Constitutional Courts Versus Supreme Courts

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Constitutional courts versus supreme courts

Lech Garlicki* Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 Constitutional courts exist in most of the civil law countries of Westem Europe, and in almost all the new democracies in Eastem Europe; even France has developed its Conseil Constitutionnel into a genuine constitutional jurisdiction. While their emergence may be regarded as one of the most successful improvements on traditional European concepts of democracy and the rule of law, it has inevitably given rise to questions about the distribution of power at the supreme judicial level. As constitutional law has come to permeate the entire structure of the legal system, it has become impossible to maintain a ﬁ rm delimitation between the functions of the constitutional court and those of ordinary courts. This article looks at various conﬂ icts arising between the higher courts of Germany, Italy, Poland, and France, and concludes that, in both positive and negative lawmaking, certain tensions are bound to exist as a necessary component of centralized judicial review.

1 . The Kelsenian model: Parallel supreme jurisdictions

1.1 The model The centralized Kelsenian system of judicial review is built on two basic assu- mptions. It concentrates the power of constitutional review within a single judicial body, typically called a constitutional court, and it situates that court outside the traditional structure of the judicial branch. While this system emerged more than a century after the United States’ system of diffused review, it has developed — particularly in Europe — into a widely accepted version of constitutional protection and control.1 Today, constitutional courts exist in most of the countries of Western Europe that have civil law legal systems, with the Netherlands and the Nordic countries the major exceptions. Constitutional

*Judge of the European Court of Human Rights; former judge of the Constitutional Tribunal of Poland. Email: [email protected]

1 Louis Favoreu, Constitutional Review in Europe, in CONSTITUTIONALISM AND RIGHTS 46 (Louis Henkin & Albert J. Rosenthal, eds., Columbia Univ. Press 1989). In this context, Favoreu warns against too hasty generalizations and recalls the famous statement of Hans Kelsen: “[i]t is impossible … to propose a uniform solution for all possible constitutions: constitutional review will have to be organized according to the speciﬁ c characteristics of each of them.” Id., at 51.

© The Author 2007. Oxford University Press and New York University School of Law. 44 All rights reserved. For Permissions, please email: [email protected] I•CON, Volume 5, Number 1, 2007, pp. 44–68 doi:10.1093/icon/mol044 Garlicki | Constitutional courts versus supreme courts 45 courts also exist in almost all the new democracies in Eastern Europe, with the exception of Estonia.2 Even France, traditionally reluctant to accept any form of judicial review of legislation, has developed its Conseil Constitutionnel into a genuine constitutional jurisdiction.3 It is not necessary in this article to discuss why the European countries were unable or unwilling to adopt the United States model of judicial review. As Mauro Cappelletti has observed, 4 the main reasons lie in the profound differences in the political and constitutional culture on both sides of the Atlantic Ocean. The Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 centralized system of judicial review corresponds better to the European understanding of separation of powers, to the civil law approach to the role of judicial precedent, and, last but not least, to the authority of the traditional civil law courts and the psychology of their judges. 5 Additionally, in many of those European countries in which the judicial review was adopted as one of the democratizing measures following a period of authoritarian rule, the existing courts were unable to offer adequate guarantees of structural independence and intellectual assertiveness. Thus, the emergence of a separate constitutional court may be regarded as one of the most typical features of Continental constitutionalism. It may also be regarded as one of the most successful improvements on the traditional European, parliament-oriented concepts of democracy and rule of law. It is no wonder that countries elsewhere in the world, particularly in Latin America, also became attracted to the Kelsenian model of judicial review. However, every success has its price. Centralized in a newly established constitutional court, judicial review usually was more responsive to ideas that had already taken root in democratic countries. At the same time, however, the new constitutional courts had to ﬁ nd their place within the judicial structures of their own countries. It is a characteristic of the tradition of almost all civil law countries that there are at least two parallel supreme courts: one for civil and criminal cases and one for administrative cases. Constitutional courts entered the game as another, new partner. Inevitably, questions emerged about how

2 See, e.g., LA JUSTICE CONSTITUTIONNELLE EN EUROPE CENTRALE [CONSTITUTIONAL JUSTICE IN CENTRAL EUROPE] [Marc Verdussen ed., Emile Bruylant 1997]; HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL J USTICE IN POST-COMMUNIST EUROPE (Chicago Univ. Press 2002); CONSTITUTIONAL JUSTICE, EAST AND WEST: DEMOCRATIC L EGITIMACY AND CONSTITUTIONAL COURTS IN POST-COMMUNIST EUROPE IN A COMPARATIVE PERSPEC- TIVE (Wojciech Sadurski ed., Kluwer 2002).

3 France is the only European country in which constitutional adjudication takes the form, almost exclusively, of a preventive review. Except for the disputes related to the distribution of lawmaking competences between the parliament and the cabinet (FR. CONST. art. 37, sec. 2), the Conseil Constitutionnel only has jurisdiction to review a statute before it has been promulgated.

4 MAURO CAPPELLETTI & WILLIAM COHEN, COMPARATIVE CONSTITUTIONAL LAW 76–83 (Bobbs-Merrill 1979); Favoreu, supra note 1, at 44–46.

5 But see ALAN R. BREWER-CARIAS, JUDICIAL REVIEW IN COMPARATIVE LAW 128–131 (Cambridge Univ. Press 1989). 46 I•CON January 2007 Vol. 5: 44 judicial power should be distributed between the old and the new courts. Not surprisingly, it soon became clear that it would be very difﬁ cult to develop a commonly accepted model of cohabitation at the supreme judicial level.

1.2 . Delimitation of jurisdictions The general idea of delimitation appears relatively simple. The resolution of all cases and controversies of a constitutional dimension should be monopolized within the constitutional court, whereas the resolution of all cases and contro- Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 versies involving the application of ordinary legislation (and, in particular, of the different “ codes ” ) should belong to the exclusive province of the ordinary courts (and, ultimately, to the supreme court). This seemed to be Kelsen’s initial idea. The fi rst version of the 1920 constitution of Austria limited the powers of the constitutional court to the abstract review of legislation6 and did not provide for any direct links between the judicial application of statutes and the jurisdiction of the constitutional court. However, within a decade a procedure for the incidental review of statutes by the constitutional court was introduced in Austria.7 Since then, different combinations of abstract and incidental review of statutes have become a common feature of all the constitutional courts gradually emerging in Europe, the French Conseil Constitutionnel being the only exception. But the most radical departure from the idea of the separation of jurisdictions emerges with the procedures for constitutional complaint ( Verfassungsbeschwerde or amparo ), introduced, at fi rst, in Austria (albeit in a limited form) and later adopted (in a full version) in Germany, in Spain, and in several of the new democracies of Central and Eastern Europe. 8 Both procedures — incidental review and the constitutional complaint — modifi ed the idea of the separation of judicial functions in this way: they invite the constitutional courts to participate in the adjudication of individual cases by ordinary jurisdictions, either by resolving preliminary questions of the constitutionality of statutes or by reviewing the constitutionality of fi nal judicial decisions.

6 In this procedure, the right to bring the case before the constitutional court is reserved for the highest state bodies and ofﬁ cials (the president of the republic, the cabinet, the ombudsman), groups of members of parliament (i.e., parliamentary opposition), and similar bodies. The constitutionality of a statute is examined in abstracto, not in the context of any actual case.

7 This procedure is based on referrals of so-called constitutional questions by ordinary courts to the constitutional court. In most systems, if an ordinary court ﬁ nds that a statutory provision that it has to apply in a concrete case is unconstitutional, it must refer the question of constitutionality.

8 This is the only procedure allowing an individual access to the constitutional court. A person who already has lost his or her case before ordinary courts can complain before the constitutional court that their constitutional rights have been violated. In some systems (e.g., Poland), a complaint can only be directed against the legal rule that determined the judicial or administrative ruling in the case. In other systems (e.g., Germany and Spain), a complaint can also be directed against the ruling itself. See Brunner, infra, note 58. Garlicki | Constitutional courts versus supreme courts 47

Thus, even from a procedural perspective, it has never been possible to provide for a truly genuine separation of jurisdictions; in almost all the countries that decided to establish a separate constitutional court, this court’s powers eventually intervened in some areas traditionally controlled by the supreme court. However, the problem remained somewhat hidden as long as — according to the European tradition — national constitutions were regarded mainly as political instruments rather than as the supreme law of the land. Thus, judicial bodies had only a limited competence to intervene in constitutional/political Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 controversies. Furthermore, at the beginning of the twentieth century, only a few countries were ready to have their constitutions incorporate a developed catalogue of individual rights. Some, such as Austria or France, concentrated their regulations on governmental structures; others, Weimar Germany, for example, limited the constitutional enforceability of their bills of rights. As a consequence, ordinary courts had only very occasional opportunities to apply constitutional provisions when deciding civil (administrative) or criminal cases, and the constitutional court —if it existed at all —had even fewer opportunities to decide cases related to the legal status of an individual.

