Unison in Constitutional Interpretation: Doctrinal Developments by the Lithuanian and Moldovan Constitutional Courts

ORIGINAL ARTICLE Unison in Constitutional Interpretation: Doctrinal Developments by the Lithuanian and Moldovan Constitutional Courts Jednomyślność w Interpretacji Konstytucyjnej: Doktrynalny Rozwój poczyniony przez litewskie Toma Birmontiene i mołdawskie Trybunały Konstytucyjne Professor of Mykolas Romeris University, Vilnius, former judge of 15.09.2016 28.11.2016 30.12.2016 the Constitutional Court of Lithuania Article history: Received: Accepted: Published: (2005-2014). Abstract: This article is devoted to the analysis of some decisions of the Constitutional Courts of Lithuania and of the Republic of Moldova, which, according to the author of this article, are indicative of a “constitutional unison”, as the courts, in dealing with similar issues, delivered comparable judgments at times knowing that similar decisions have been rendered by the other court and, at times, pos- sibly, without being fully aware of the existence of similar rationales by the other court, since certain of the aforementioned decisions are separated by more than a decade. The reasons determining this unison, its consistency as well as other issues represent the object of the present research, which, due to its limited scope, can be considered a lead-in to a broader analysis of these matters. Keywords: constitutional court, constitutional interpretation, form of governance, constitutional jurisprudence, constitutional borrowing, constitutional conflicts Streszczenie: Artykuł poświęcony jest analizie niektórych wyroków Litewskich i Mołdawskich Try- bunałów Konstytucyjnych, które zdaniem autora niniejszego artykułu, wskazują na “konstytucyjną jednomyślność”, ponieważ sądy w czasie rozpatrywania podobnych spraw wydały porównywalne wyroki. Niekiedy wiedząc, że podobne orze- 47 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE Unison in Constitutional Interpretation... czenia zostały wydane przez inne sądy, a czasem, być może, nie będąc w pełni świadomym istnienia podobnych orzeczeń wydanych przez inne sądy, ponieważ niektóre z wyżej wymienionych wyroków dzieli więcej niż dekada. Powody deter- minujące tą jednomyślność, spójności, a także inne kwestie stanowią przedmiot niniejszego badania, które ze względu na ograniczony zakres, mogą być uznane za wprowadzenie do szerszej analizy. Słowa kluczowe: Trybunał Konstytucyjny, interpretacja konstytucyjna, forma rządzenia, orzecz- nictwo konstytucyjne, konflikty konstytucyjne Reasons determining the similarity death penalty, irrespective of the fact that it drew of some decisions in constitutional certain criticism due to its argumentation2, became jurisprudences. a model for other constitutional courts, such as the Lithuanian Constitutional Court3 or South Af- rican Constitutional Court,4 in rendering their deci- At the end of the 20th century and the beginning of sions on the non-compliance of the death penalty the 21st century, after regaining their statehood or with constitutional provisions. restoring the democratic setup of the state and its consolidation in their newly adopted constitutions, Up to now cooperation among constitutional Eastern and Central European states witnessed courts has gained important institutional dimen- the spread of constitutional review, and therefore sions. In the realm of international cooperation cooperation between constitutional justice institu- involving various constitutional courts, a sig- tions became indispensable. Starting their activity nificant role is played by the Venice Commission as novices and lacking appropriate experience, (European Commission for Democracy through newly established constitutional courts studied Law) which promotes cooperation among con- the case law of the already established constitu- stitutional courts and similar institutions. Such tional control institutions, looked at and learned overwhelming international organisations as the from the activity and decisions of each other, es- World Conference on Constitutional Justice, the pecially due to the fact that some issues related to the development of statehood were common; in 2The criticism of the arguments of the judgment of the Constitu- dealing with these issues, the experience of other tional Court of Hungary was not against the ruling itself, it dis- constitutional courts served as a particularly valu- cusses the way of constitutional interpretation. Se: Janos Kis, Constitutional Democracy, CEU Press. Budapest, New York. able additional source of constitutional law. One of 2003, p. 253-259. Gábor Attila Tóth, Túl a szövegen: Értekezés a the earliest judgments of the Constitutional Court magyar alkotmányról (Beyond the Text: A Treatise on the Consti- tution), Osiris, Budapest, 2009, pp 51-53. of Hungary1 concerning the constitutionality of the 3The ruling of the Constitutional Court of Lithuania of 9 December 1998. Online access: www.lrkt.lt 1Decision of the Constitutional Court of Hungary no. 23/1990 (X. 31.) on the abolition of death penalty (http://www.mkab.hu/letol- 4S. v Makwanyane and Another (CCT3/94) [1995] ZACC 3; (Judg- tesek/en_ 0023_1990.pdf) ment of the Constitutional Court of South Africa of June 6, 1995). 