Bucharest; 8-10 June 1994 CDL-STD(1994)010 Or. Engl. Science and technique of democracy No.10 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) The role of the constitutional court in the consolidation of the rule of law Bucharest, 8-10 June 1994 Proceedings The role of the constitutional court in the consolidation of the rule of law Proceedings of the UniDem Seminar organised in Bucharest on 8-10 June 1994 in co-operation with the Romanian Constitutional Court with the support of the Ministry of Foreign Affairs of Romania. The Seminar gratefully acknowledges the assistance by the Japan Foundation and the Office for Democratic Institutions and Human Rights of the CSCE. TABLE OF CONTENTS Opening session ............................................................................................. 2 A. Introductory statement by Ion ILIESCU, President of Romania ........................................ 3 B. Introductory statement by Professor Antonio LA PERGOLA, President of the European Commission for Democracy through Law............................................................................... 4 C. Introductory statement by Mr Vasile GIONEA, President of the Romanian Constitutional Court ..................................................................................................................................... 11 The role and competences of the constitutional court ....................................... 15 A. The role and competences of the constitutional court - Report by Professor Luis LOPEZ GUERRA, Spain................................................................................................................... 16 B. The role and competences of the constitutional court - Report by Prof. Florin VASILESCU, Judge at the Romanian Constitutional Court .................................................. 27 Summary of the Discussion................................................................................................... 39 Organisation, operation and practice of the constitutional court ........................ 42 A The constitutional court of Italy - the guarantee for its independency - Report by Prof. Antonio BALDASSARRE, Judge at the Italian Constitutional Court.................................... 43 B. Organisation, operation and practice of the constitutional court - Report by Prof. Victor Dan ZLĂTESCU, Judge at the Romanian Constitutional Court ........................................... 49 Summary of the Discussion................................................................................................... 62 Decisions of the constitutional court and their effects ...................................... 64 A. Decisions of the constitutional court and their effects - Report by Prof. Helmut STEINBERGER, former judge at the German Constitutional Court ..................................... 65 B. Decisions of the constitutional court and their effects - Report by Prof. Vasile GIONEA, Member of the Academy, President of the Romanian Constitutional Court........................... 91 Summary of the Discussion................................................................................................... 98 The relations of the constitutional court with the ordinary courts and other public authorities ...................................................................................................100 A. The relations of the constitutional court with the ordinary courts and other public authorities - Report by Prof. Michel MELCHIOR, President of the Belgian Court of Arbitration .......................................................................................................................... 101 B. The relations of the constitutional court with the ordinary courts and other public authorities - Report by Prof. Antonie IORGOVAN and Prof. Miha CONSTANTINESCU, Judges at the Romanian Constitutional Court ...................................................................... 119 Summary of the Discussion................................................................................................. 124 Closing session............................................................................................125 Closing speech by Mr Robert BADINTER, President of the French Constitutional Council ............................................................................................................................................ 126 List of participants .......................................................................................127 Opening session Chaired by Professor Antonio LA PERGOLA Opening statements by a. Mr Ion ILIESCU, President of Romania b. Professor Antonio LA PERGOLA, President of the European Commission for Democracy through Law c. Mr Vasile GIONEA, President of the Romanian Constitutional Court A. Introductory statement by Ion ILIESCU, President of Romania Mr Ion ILIESCU, President of Romania, welcomed the participants in the Seminar and thanked those who had contributed to its organisation. Since 1989 profound changes had taken place in Romania and the most important one of them was the adoption of the new Constitution. He was grateful to the foreign specialists who had assisted in the drawing up of the Constitution, not least to the members of the Venice Commission who had participated in an exchange of views with the Constitutional Commission on the main principles to be incorporated in the Constitution. There had been a wide ranging public debate and Parliament had examined each article of the Constitution in detail. One of the topics discussed already then was the role of the Constitutional Court. The Constitutional Court of Romania was still a recent institution with only two years of experience but this experience was already interesting and should provide a useful starting point for the debates. B. Introductory statement by Professor Antonio LA PERGOLA, President of the European Commission for Democracy through Law 1. It is a privilege to address this distinguished audience. Our gathering is being honoured by the presence of the Head of State and of the Chief Justice of the Constitutional Court of our host country. Let me convey to both of them the heartfelt gratitude of the Venice Commission. Let me thank warmly all our Romanian friends for their generous hospitality. Romania is now a member of the Council of Europe. The stage is set in this magnificent building for a debate that has aroused the interest of judges, scholars and lawyers from all over Europe. Democracy is spreading across our continent. Courts as guardians of the constitution have appeared or are springing to life in almost every country arisen from the ashes of oppressive dictatorship. The progress of constitutional justice, in one form or another, runs like a connecting thread through our common history. Hans Kelsen conceived the Austrian Constitutional Court in 1920. That was an intense but troubled and transient season of institutional engineering. Other sister courts were established soon after World War II. The remaining ones have been created at various stages subsequently. First with lasting peace and now with the growing number of democracies, constitutional justice has attained its present importance and diffusion. This is more than an tendency. It is an established novel form of constitutionalism. Once the constitution is laid down as supreme law, its observance needs to be guaranteed. And it is. Kelsen's opinion that there should be an appropriate judicial body to perform the function has been tested by experience and has proven sound. This is by itself a striking fact, a sign of our times, and one that calls for our reflection. Bucharest is the place where our minds can meet. We share the awareness that, after the breakdown of ideological walls, a fruitful dialogue must begin between old and new courts. We need an all- round view of constitutional justice, mature and emergent. Each court has of course its own problems. All of them, though, administer the values which make us rediscover Europe as the unbroken area of one and the same civilisation. My opening remarks are not meant to deal with any of the topics reserved for the distinguished rapporteurs. From all of them I have no doubt much to learn. I shall simply attempt to set out the reasons why constitutional justice lies at the very heart of the endeavours in which the Venice Commission is engaged: the series of UniDem seminars and Conferences of which this is a part, the Bulletin on Constitutional Case-Law and the report of Models of Constitutional Jurisdiction by our friend Professor Steinberger. This report is available here in English, French and Russian. I am convinced that the reports at this seminar as well as the discussions will constitute a further important contribution not only to the scientific analysis of constitutional jurisdiction but also to its development in the practice of the new democracies. 2. Constitutional justice, let me explain, is a central concern of the Venice Commission because it regards democracy and law at the same time. It affects, and I am tempted to say it inspires, the actual working of the constitution as a frame of government and a bill of rights. There is an interaction here between constitutional justice and the institutional context in which it is put in place. Constitutional justice is established to guarantee democracy as a political system with its underlying worlds of values. It is also true, however, that to perform its proper role it requires, no less