1.3 . The judge-made constitution This factual separation of jurisdictions began to fade after World War II. The authors of the postwar reconstruction realized the importance of both the legal authority of the constitution and the enforceability of fundamental rights. New constitutions provided, on the one hand, for comprehensive bills of rights and, on the other, for the establishment of constitutional courts vested with adequate powers to enforce those bills of rights. This fundamentally changed the locus in which the constitutional provisions were to be applied. Once these provisions per- taining to individual rights were perceived as binding legal norms and once procedures for invoking those rights were operational, it was inevitable that constitutions would assume a more prominent role in the adjudication of individual cases and controversies. This new role for national constitutions has had three important consequences with regard to the structure and functioning of the judicial branch. The fi rst is related to the transformation of the very nature and scope of the constitution. The increasing number of cases submitted to the new constitutional courts requires that they fi nd adequate and convincing answers in constitutional texts. Those texts, however, are seldom very specifi c; particularly in the fi eld of individual rights, constitutional provisions were necessarily drafted in general and value-oriented language. Therefore, constitutional adjudication entails a much greater degree of creativity than is typically seen in the traditional process of the judicial application of statutes. As a result, a very rich constitutional case law begins to accompany the original text of the constitution and, gradually, that case law becomes more relevant (not to say more authorita- tive) than the constitution’s original written norms. Constitutional case law (and not the formal amendment procedure) assumes the task of adjusting constitutional norms to changing political and social contexts and of developing 48 I•CON January 2007 Vol. 5: 44 those norms far beyond the originally intended scope. A so-called judge-made constitution begins to supplement (or, sometimes, even to replace) the written constitution. Since constitutional case law results mainly from the decisions of the constitutional court, it soon becomes obvious that the constitution may be applied only through application of the jurisprudence of that court. This process, well known in U. S. constitutional history, has surfaced in almost all those European countries that managed to transform their constitutions into genuine supreme laws of the land. Clearly, there have always been disputes as to the Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 legitimacy of judicial constitution making. Nonetheless, such a process indisput- ably has taken place (and still is taking place) in most European democracies. Second, the process of constitutional adjudication focuses, usually, on exam- ining whether a particular legislative provision or judicial decision is in conformity with the constitution. Those provisions or decisions belong to different branches of law. Thus, in the vast majority of cases, the constitutional court goes beyond the traditional realm of constitutional law, visiting (some would say invading) other branches of law. 9 In particular, the court has to clarify what the constitution requires or forbids with respect to the legislative regulation of particular matters. This means that the court must defi ne constitutional “com- ponents” with respect to the content and approach of specifi c areas of law. This process, known as “ constitutionalization of specifi c areas of law, ”10 pertains most typically to criminal procedure as well as to various issues of property rights, family law, taxation, and social benefi ts. In all those and many other areas, the constitution —as defi ned by the case law of the constitutional court — provides for norms and rules of a higher order, by which I mean that they are binding both on the “ ordinary ” legislature as well as on the “ ordinary ” judge. Thus, with respect to all areas of law, constitutional courts arrogate to themselves a part of each of the existing governmental monopolies, namely, the power of the parliament to legislate and that of the supreme court to interpret and apply the laws made by the parliament. In particular, the interpretative function is of paramount importance for the relations within the judicial branch. The decision whether a statutory provision is constitutional cannot be taken before the real meaning of that provision has been established. This must be done by the constitutional court. Ordinarily, that court would follow the interpretation already

9 As András Sajó observes, “[c]onstitutional adjudication does not primarily affect the legislature but it does the ordinary administration of justice, and in practice, it extends constitutionalism (primarily through the protection of individual rights) to areas beyond public law, to criminal, administrative and private law.” ANDRÁS SAJO, LIMITING GOVERNMENT: AN INTRODUCTION TO CONSTITUTION- ALISM 243 (Central Eur. Univ. Press 1999).

10 See, e.g., LA CONSTITUTIONALISATION DES BRANCHES DU DROIT [THE CONSTITUTIONALIZATION OF AREAS OF THE LAW] (Bertrand Mathieu & MichelVerpeaux eds. (Economica 1998); Robert Alexy, Verfassungsrecht und einfaches Recht—Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit [CONSTITUTIONAL LAW AND OTHER LAW—JURISDICTION OVER THE CONSTITUTION AND JURISDICTION OVER SPECIFIC SUBJECT MATTERS], in 61 VERÖFFENTLI- CHUNGEN DER VEREINIGUNG DER DEUTSCHEN STAATSRECHTSLEHRER [PUBLICATIONS OF THE ASSOCIATION OF GERMAN PUBLIC LAW TEACHERS] 12–14 (de Gruyter 2002) (hereinafter, “VVDStRL”). Garlicki | Constitutional courts versus supreme courts 49 established in the jurisprudence of the supreme court. Sometimes, however, the constitutional court may be confronted with multiple possible interpretations and may be tempted to indicate which one is constitutionally correct. Third, and fi nally, once constitutional norms, principles, and values become relevant to the application of specifi c statutes, they must be applied not only by the constitutional court, which usually intervenes at the very last instance, but also— and primarily— by all other courts and judges.11 The constitutionalization of specifi c branches of law means that the normative content of each of those Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 branches is now determined not just by particular statutes and codes but by the pertinent constitutional provisions and the existing constitutional case law. An additional component, at least in Europe, derives from the supranational human rights instruments as developed in the case law of the European Court of Human Rights and the European Court of Justice. This extra element radi- cally transforms the functions and the responsibilities of an ordinary judge. The judicial process no longer is limited to the two-dimensional application of statutory norms to the facts of the case. In the modern constitutional state, each and every judge must fi rst establish the content of the relevant norm, and this requires the simultaneous application of statutory, constitutional, and supranational provisions. While statutory provisions form most obvious and useful basis for decision, their binding authority soon became limited since — in practically every case —a question may arise whether or not those provisions conform to the higher law. It is the ordinary judge who, at least in the fi rst instance, must produce an answer, and such an answer often requires the judge to fi nd the correct interpretation of both the statutory provision and the constitutional (or supranational) norm. In effect, it is not only the constitutional court but also the supreme court that interprets the constitution, just as it is not only the supreme court but also the constitutional court that interprets ordinary statutes. The foregoing developments demonstrate that no genuine separation of constitutional jurisdiction and ordinary jurisdiction is possible in a modern Rechtsstaat . The new role of constitutional norms may be benefi cial for the protection of individual rights and liberties, but it also complicates, to a considerable extent, relations within the judicial branch. There are several areas in which both jurisdictions have to act in parallel, and only a very few constitutions provide for the clear delimitation of their tasks. No wonder that, from time to time, positions taken by the constitutional court may differ substantially from those preferred by the supreme court. The situation requires both parties to establish some reasonable mode of coexistence; however, it also produces numerous confl icts and disputes. In other words, constitutional courts and supreme courts are traveling on the same road, but not necessarily according to the same rules and not necessarily in the same direction.

11 Werner Heun, Verfassungsrecht, id. at 109. 50 I•CON January 2007 Vol. 5: 44

2 . Experience: Some examples of judicial cohabitation It has not always been easy to elaborate a modus vivendi for the courts. In most countries, the constitutional courts emerged long after the supreme courts had already established their authority. It was quite natural that the lower courts were ready to accept that authority and to follow the case law of the supreme court. Thus, in case of a confl ict with the supreme court, the arguments of the constitutional court had to be genuinely convincing if they were to be accepted by the lower courts. Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 Almost all countries of Europe have experienced different types of confl icts between their higher courts. It may be useful fi rst to recall some examples and, only later, to propose some conclusions of a general nature.