48 Pol Law Rev, 2016 Vol. 2 (2), p. 47-59 DOI: 10.5604/24509841.1230279 Unison in Constitutional Interpretation... ORIGINAL ARTICLE European Conference of European Constitutional denomination, at the core of this phenomenon Courts, the Association of Constitutional Justice lies the aim to make use of the case law for- of the Baltic and Black Sea Regions and other mulated by another court in cases requiring organisations were formed which are devoted to the resolving of complicated constitutional re- the examination of the activity of constitutional view issues. The area of constitutional rights courts and of the decisions adopted thereby. features even greater commonness resulting from the law of the European Convention on If we leaf the pages of the constitutions of Human Rights (hereinafter referred to as the democratic states, we will find a great deal of Convention law) and the activity of and prec- commonness; this is determined by the es- edents formulated by the European Court of sence of democratic states, founded on re- Human Rights (hereinafter referred to as the Cooperation among constitutional courts has gained important institutional dimensions. spect for human rights, as consolidated in ECtHR). The globalisation of law, unification of their respective provisions, and by the consti- different fields of law, influence of international tutional principles of establishment, separation treaties and EU law, including the activity of and balancing of the branches of state power. the ECtHR, determine the courts, when faced The principles enshrined in constitutions with with similar constitutional review matters, to regard to the establishment of constitutional deliver the corresponding decisions. This is control institutions, their competences and evident not only in relation to the ordinary law. functioning also have plenty in common. Since Precedents formulated by the ECtHR bear par- constitutional law provides the rules to formu- ticular significance; it is not a rare occurrence late the key legal principles that are universally that they determine a situation where the deci- understood and recognised in democratic sions of constitutional courts are based on the states, such as rule of law, separation of state principles elaborated by the ECtHR and, thus, powers, independence of courts and other inevitably lead to the proximity or similarity of principles, their interpretation in constitutional jurisprudences.6 However, the doctrine of the jurisprudences unavoidably entails doctrinal margin of appreciation makes it possible for similarity, or even uniformity. In scholarly con- the individuality of national constitutional law stitutional doctrine,5 similarity in judicial deci- to find its expression even in such decisions. sions or in constitutional doctrines is identified as legal borrowing, constitutional implanting, 6The influence of Convention law and EU law on the constitutional etc. Despite the existing differences in their jurisprudence is widely analyzed in general and national reports of the XVIth Congress of the European Constitutional Courts. See: C. Grabenwater The co-operation of Constitutional Courts in 5See : Vlad Perju. Constitutional Transplants, Borrowing and Europe – Current Situation and Perspectives. General report and Migrations, in Oxford Handbook of Comparative Constitutional Outline of main Issues. XVI th Congress of the Conference of Eu- Law, M. Rosenfeld and A. Sajo (ed), Oxford: Oxford University ropean Constitutional Courts. The Cooperation of Constitutional Press, 2012, p. 1304-1327. Courts in Europe, Volume I, Verlag Osterreich, 2014, p. 35-62. 49 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE Unison in Constitutional Interpretation... Constitutional courts deal not only with purely scope of their implementation; ultimately, the legal but also with legal-political issues. The principles inspired by the Convention law, which constitutional setup of states does not avoid overlap with the criteria entrenched in the consti- certain specificity that is characteristic to par- tutions, are understood as universal and uniform, ticular states or small groups or states. Thus, for and precedents developed by the ECtHR are re- instance, any typology of forms of government garded as sources of national constitutional law. in the states inevitably contains exceptions that are typical to a particular state or several particu-

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