicial constitutional review, the Constitution provides a lengthier period than for the representatives of other branches of power who recruit this body. As an additional guarantee, many countries also use the principle of irremovability;
- a member of the entity of constitutional review cannot be a member of any party, go in for political activity (even, to some extent, public activity), do paid work, occupy a seat in parliament or in the system of executive power;
- as a rule, a ruling of this body is final and mainly is not subject to review;
- when implementing abstract review, the Constitution provides such a set of appealing subject that the activity of the Court should not fall under dependence of any one branch of power. In case of a mandatory review, the law clearly defines the set of objects and the procedure of review;
- the bodies of constitutional review enjoy the law-defined autonomous position in their work on organizing the court activities, management of finances, management of personnel;
- an important factor in ensuring the independence is provision of openness of activities.
Evaluated herein are examples when the Constitutional Court itself becomes subject to constitutional review, it has the right of legislative initiative, while the object of preliminary mandatory review is the constitutional amendments. In some countries, independence of the whole judicial system is ensured by the Constitutional Court assuming certain review functions with regard to the latter.
The independence of constitutional review is in need of a continual support and sustainable guarantees. That regards not only the mechanisms of establishment and operation of the system of constitutional review itself. Of fundamental importance is also ' the system of values and the level of democratization of the society, the functional balancing of individual branches of authority, the type of social environment and the public demand in legal support of the supremacy of law, the visibility and maturity of the civil society.