2.1 . Germany The German Constitutional Court, the Bundesverfassungsgericht, was the fi rst entirely new constitutional jurisdiction established in postwar Europe. It emerged as a total newcomer, since no developed procedures for judicial review had ever existed in German constitutional history. It encountered the fi ve branches of specialized courts already well established in the pre-Nazi tradition of the German Rechtsstaat , headed by fi ve federal supreme courts. The situation of the Constituti- onal Court was, therefore, diffi cult; at the same time, however, the other jurisdictions were in a process of reconstruction and, unlike the new Constitutional Court, had to overcome the failures of their immediate past. In addition, the climate of postwar reforms offered the new Court a considerable chance of success, especially as one of the basic premises of the new system was the recognition of the supremacy of the Constitution. The Court was meant to be the most important judicial instrument in preserving that superiority; accordingly, it was vested with powers broader than its Austrian or Italian counterparts. In particular, the Federal Constitutional Court Act12 introduced the procedure by which constitutional complaints could be lodged by individuals against fi nal judgments of the specialized courts. Within the next ten years, the German Constitutional Court managed to fi nd its way to the very summit of the new constitutional system. It began by estab- lishing its structural independence: fi rst, with respect to the executive branch; 13

12 Gesetz über das Bundesverfassungsgericht vom 12. März 1951 [Statute on the Federal Constitu- tional Court in the version of 12 March 1951], BVerfGG, BGBl. I at 243.

13 Initially, the Constitutional Court (like all other courts in Germany) was included in the administrative and budgetary structure of the Federal Ministry of Justice. In 1952, the Court demanded independence from the executive branch (so-called Statusdenkschrift: see 6 JAHRBUCH DES OFFENTLICHEN RECHTS 144 (1957)), and it has since managed to consolidate its position as a “constitutional organ of the state.” Garlicki | Constitutional courts versus supreme courts 51 then, with respect to the supreme courts.14 Simultaneously, the Court began to develop the concept of the direct applicability of the Constitution (its provisions on fundamental rights) and to impose that concept on other segments of the judicial branch. The procedure of constitutional complaint ( Verfassungsbeschwerde ), even if still lacking clear constitutional foundations, emerged as an extremely effective tool. In two landmark decisions, Elfes (1957) 15 and Luth (1958),16 the Court extended the applicability of constitutional complaints to all the situations that entailed conﬂ icts with a general right to “ indi- Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 vidual liberty, ” and it developed the concept that fundamental rights create an objective order, organized around certain general values and principles. Moreover, it was in this way, and in this context, that the Constitution acquired a so-called radiation effect upon private law relations. There is no need to recall those well-known developments in detail. It is sufﬁ cient to note that they had a profound impact on relations within the judicial branch. As recently summarized by Robert Alexy, the Court’s ap - proach to the interpretation of fundamental rights, or Grundrechte , resulted in a gradual constitutionalization of the whole legal system. The Constitutional Court as well as the specialized courts participated in that process, and their functions could not but overlap to a considerable degree.17

14 The fi rst important controversy arose around the procedure of incidental review of constitutionality. The FCC Act provided that any court could, at any stage of the judicial process, refer a constitutional question to the Constitutional Court but only via an appropriate supreme court, which had the right to submit its own opinion on the question referred by the lower court. In the practice of the Bundesgerichtshof (the supreme court in civil and criminal matters) such opinions began to take the form of all but complete judgments on constitutionality and were published in the offi cial collection of the Bundesgerichtshof’s decisions, sometimes before the Constitutional Court had rendered its decision. In 1955, the Constitutional Court declared that the supreme courts were not allowed to submit their opinions. In response, all fi ve supreme court presidents addressed a note of protest to the President of the Constitutional Court. Finally, in July 1956, the Federal Con- stitutional Court Act was amended and the participation of supreme courts in the procedure of judicial referrals was abolished. See Hans Joachim Faller, Bundesverfassungsgericht und Bundes- gerichtshof, 115 ARCHIV DES OFFENTLICHEN RECHTS 189–192 (1990). Since then, it remains within the discretion of the Constitutional Court to seek opinions from the supreme courts: see Renate Jaeger & Siegfried Bross, Die Beziehungen zwischen dem Bundesverfassungsgericht und den ubrigen einzestaatlichen Rechtsprechungsorganen [THE RELATIONSHIP BETWEEN THE FEDERAL CONSTITUTIONAL COURT AND OTHER INDIVIDUAL STATE JUDICIAL ORGANS], 11 EUROPAISCHE GRUNDRECHTENZEITUNG 31 (2004).

15 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] January 16, 1957, 6 Entsc- heidungen des Bundesverfassungsgerichts [Decisions of the Federal Constitutional Court] [BVerfGE] 32-45.

16 BVerfG, January 15, 1958, 7 BVerfGE 198-230.

17 Alexy, supra note 10, at 10–12. 52 I•CON January 2007 Vol. 5: 44

No clear indication as to the delimitation of the functions and powers of those courts could be found in the written text of the Basic Law. The legal doctrine sug- gested several proposals, in particular, the concept of “ specifi c constitutional law” and the test for the lawmaking nature of judicial solutions of individual cases.18 The jurisprudence of the Constitutional Court tacitly accepted those “ Formels ” ; none of them, however, managed to fi nd a clear implementation in the Court’s practice. The limits of review seem to be delineated mostly on a case- by-case basis, and the initial optimism of the legal doctrine is giving place to cer- Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 tain resignation.19 While the Court keeps emphasizing that it must not act as a Superrevisionsgericht (reexamination court), in practice, its review is far-reaching, venturing even into the examination of whether a judicial assessment of facts has been arbitrary. Nevertheless, only a tiny fraction of complaints are successful.20 It demonstrates that, in reality, the Constitutional Court only rarely quashes decisions of ordinary courts, assuming the role of a court of cassation. The cassation function of the procedure of constitutional complaint remains less articulated: More signifi cant is the “ persuading ” or “ directing ” function whereby the Court rules on the manner of interpretation and application of a particular fundamental right,21 and the specialized jurisdictions follow the Court voluntarily. Thus, the direct application of the Constitution (of its provisions on fundamental rights) is present in the decisions of all the courts and judges. The Constitutional Court, while preserving the last word if a controversy arises, no longer claims a monopoly over application of the Constitution but, rather, acts as a coordinator of that process.22

18 So-called “Schumann’sche Formel” and “Heck’sche Formel”: see, e. g., Gerd Roellecke, Aufgabe und Stellung des BVerfG in der Gerichtsbarkeit, in III: HANDBUCH DES STAATSRECHTS DER BRD 1225–1226 (Josef Isensee & PaulP. Kirchhof eds., C.F. Müller Verlag 2004), 19 Hans-Joachim Koch. Bundesverfassungsgericht und Fachgerichte [Federal Constitutional Court and Courts for Specifi c Subject Matters], in RECHTSTHEORIE UND RECHTSDOGMATIK IM AUSTAUSCH [EXCHANGE BETWEEN LEGAL THEORY AND LEGAL DOGMATISM] (Wildfried Erbguth, Friedrich Müller & Volker Neumann eds., Duncker & Humblot 1999) 137. See also Jörg Berkemann, Das BVerfG und “seine” Fachgerich- tsbarkeiten [The Federal Constitutional Court (BVerfG) and “its own” jurisdiction over specifi c subject matters], 56 DAS DEUTSCHES VERWALTUNGSBLATT 1036 (DVBl 1966); Georg Hermes, VVDStRL, supra note 10, at: 146. 20 As shown by Wolfgang Hoffmann-Riem (Nachvollziehende Grundrechtekontrolle. Zum Verh- altniss von Fach- und Verfassungsgerichtsbarkeit [Monitoring of fundamental rights explained: On the relationship between specifi c subject matter and constitutional law jurisdiction], 128 AoR 177 (2003) in 1999, a year when the Bundesgerichtshof issued some 7000 judgments, applicants prevailed in only ten constitutional complaints against such judgments. 21 For example, the Court may declare that a law is “incompatible” (unvereinbar) with the Constitu- tion, or that a law is “not yet” unconstitutional, or it may establish which interpretation of the law is in conformity with the Constitution. 22 See, e.g., Gerhard Robbers, Fur ein neues Verhaltnis zwischen BVerfG und Fachgerichtsbarkeit [Toward a new relationship between the Federal Constitutional Court (BVerfG) and the jurisdiction over specifi c subject matter], 51 NEUE JURISTISCHE WOCHENSCHRIFT 938 (1998). Garlicki | Constitutional courts versus supreme courts 53

At the same time, however, there is seemingly endless debate as to the limits of the Court’s review of the specialized jurisdictions. Already the Luth and Elfes decisions, while praised by many constitutionalists, have evoked criticism as well. This criticism has persisted for the ﬁ ve decades that followed these rulings and is clearly still present in current discussions.23 From time to time, it is also reﬂ ected in the jurisprudence of the specialized courts. It is true that instances of an open refusal to follow the Constitutional Court are exceptional,24 and that (as is not the case in some other countries) the German Court is adequately equipped Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 to impose its legal positions on other jurisdictions. Nevertheless, there are examples of divergences that have remained unresolved for several decades,25 as well as examples of occasional collisions, sometimes provoking heated exchanges of views.26 Although the modus vivendi between the supreme courts appears more calm and predictable in Germany than in some other countries and although the German Constitutional Court appears to be one of the most

23 Some authors observe that “criticism of the Court has recently developed into a hitherto un- known dimension”: see Philip Kunig, VVDStRL, supra note 10, at 36; and, in particular, note the emergence of a new “zivilistische Fundamentalismus.” Koch, supra note 19, at 165. See also Stephan Korioth, Bundesverfassungsgericht und Rechtsprechung (Fachgerichte) [Federal Constitutional Court and Jurisprudence (Courts for Speciﬁ c Subject Matters)], in FESTSCHRIFT 50 JAHRE BUNDESVERFAS- SUNGSGERICHT [FESTSCHRIFT: 50 YEARS OF THE FEDERAL CONSTITUTIONAL COURT] 57 (Peter Badura & Horst Dreier eds., Paul Siebeck 2001), noting a growing number of critics of the Constitutional Court.

24 For some examples, see Jaeger & Bross, supra note 14, at, 12.

25 One of them relates to the interpretation of the “expropriation” clause (article 14 of the Basic Law). In 1952, the Bundesgerichtshof decided that article 14 allows the right to compensation to be extended, as well, to situations of “de facto expropriation” (“enteignungsgleiches Eingriff”), even if such extension had not been provided at the statutory level. The Constitutional Court has, on numerous occasions, hinted that it was not ready to support such an interpretation of article 14. It was, however, only in 1981 that the Court clearly decided that article 14 could not serve as an adequate legal basis for granting compensation in such cases. The Bundesgerichtshof had to accept this, but, unwilling to forsake its own jurisprudence, it established that the right to compensation results from principles of customary law. It eliminated the constitutional dimension (and thus the direct jurisdiction of the Constitutional Court). See Hans Joachim Faller, supra note 14, at 199–202. Quite recently, the Constitutional Court experienced some problems with assuring full compliance of the penal courts in respect to the length of detention preceding a ﬁ nal conviction, in particular, postconviction by the ﬁ rst instance court. The local courts have not always been ready to follow the position of the Constitutional Court; in consequence, the Court had to quash their decisions and to remind them of the binding nature of its constitutional interpretation. See, in particular, the decisions of BVerfG, February 22, 2005, 2 BvR 109/05, http://www.bverfg.de/ entscheidungen/rk20050222_2bvr010905.html (last visited Oct. 16, 2006), 1–47 and BVerfG, December 5, 2005, 2 BvR 1964/05, http://www.bverfg.de/entscheidungen/rk20051205_ 2bvr196405.html (last visited Oct. 16, 2006), 1–109.

26 See examples quoted by Faller, supra note 14, at 202–206; Kunig, VVDStRL, supra note 10, at 37; Roellecke, supra note 18, at 1230. See also the judgment of the Constitutional Court of 6 December 2005, BVerfG, December 6, 2005, 1 BvR 1905/02, http://www.bverfg.de/ entscheidungen/rs20051206_1bvr190502.html (last visited Oct. 16, 2006), 1–72. 54 I•CON January 2007 Vol. 5: 44 powerful jurisdictions in Europe, the problem of relations within the judicial branch is nonetheless far from a generally accepted solution.

2.2 . Italy Intercourt relations in Italy are more temperamental. The fi rst important controversy emerged almost immediately at the conclusion of the eight-year process creating the Italian Constitutional Court, the Corte Costituzionale. To make a long story short,27 it suffi ces to note that the Italian system of judicial review does not recognize the procedure of constitutional (that is, individual) com- Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 plaint and operates, fi rst of all, by means of “legal questions” submitted to the Court by the courts of general jurisdiction. Such referrals may pertain only to those statutory provisions that would form a basis for the court’s resolution of a pending case. Once such a question is submitted, the Constitutional Court decides on the constitutionality of the referred provision, and the Court’s ruling becomes part of the law of the case. This has always been clear with regard to a “ simple ” ruling of unconstitutionality, since such a ruling invalidates the statute with a universally binding effect. However, the Constitutional Court, since its early years, has tried to avoid rulings of unconstitutionality. Rather than invalidate laws, the Court has sought to develop so-called interpretative rulings in which a decision on the constitutionality of law is taken not in abso- lute terms but in relation to a particular interpretation of the provision at issue. Two types of interpretative decisions have emerged in the practice of the Constitutional Court.28 Those known as “ admission ” (sentenza interpretativa di accoglimento) state that the provision, if read in a certain way, is unconstitutional. Since this excludes only one possible interpretation, the law remains formally intact; only the interpretation that has been declared unconstitutional may no longer be applied. Those of “ rejection ” (sentenza interpretativa di rigetto ) state that the provision, if read in a certain way — and only in this way — is constitutional. This means that from multiple logically possible meanings of the text, the Constitutional Court designates one that conforms to the Constitution and rejects all others. The problem is that for the Constitutional Court to issue an interpretative ruling, it must fi rst establish the interpretation of the provision under review. If the interpretation adopted by the Constitutional Court differs from the one established in the jurisprudence of the ordinary courts, the authority of the Constitutional Court’s ruling might be placed in doubt.

27 See, e.g., John Henry Merryman & Vincenzo Vigoriti, When Courts Collide: Constitution and Cassa- tion in Italy, 15 AM. J. COMP. L. 665–686 (1967).

28 See especially GUSTAVO ZAGREBELSKY, LA GIUSTIZIA COSTITUZIONALE [CONSITITUTIONAL ADJUDICATION]156 (Il Mulino 1988); THIERRY DI MANIO, LE JUGE CONSTITUTIONNEL ET LA TECHNIQUE DES DECISIONS “INTERPRETA- TIVES” EN FRANCE ET EN ITALIE [THE CONSTITUTIONAL JUDGE AND THE TECHNIQUE OF “INTERPRETATIVE” DECISION IN FRANCE AND ITALY] (Economica 1997); Enzo Cheli & Filippo Donati, Methods and Criteria of Judgment on the Question of Rights to Freedom in Italy, in HUMAN RIGHTS AND JUDICIAL REVIEW: A COMPARATIVE P ERSPECTIVE 235–236 (David M. Beatty ed., Springer 1994). Garlicki | Constitutional courts versus supreme courts 55

In 1958, the Italian Court of Cassation decided certain questions related to the procedure of “ summary investigation ” and ruled that some fair-trial guarantees need not have full application to that type of proceeding. In February 1965, the same issue was submitted to the Constitutional Court, which refused to declare the contested provisions unconstitutional and spelled out how those provisions should be interpreted by the criminal courts. However, this interpretation required the Court of Cassation to revise its 1958 jurisprudence. In April 1965, the Court of Cassation refused to do so, rejecting the approach adopted by the Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 Constitutional Court. Two months later, the latter Court — using the technique of interpretative admission —responded by declaring the contested provision unconstitutional insofar as it made possible the interpretation adopted by the Court of Cassation. This settled the question of constitutionality; at the same time, however, it remained unclear to what extent the Constitutional Court’s decision was retrospectively applicable. At the end of 1965, the Court of Cassation decided that the applicability of the Constitutional Court’s ruling was only prospective. “ The debate, which caused uproar and led to a very serious conﬂ ict between the two courts, was resolved by the Judgment No. 49/1970 of the Constitutional Court, which withdrew and acknowledged that the issue of retrospective application of decisions on illegality is not a matter of constitutional law. ”29 In the decades that followed, the problem of interpretative judgments, while not resolved in a clear manner, lost most of its pertinence. Both courts tried to avoid open conﬂ icts. On the one hand, the growing authority and importance of the Constitutional Court prompted the Court of Cassation to accept its interpretations of statutes. On the other hand, the Constitutional Court began to develop new techniques of constitutional interpretation, in particular, the “ living law ” concept, which assumes that the Constitutional Court does not review contested legal provisions in the abstract but, rather, as they have been already applied in the case law of other superior courts. The constitutionality of legal provisions is also assessed in relation to their content as established within the existing legal reality. In other words, the Constitutional Court accepts the Court of Cassation’s responsibility for statutory interpretation, but it reserves for itself the last word as to whether that interpretation remains within constitutionally prescribed limits. At the same time, both judicial case law and legal doctrine agree that interpretative decisions on constitutionality do not have a universally binding authority and are effective “only insofar as the Constitutional Court’s position is persuasive. ”30 It means that, at least with

29 Guiseppe La Greca, Current Situation and Planned Reforms in the Light of Italian Experience, in THE SUPREME COURT AND THE CONSTITUTIONAL COURT: THIRD MEETING OF PRESIDENTS OF SUPREME COURTS OF CENTRAL AND EASTERN EUROPEAN COUNTRIES 9 (Council of Europe 1997).

30 Giancarlo Rolla & Tania Groppi, Between Politics and the Law: The Development of Constitutional Review in Italy, CONSTITUTIONAL JUSTICE, supra note 2, at 151. 56 I•CON January 2007 Vol. 5: 44 respect to the interpretation of the living law, it is, in fact, the Court of Cassation that retains the last word.31 A recent controversy between the two courts illustrates that their modus vivendi remains fragile and, to a large extent, depends on the goodwill and self- restraint of both parties. In this instance, the courts clashed over the interpretation of article 303 of the Code of Penal Procedure (speciﬁ cally, in connection with the calculation of the maximum term of preliminary detention). In 1998, the Constitutional Court declared that article 303 must conform to arti- Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 cles 3 and 13 of the Constitution and indicated the correct interpretation of the code.32 The Court of Cassation, doubting the correctness of that interpretation, directly challenged33 the constitutionality of article 303 before the Constitutional Court. The Constitutional Court dismissed the request, reiterating that article 303 should be interpreted in the manner previously stated, under which it remained constitutional.34 The Court of Cassation refused to follow that interpretation, observing:

The Constitutional Court’s interpretative decisions of rejection do not have an erga omnes effect. They are, in this regard, distinct from ﬁ ndings of the constitutional illegitimacy of a provision under review. That is why the former contain only a negative message [holding that no unconstitutionality has been established] and are determinative only for the case on which the question of constitutionality has been referred. In all other cases, the ordinary judges retain their power and duty (provided for in Article 101 sec. 2 of the Constitution) to interpret, autonomously, the content of legal norms.35

31 Alessandro Pizzorusso, Présentation de la Cour constitutionnelle italienne [Overview of the Italian Constitutional Court], 6 LES CAHIERS DU CONSEIL CONSTITUTIONNEL 31 (1998).

32 Corte cost., 7 July 1998, n.292 (subsequently conﬁ rmed by decisions of 19 Nov. 1999 n.429, 19 Jun. 2000 n.214 and 22 Nov. 2000 n.529).

33 Corte cost., cass., 25 July 2002 n. 394.

34 Corte cost., cass., 30 June 2003 n.243.

35 “Le decisioni interpretative di rigetto della Corte costituzionale non hanno efﬁ ciacia erga omnes, a differenza di quelle dichiarative dell’illegittimita costituzionale di norme, e pertanto determinano solo un vincolo negativo per il giudice del procedimento in cui e stata sollevata la relativa ques- tione. In tutti gli altri casi il giudice conserva il potere-dovere di interpretare in piena autonomia le disposizioni di legge a norma dell’art 101 comma 2 Cost …” Corte Cass. 31 Mar 2004, n.23016. See CASSAZIONE PENALE 2710 (2004). See also commentaries of Guiseppe Romeo, id., at 2715–2718, and Paolo Antonio Bruno, id., at 2718–2746. The Constitutional Court had to yield and, in the decision of Corte cost., cass., 22 July 2005 n.229, it found article 303 unconstitutional as interpreted by the Court of Cassation. See CASSAZIONE PENALE 3246 (2005); Guiseppe Romeo, Meglio tardi che mai? [Better late than never?], id., at 3254–3259. Thus, the Constitutional Court afﬁ rmed the concept of “living law” and left the resolution of the problem to the legislature. Garlicki | Constitutional courts versus supreme courts 57

Fifty years of coexistence by the superior courts in Italy failed to produce a clear pattern of relations, even if — in real life — the delimitation of their respective spheres of responsibility became well established. This situation is typical of Italian political and legal culture, but it may also be due to two more-speciﬁ c factors. On the one hand is the predominance of incidental (concrete) review in the procedures before the Constitutional Court. This means that the docket of the Court remains largely dependent on the willingness of ordinary judges to refer constitutional questions to it for a decision. On the other hand, the rulings Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 of the Constitutional Court precede the judicial resolution of the case upon which a referral has been made. Hence, unless the Constitutional Court annuls the law as unconstitutional, the ultimate application of that law belongs, rather, to the ordinary courts —that is, to the Court of Cassation. A second fac- tor is the absence of a procedure of constitutional complaint. It means that the Constitutional Court has no direct power to review the constitutionality of ﬁ nal judgments adopted by other jurisdictions, and that is why the Con- stitutional Court may, from time to time, experience problems in convincing the other superior courts to follow its legal positions.

2.3 . Poland The Constitutional Tribunal of Poland has been in existence since 1986 and represents one of the best-established constitutional jurisdictions among the “ new democracies ” of Europe.36 The Polish system of judicial review rests on three basic procedures: abstract review, “legal questions” referred by ordinary or administrative judges deciding individual cases, and constitutional complaints that are lodged with the Tribunal once appellate procedures have been exhausted. It is the abstract review procedure that has traditionally played the most important role in the operations of the Constitutional Tribunal The procedure of constitutional complaint seems to have become ever more popular, however, although it was only recently introduced by the 1997 Constitution and only in a limited version. The other superior courts in Poland are the Supreme Court and the High Administrative Court, each exercising independent jurisdiction within its area of competence. The Constitution determines, generally, the powers of the superior courts. However, at least two serious problems remain controversial in the judicial practice. The ﬁ rst is related to the very power of the judicial review. The Constitution clearly provides that the Constitutional Tribunal is vested with the competence to review ordinary statutes and other legal regulations and to annul them in case of unconstitutionality or nonconformity with the international in struments to which Poland is a party. Such decisions of the Tribunal have an erga omnes effect and are ﬁ nal and universally binding, that is, also binding on all other courts, the Supreme Court included.

36 See, e.g., the assessment of Schwartz, supra note 2, at 49. 58 I•CON January 2007 Vol. 5: 44

While those powers of the Constitutional Tribunal have never been in doubt, a controversy arose in the mid-1990s as to the role of other courts in reviewing the constitutionality of statutes. Each court, when resolving an individual case, has a right and a duty to consider whether the statutory provisions on which judgment will be based are in conformity with the Constitution. Once a judge, on a motion submitted by one of the parties or on his own initiative, expresses doubts as to the constitutionality of such provisions, she may refer a “ legal question ” to the Constitutional Tribunal. Once the Tribunal has taken Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 its decision, the referring judge must apply it to the case. The question is whether the competence of an ordinary judge may go beyond referral and include, as well, the possibility of independently determining the issue of constitutionality. This is not contested with respect to the judge fi nding a disputed provision constitutional. However, some judges and scholars are of the opinion that ordinary courts also have a power of “ incidental review ” — meaning that they may refuse to apply any statutory provision that is, in their opinion, unconstitutional. According to that logic, the judge should refer the issue to the Constitutional Tribunal only if the interpretation remains doubtful. But if the judge has no doubts about the unconstitutionality of a statute, she has the power simply to decide the case. Such “incidental ” refusal to apply a statute does not collide with the prerogatives of the Tribunal because it does not affect the general validity of the statute and, hence, respects the Tribunal’s exclusive power to annul unconstitutional statutes. While there have been few examples of judgments (mainly coming from the Labour Law Chamber of the Supreme Court) in which ordinary judges actually refused to apply statutes deemed unconstitutional, among the other higher courts only the Constitutional Tribunal has taken the uniform position that there is no constitutional basis for such actions. The Supreme Court and the High Administrative Court still avoid taking any defi nitive stand on the matter. Their case law accepts only that, once the constitutionality of a statute has been determined in a judgment of the Tribunal, this fi nding must be followed by all other courts and judges.37 This controversy illustrates the activist manner in which Polish superior courts (or, at least, some of their judges) approach their role in constitutional adjudication. It is not typical of countries in the region. This Polish “anomaly ” results from a combination of different factors: the original limitations on the powers of the Polish Constitutional Tribunal, the scholarly orientation of the Supreme Court’s personnel, and the tradition of independent application of international treaties by the Supreme Court and the High Administrative Court. 38

37 For a more detailed presentation, see Lech Garlicki, Vingt ans du Tribunal constitutionnel polonais [Twenty years of the Polish Constituional Tribunal], in MELANGES FAVOREU [Favoreu Collection] (Presses Univ. Aix-Marseille, forthcoming 2006).

38 See an interesting comparison of Poland, Czech Republic, Slovakia and Hungary proposed by Zdenek Kuhn, Making Constitutionalism Horizontal: Three Different Central European Strategies, in THE CONSTITUTION IN PRIVATE RELATIONS: EXPANDING CONSTITUTIONALISM, 236–240 (András Sajó & Renata Uitz eds., Eleven International 2005). Garlicki | Constitutional courts versus supreme courts 59

Until now, this has not produced any open conﬂ icts with the Tribunal, and examples of independent judicial refusal to apply “unconstitutional ” statutes remain isolated and limited to matters not yet decided by the Tribunal. A more sensitive area of confrontation relates to the powers of statutory interpretation. In principle, the application and interpretation of ordinary statutes are the province of the Supreme Court and to the High Administrative Court. However, in Poland, as in many other countries, the process of constitutional adjudication necessarily involves the interpretation of statutory provi- Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 sions by the Constitutional Tribunal. Already in the mid-1990s, the Tribunal had begun to develop the technique of “ interpretative decisions, ” which con- ﬁ rm that a contested provision is constitutional only if understood in a manner prescribed in the operative part of the judgment.39 Almost immediately, a question arose as to whether other courts and judges were bound to follow the interpretations established by the Constitutional Tribunal. On two occasions, in 1996 and 1997, the Supreme Court openly refused to apply interpretative resolutions of the Tribunal, observing that, under the Polish Constitution, the judges are bound “ only by statute. ” The Supreme Court’s position was that other courts should apply interpretative resolutions of the Tribunal only when they agreed with the latter’s interpretation.40 The same discussion continued under the 1997 Constitution, relating to the interpretative decisions of the Constitutional Tribunal. There has been no case, as yet, where the Supreme Court has refused overtly to accept an interpretation established by the Tribunal. But in numerous obiter dicta, the Supreme Court judges, when discussing the authority of interpretative decisions, have observed that — under the delimitation of competences established in the 1997 Constitution— they are not obliged to follow the Tribunal’s interpretation. On the other hand, the Tribunal, on equally numerous occasions, has emphasized that the Constitution allows for the use of “interpretative decisions,” and that all courts and judges are required to apply such interpretations as may be

39 Initially, the Polish system had made a distinction between “interpretative decisions” and “interpretative resolutions” of the Constitutional Court. The former represent a type of judgment on the constitutionality of a statute and follow the Italian pattern of sentenza interpretative. The latter were issued by the Constitutional Court in the exercise of its other competence, namely, the establishment of “universally binding interpretation of statutes” (see GEORG BRUNNER & LECH GARLICKI, VERFAS- SUNGSGERICHTSBARKEIT IN POLEN: ANALYSEN UND ENTSCHEIDUNGSSAMMLUNG 1986–1997 [CONSTITUTIONAL LAW JURISDICTION IN POLAND: COLLECTED ANALYSES AND DECISIONS 1986–1997] ) 67–68 (Nomos 1999). It was the exercise of that latter competence that fi rst produced confl icts between the Constitutional Court and the Supreme Court. The 1997 Constitution abolished the procedure of “interpretative resolutions,” but, at the same time, it provided that the “judgments of the Constitutional Court (i.e., decisions concerning constitutionality of statutes) are fi nal and universally binding.” POLISH CONST. art. 190, § 1.

40 Resolution of February 21, 1995, I PZP 2/95 (OSNAPiUS – Jurisprudence of the Chamber of Administration, Labour Law and Social Security, 1995, No. 17, item 214); judgment of May 14, 1996, III ARN 93/95 (OSNAPiUS 1996, No. 23, item 352). 60 I•CON January 2007 Vol. 5: 44 included in the operative portion of a Tribunal judgment. At the same time, the Tribunal adopted and developed the living law approach: once a clear interpretation of a legal provision has already been established in the case law of the Supreme Court (or the High Administrative Court), the Tribunal refrains from making its own interpretation and assesses the constitutionality of the existing interpretation. Nevertheless, there remains a signifi cant area of potential confl ict between the courts.41 There are two principal obstacles to the elaboration of a consistent modus Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 vivendi between the two Polish courts. On the one hand, the constitutional delimitation of the competences of different courts is not clear. The authors of the 1997 Constitution did not provide a solution; they were unwilling to accord the Constitutional Tribunal a superior position within the judicial branch. As a result, each of the courts can claim the same competences. On the other hand, the Tribunal lacks a mechanism by which to impose its legal positions on the other Courts. It is true that the Polish Tribunal, unlike its Italian homo- logue, has the power to decide on constitutional complaints. Since such complaints are admissible only after appellate procedures have been exhausted, the Tribunal is usually confronted with judgments already made by the Supreme Court or by the High Administrative Court. But the Polish version of constitutional complaint remains limited; it does not allow for the possibility of directly challenging the constitutionality of an individual judgment or decision. The constitutional complaint may be raised only against the legal provision on which an individual judgment is based. Thus, the Tribunal reviews the law per se, but not the manner of its application in an individual case. Furthermore, even when the Tribunal fi nds that the contested statute is, indeed, unconstitutional, it does not automatically invalidate the individual judgments and decisions that applied that provision. The party who prevails in the constitutional complaint procedure must then petition the ordinary court to reopen his or her case, and that court may not be ready to take into account all aspects of the Tribunal’s judgment.42 Poland may be regarded as a unique example of “constitutional activism” on the part of ordinary judges, but, with respect to the existence of confl ict between the superior courts, it is no different from several other countries of the region. In the Czech Republic, for example:

[T]he issue of the binding force of the Constitutional Court’s precedents grew into a major systemic crisis . . . . The Czech Supreme Court openly revolted against the Constitutional Court’s decisions, claiming that

41 For more detailed presentation, see generally Garlicki, supra note 37.

42 One may recall a recent controversy concerning the scope of reopening the cassation proceedings before the Supreme Court that found its resolution only when the legislature “helped” the Tribunal by adopting necessary amendments to the Code of Civil Procedure. See Garlicki, supra note 37. Garlicki | Constitutional courts versus supreme courts 61

the latter’s opinions are not binding on the Supreme Court since the Continental legal system was not based on the system of precedents. The ordinary judiciary was supported and praised by a part of a domestic legal scholarship, deeply suspicious of the Constitutional Court and its new philosophy . . . . The Constitutional Court repeatedly quashed decisions of the ordinary judiciary in which the ordinary courts had opposed the constitutional jurisprudence. Although tensions have eased since 2000, the issue is still far from being resolved.43 Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 Tensions of a similar nature have also become apparent in other countries of the region, in particular, in Hungary, 44 but also in Russia. 45 Nor are such tensions foreign to Western European systems, despite profound differences in their legal traditions and political history. The expression “ war of judges ” was

43 Zdenek Kuhn, supra note 38, at 223–225. See also Pavel Holländer, The Role of the Constitutional Court for the application of the Constitution in case decisions of ordinary courts, 86 ARCHIV FUR RECHTS- UND SOZIALPHILOSOPHIE 537 (2000); WOJCIECH SADURSKI, RIGHTS BEFORE COURTS 21–23 (Springer 2005). See also Jiri Priban, Judicial Power vs. Democratic Representation, in CONSTITUTIONAL JUSTICE, supra note 2, at 380 (observing that “[t]he main conﬂ ict between the Constitutional Court and the Supreme Court as the highest body of the ordinary judiciary was about the Constitutional Court’s power to review decisions of ordinary courts and therefore its entitlement to review the constitutionality of the Supreme Court’s decisions”).

44 The Hungarian Constitutional Court, under the presidency of László Sólyom, ranked among the most active courts in the region. While it does not have direct powers to review the constitutionality of individual judicial decisions, it has developed several techniques of review of the jurisprudence of ordinary courts (in particular, the “living law concept”). See Schwartz, supra note 2, at 83. Conﬂ ict with the Supreme Court was inevitable and lessened only after profound changes in the Constitutional Court’s judicial philosophy had taken place in the beginning of the current decade: see Gábor Halmai, The Hungarian Approach to Constitutional Review: The End of Activism? in CONSTITU- TIONAL JUSTICE, supra note 2, at 204–207.

45 The Russian courts attempted to establish their autonomous right to set aside unconstitutional statutes. As Sadurski notes, “[R]ussia provides a good example of such a confl ict; it resulted in a victory for the Constitutional Court which fi ercely fought against granting regular courts the power to make their own declarations as to the unconstitutionality of statutes. It maintained that the only avenue opened to courts in such cases was to stay the proceedings and to address the Constitutional Court in the form of ‘concrete review.’ . . . The Constitutional Court, in a decision of 16 June 1998, taking the form of a binding interpretation of the Constitution, reminded the courts that it was itself the only body competent to decide upon issues of constitutionality, either in abstracto or in concrete cases. . . . It is only in regard to sub-statutory acts that the regular courts may directly apply the Constitution rather than the act.” Sadurski, supra note 43, at 20–21. 62 I•CON January 2007 Vol. 5: 44 recently used in connection with developments in Belgium,46 while the Austrian Supreme Court expressed clear opposition to proposals to extend the procedure of constitutional complaint, 47 and in Spain an endemic confl ict surfaced suddenly in 2004.48 In the specifi c context of this discussion, the constitutional court of France is in the weakest position. Since the Conseil Constitutionnel decides on the constitutionality of statutes only in a procedure of a “preventive review,” there is no direct link between the jurisdiction of the Conseil and the judicial imple- Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 mentation of statutes. This solution refl ects the initial resolve to separate the Conseil from the judicial branch. However, at least since 1971, the Conseil has developed a vast jurisprudence on fundamental rights and resorts frequently to various techniques of “ conforming interpretation ” (interpretation conforme ). Nevertheless, the viability of the Conseil’s legal positions has depended on the voluntary compliance of other jurisdictions; the Conseil is equipped with no procedural mechanism by which to impose its interpretations on the Cour de Cassation and the Conseil d’État. That the Conseil Constitutionnel fi nally

46 “Tout ne va pas pour le mieux dans le meilleur des mondes. Les relations entre la Cour d’arbitrage et les deux autres jurisdictions suprêmes, la Cour de cassation et le Conseil d’État, connaissent des moments de tension. L’autorité de plusieurs arrêts de la juridiction constitutionnelle se heurte à de veritables resistances.” [“Not everything goes better in the best of worlds. The relations between the Court of Arbitrage and the two other supreme jurisdictions, the Court of Cassation and the Council of State, experience moments of tension. The authority of numerous opinions of the constitutional jurisdiction runs into real resistance.”] Francis Delpérée Belgique, XX ANNUAIRE INTER- NATIONALE DE JUSTICE CONSTITUTIONELLE 176 (2004), who quotes the opinions of Jacques Van Comper- nolle and Marc Verdussen.

47 Herbert Steininger, Empﬁ ehlt es sich, die Zustandigkeiten des Verfassungsgerichtshofs durch Enfuhrung einer umfassenden, auch Akte der Gerichtsbarkeit erfassenden Individualverfassungs- beschwerde zu erweitern? [Is it advisable to expand the responsibilities of the Constitutional Court through the introduction of an individual constitutional complaint that is comprehensive and cov- ers acts of jurisdiction?], in VERFASSUNGSTAG [CONSTITUTIONAL DAILY] 1994 (Verlag Österreich 1995).

48 “After more than a quarter of a century since the coming into force of the 1978 Constitution, the respective place of each of the Spanish top courts, far from being generally accepted, has evolved into a far-reaching institutional confl ict. In February [2004] the then three living former presidents of the Constitutional Court issued an unprecedented public declaration, under the headline ‘A constitutional crisis,’ following an equally unprecedented ruling of the Tribunal Supremo con- demning the judges of the Tribunal Constiticional to a fi ne of 500 euros each.” Pedro Cruz Villalón, Confl ict between Tribunal Constitucional and Tribunal Supremo—A National Experience, in THE FUTURE OF THE EUROPEAN JUDICIAL SYSTEM IN A COMPARATIVE PERSPECTIVE (Ingolf Pernice, Juliane Kokott, Cheryl Saunders eds., Nomos 2006) 111; see also Francisco Javier Matia Portilla, Espagne, XX ANNUAIRE INTERNATIONALE DE JUSTICE CONSTITUTIONNELLE: ESPAGNE [CONSTITUTIONAL JUSTICE ANNUAL: SPAIN], 187–189 (2004); Leslie Turano, Spain: Qui Custodiet Ipsos Custodes?: The Struggle for Jurisdiction between the Tribunal Constitucional and the Tribunal Supremo, 4 INT’L J. CONST. L. (I•CON) 151–162 (2006) (offering another interesting presentation of this confl ict and discussing several earlier clashes between the two courts). Garlicki | Constitutional courts versus supreme courts 63 managed to win recognition from other jurisdictions49 must be attributed to the intellectual caliber of the Conseil’s case law as well as of those, who —like Louis Favoreu — provided a conceptual framework for that case law.50

3 . Conclusion: Endemic tension or unavoidable confl ict? Several general observations may be submitted in conclusion. Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 3.1 . A systemic tension First, the existence of a certain level of confl ict or, to put it more mildly, certain tensions among the courts constitutes a necessary component of every system of centralized judicial review. Once a distinct constitutional court coexists with one or more supreme courts, this cannot but produce problems in mutual relations. Hence — and this is my fi rst concluding remark — the presence of tensions among the highest courts is systemic in nature.51 In other words, it would be erroneous to regard such tensions as an aberration that should not exist in the judicial system of a democracy. A state of persistent or endemic tension seems to be as natural for the developed democracies as for the postcommunist newcomers. Sometimes it may develop or, rather, degenerate into a “war of courts, ” and only then would the relations between courts approach an aberrational level of confl ict. But it would be naïve to suggest that any pattern of coexistence could be completely free of tensions and problems. While the Kelsenian model has proven to be effi cient and attractive in Europe, it contains also some built- in defi ciencies. It was recently observed that there is “a more general trend that whenever constitutional courts have been established in post-authoritarian countries, a pattern of confl ict between these courts on the one hand and the supreme courts (plus other ordinary courts) on the other, has emerged. ”52 This may be

49 See, e.g., Louis L. Favoreu & Thierry Renoux, Rapport général introductive, [General introductory report] in LA COUR DE CASSATION ET LA CONSTITUTION DE LA REPUBLIQUE [THE COURT OF CASSATION AND THE C ONSTITUTION OF THE REPUBLIC] (Presses Univ. Aix-Marseille 1994); GRANDES DECISIONS DU CONSEIL CONSTI- TUTIONNEL [LANDMARK DECISIONS OF THE CONSTITUTIONAL COUNCIL] 163–169 (Louis Favoreu & Loïc Philip, eds., Dalloz-Sirey 13th ed. 2005).

50 But conﬂ icts between jurisdictions remain constantly present, particularly in the traditional area of the civil law. See, for illustration, an exchange of views of François Luchaire, Les fondements constitutionnels du droit civil [Constitutional bases of civil law], 2 REVUE TRIMESTRIELLE DE DROIT CIVIL 245 (1982); Christian Atias, La civilisation du droit constitutionnel, 7 REVUE FRANÇAISE DE DROIT CONSTI- TUTIONNEL [R.F.D.C.] 435, 436 (1991) (Fr.); Jean Yves Cherot, Les rapports du Droit Constitutionnel et Droit Civil, réponse à Christian Atias [Constitutional and Civil Law Reports, a Response to Christian Atias], 7 R.F.D.C. 439, 441 (1991).

51 Similarly, in particular, Heun, supra note 11, at 110–111; Turano, supra note 48, at 162.

52 Sadurski, supra note 43, at 21. 64 I•CON January 2007 Vol. 5: 44 true, but it should not be forgotten that the usefulness of the comparative perspective, here, remains limited due to the fact that almost all the constitutional courts in Europe have emerged in postauthoritarian countries. France and Belgium present the only examples of constitutional jurisdictions that were not established as one of an array of democratization devices. But both of those jurisdictions are hardly typical: the Conseil Constitutionnel emerged in the rather particular context of the beginnings of the Fifth Republic and primarily undertakes preventive review; the Cour d’Arbitrage emerged from the equally Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 distinctive process of Belgian regionalization. However different the basic structure of their relations with other courts from what is found in ostensibly classic systems of constitutional review, confl icts between courts nonetheless occur in those two countries. Thus, the basis for such confl icts seems to lie in more general structural problems and not solely in the transition from an authoritarian history. Although a clear connection between democratic transition and the establishment of a separate constitutional court has been observed,53 this does not imply that, in countries not haunted by their past, the evolution of relationships among courts is necessarily confl ict-free.

3.2 . The propensities of judges and the pervasiveness of constitutions The existence of tensions and conﬂ icts between the courts can often be traced to the natural inclination of judges to expand the scope of their authority. Over the last decades, many courts, constitutional as well as supreme, have made many efforts to exploit their powers to the limit or, sometimes, even beyond the limit. While it seems legitimate to ask “ whether it is prudent to make use of power that will lead to political catastrophe, ”54 the desire to amass powers and competences is an aspect of human nature as well as of public bodies. Factors such as professional self-esteem,55 institutional dignity, and even simple dislike of competitors56 may also contribute to a certain expansionism on the part of the courts. In brief, there is a subjective element in developments at the highest judicial level.

53 See, e. g. Louis Favoreu: American and European Models of Constitutional Justice, in COMPARATIVE AND PRIVATE INTERNATIONAL LAW: ESSAYS IN HONOR OF JOHN HENRY MERRYMAN ON HIS SEVENTIETH BIRTHDAY, (David S. Clark, ed., Duncker & Humblot 1990); Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L. J. 2032 (1996); Sadurski, supra note 43 at 40–58.

54 BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION 143 (Yale Univ. Press 1992). Ackerman observes further: “[s]urely it is well within the court’s capacity to construe its statutory jurisdiction narrowly.”

55 Leslie Turano, supra note 48, at 161.

56 Several authors note, in this context, differences in the professional background and, as a consequence, in the “constitutional temperament” of constitutional judges (who often come from academia, sometimes from politics, and not too often from the judiciary) and supreme court judges (who usually spend most of their professional lives within the judicial system). Garlicki | Constitutional courts versus supreme courts 65

However, the more basic reason for tension is an objective one, originating in the evolution of the role of modern constitutions. Two developments, mentioned in the initial section of this article, are particularly important factors. First is the judicialization of constitutions, whereby the constitution becomes a legal instrument directly applicable before all courts and, hence, a useful tool in disputes before courts. The second element is the constitutionalization of speciﬁ c areas of law, meaning that ordinary statutes are applied and interpreted on the basis of constitutional principles and provisions. This has the Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 effect of making the constitution relevant, as well, to disputes arising within the traditional areas of law. In effect, it is impossible to delimit any clear border between the constitutional law and the rest of the legal system; the former per- meates the entire structure of the latter. The upshot is that the functions of constitutional courts and those of ordinary courts are bound to overlap, and this cannot but produce tensions and conﬂ icts. Constitutional courts are sometimes depicted as newcomers, arriving at ground already occupied by the supreme courts and trying to interfere with the well-established practices of the judicial branch. This may be true, in that supreme courts have a longer history and greater experience than constitutional courts, just as it is true that traditional spheres of law have a longer history and more-developed jurisprudence than constitutional law. But the modern understanding of a constitution emerged, at least in Europe, only within the last six decades in the West and two decades in the East. This is exactly the age of most constitutional courts in the region. Thus, both the constitutional and the supreme courts have had to approach this new constitutional paradigm at the same time, and both have had to establish their place in the evolving constitutional context. As long as we are in the domain of constitutional law, there is no reason to ascribe more seniority to the supreme court than to the constitutional court. This is particularly true for the postauthoritarian systems, where the previous supreme courts had to be “ revitalized. ” Now, these same countries also account for most of the “constitutional court” countries in Europe.

3.3 . A preference for “positive lawmaking” It is the power to fi nd statutes unconstitutional that is sometimes identifi ed as the main area of confl icts between the courts.57 While no one challenges the constitutional courts’ sole discretion to invalidate — with an erga omnes authority— unconstitutional statutes, other courts claim an independent competence to examine the constitutionality of statutes and to refuse the application of un constitutional statutory provisions. Thus, the real confl ict develops within the area of what may be termed “ negative ” lawmaking.

57 See Sadurski, supra note 43, at 19–25. 66 I•CON January 2007 Vol. 5: 44

This may be true in respect of some countries, the Polish example being one of the most prominent. But, in several other countries (such as Germany and Spain), the ordinary courts show comparatively less interest in taking fi nal decisions on unconstitutionality. All the partners within the judicial branch agree that this power should remain reserved to the constitutional court. However, the constitutional courts themselves do not regard the invalidation of statutes as their main tool in deciding constitutional issues. Quite often, they seek, rather, to establish an interpretation of the statute in question that allows Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 it to survive judicial scrutiny. It seems that many, if not most, contemporary constitutional courts focus more on the constitutional interpretation of statutes than on declarations of unconstitutionality. Thus, the statute survives, although its meaning and scope of operation may change considerably in the process. In effect, constitutional courts act more often as positive lawmakers than negative ones. It is not necessary to raise here the question of the legitimacy of this version of judicial review. Suffi ce it to say, this is the reality of the jurisprudential activity of constitutional courts in most contemporary systems. It alters the traditional balance of powers between the constitutional court and the parliament and also has a profound impact on the relations within the judicial branch. Statutory interpretation has always been among the competences of the ordinary courts. While the incidence of creativism, so called, and positivism, so called, has varied among different countries and different historical periods, it has always been recognized, at least by the realists, that judicial interpretation entails some component of lawmaking. Once the process of the constitutionalization of particular areas of law had emerged, the courts began to use constitutional provisions in the process of statutory interpretation. This means that both the supreme court and the constitutional court strive, simultaneously, to realign the statutory law with the national constitution. However, conclusions proposed by each of those courts may not always be the same. Thus —my next concluding remark —the main body of confl icts between the courts develops within the area of interpretation, that is, within the area of positive lawmaking.

3.4 . The weaker position of constitutional courts The outcome of those confl icts depends mainly on the general environment in which the judicial branch operates in a given country. The established rules of the political culture, the infl uence of the country’s legal tradition, the authority of the national constitution, and the authority of the parliament delimit what area is left for the judicial branch and determine the ways and means of confl ict resolution. It is scarcely necessary to repeat that, in this respect, there are profound differences among the constitutional court countries. Also, the constitutional setting differs considerably from one country to the next. From this perspective, the balance of power between the courts depends mainly on the scope of competences vested in the constitutional court. All Garlicki | Constitutional courts versus supreme courts 67 constitutional courts have the power of judicial review and invalidation of unconstitutional statutes and statutory provisions. This gives them, effectively, the last word in confl icts with parliaments, yet it is still not enough to compel other courts to follow the “ constitutional ” interpretation of statutes as established by the constitutional court. The spectrum of other powers of, and procedures before, the constitutional courts varies considerably. It may be argued that only in those countries (Germany, Spain, Austria, the Czech Republic, Slovakia) that have adopted a genuine concept of constitutional complaint Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 ( Verfassungs beschwerde )58 is the Constitutional Court suffi ciently equipped to impose its legal positions on other segments of the judicial branch. Only in this way can the constitutional court set aside any judicial decision, if it fi nds that a court has applied a statute in an unconstitutional manner. Other procedures do not offer such a possibility. The limited versions of the Verfassungsbeschwerde (Poland, Hungary, Russia) are focused on the review of statutory provisions and do not allow for direct invalidation of individual judgments. The procedure of incidental referrals of constitutional questions (Italy) is dependent on the initiative of the court a quo, and it leaves to the same court the fi nal decision as to how to apply the constitutional court’s judgment. Systems based on the abstract review of statutes (France) separate the judicial review from adjudication of individual cases. Of course, the court always has the competence to invalidate a statute. 59 One of the grounds for such invalidation may be that the practice of the ordinary courts has constructed the statute in a manner incompatible with the constitutional interpretation established by the constitutional court. But such a drastic option may be exercised only in exceptional circumstances and can hardly be reconciled with the court’s preference to remain within the arena of positive lawmaking. Constitutional courts were conceived as negative lawmakers and, as long as they are willing simply to delete unconstitutional statutes, they are able to impose their legal positions on all other branches of government and all other segments of the judicial branch. On the other hand, the current activity of many constitutional courts has become focused, instead, on positive constitutional/statutory interpretation. The positive powers of constitutional courts remain, however, less formidable. Only in a few countries have constitutional courts been given legal instruments adequate to control the case law of ordinary courts. Even in those countries, constitutional courts are unable

58 See Brunner’s distinction of “echte” and “unechte” procedures of constitutional complaint in GEORG BRUNNER, VERFASSUNGSGERICHTSBARKEIT IN POLEN [CONSTITUTIONAL COMPLAINT IN POLAND] 48–52 (Nomos 1999).

59 The Conseil Constitutionnel, due to the French system of contrôle préalable, is deprived even of such possibility. Thus, persuasion seems to be the only way to convince ordinary and administrative courts to follow the Conseil’s interpretation of the Constitution. As it has already been mentioned, in the last three decades, the Conseil has appeared more and more successful in that persuasion. 68 I•CON January 2007 Vol. 5: 44 logistically to intervene in all but exceptional cases. That is why the interpretation of statutes (which, nowadays, always takes into account the provisions of constitutional law and supranational law) remains primarily within the province of the supreme courts. My fi nal concluding remark is that constitutional courts appear as weaker participants in that process and, in case of confl ict, they are not always able to deliver that last word. Thus, for the constitutional court, dialogue and persuasion seem to be more effective than open confl icts and confrontations with other jurisdictions.60 Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021

60 Mutatis mutandis, the same may be said of the relationship between the European Court of Human Rights (as well as the European Court of Justice) and the national supreme/constitutional courts.