Relations with Other State Powers

THE BULLETIN The Venice Commission was requested by the Constitutional Court of Romania, currently holding the presidency of the Conference of European Constitutional Courts (CECC), to produce a working document on the topic chosen by its Circle of Presidents at the preparatory meeting in Bucharest in October 2009 for the XV th Congress of the CECC. The topic was the following: “The relations of the Constitutional Court with other state authorities. Sub-topic 1: relations between the Constitutional Court and parliament. Sub-topic 2: conflicts of competence. Sub-topic 3: the execution of judgments.” The present working document is a contribution by the Venice Commission to the success of the Congress. Constitutional courts are the independent guarantors of the constitution and their main task is to protect the supremacy of the constitution over ordinary law. Over time, however, these courts have taken on further tasks, such as safeguarding the individual against the excess of the executive or providing a safeguard against judicial errors. Another very important role of these courts is to act as a neutral arbiter in cases of conflict between state bodies. Parties to such a conflict know that they can turn to the Constitutional Court for a decision that will help them in resolving their conflict based on the constitution. The possibility of turning to the court in itself sometimes incites them to settle their disputes before they even reach the court. In order to function correctly as an effective institution that stands above the parties in such a dispute, Constitutional Courts need to be independent and need to be seen as being independent. Although in many countries constitutional judges are elected by Parliament, they do not represent the political party that nominated them and they even have a “duty of ingratitude” towards the latter. Judges act in their own individual capacity and according to their own judgment. It may, however, happen that a Constitutional Court comes under pressure from other state powers, for instance through threats of budget cuts after an unwelcome judgment or when new judges are not nominated to a court to replace those judges that have retired in order to bring the number of judges below the required quorum. Some courts have even been threatened with dissolution while a few have actually been dissolved. Another important component, without which decisions or judgments are meaningless, is their implementation or their execution. A state which considers itself governed by the rule of law must see to it that court decisions are implemented, especially those of the Constitutional Court. However, the court’s decisions or judgments will only be useful and respected and therefore implemented if the court is held in high esteem by society. This is the only way the court can fulfil its role usefully. This esteem is derived from its decisions or judgments and for new courts that have not yet rendered any decisions or judgments, their respect will derive from their composition, from the means by which the judges were appointed and by the fact that these judges are widely regarded as independent and as being a balanced representation of society. It is important that Parliament respect the decisions or judgments of the Constitutional Court, even if they are unpleasant. Trust in the fairness of the decisions of the court is crucial, otherwise Parliament could re-enact a law the court struck down. Conflicts of competence or jurisdiction may arise, for instance, between a provincial parliament or regional assembly and national government concerning a law and such disputes can be settled by the Constitutional Court. The constitution may specifically list the areas of exclusive national competence as well as concurrent or shared competence. If disputes nevertheless arise, they will ultimately be dealt with by the Constitutional Court as the final arbiter. In addition, the extent to which decisions or judgments of a Constitutional Court are implemented shows the level of democratic culture in a given country. If their decisions or judgments are not respected, the entire structure of rights and duties contained in a constitution are challenged, which will in turn affect the level of democracy and the protection of human rights in the country, undermine its citizens’ confidence in the system and finally affect the way the international community perceives the country concerned. The functions and relationship with other state bodies was the topic of a questionnaire prepared by the CECC, the answers to which can be found on the website of the Constitutional Court of Romania http://www.ccr.ro/default.aspx?page=congres/rapoarte %20incercari . The present working document contains judgments that have been published in the regular editions of the Bulletin on Constitutional Case-Law, some of which have been re-edited by the Constitutional Courts’ liaison officers for this publication, and judgments that have not yet been published in the Bulletin, but were considered to be relevant by the liaison officers. The Venice Commission is very grateful to the liaison officers for their contributions. The Venice Commission will continue its tradition of publishing the working documents of the CECC in special issues of the Bulletin on Constitutional Case-Law, as was the case with the special Bulletin on freedom of religion and beliefs, requested by the Constitutional Tribunal of Poland for the XI th Conference of European Constitutional Courts held in Warsaw on 16-20 May 1999, the Special Bulletin on the relations between Constitutional Courts and other national courts, including the interference in this area of the action of the European courts, requested by the Belgian Court of Arbitration for the XII th Conference held in Brussels on 13-16 May 2002, the special Bulletin on the criteria for the limitation of human rights, requested by the Supreme Court of Cyprus for the XIII th Conference held in Nicosia on 15-19 May 2005 and the special Bulletin on legislative omissions, requested by the Constitutional Court of Lithuania for the XIV th Conference held in Vilnius on 3-6 June 2008. This special issue will be incorporated into the Venice Commission’s CODICES database, which contains constitutional case-law with all the regular issues and special editions of the Bulletin on Constitutional Case-Law, full text decisions, constitutions and laws on Constitutional Courts, comprising approximately 7000 précis in English and French and full texts in 43 languages (www.CODICES.coe.int). T. Markert Secretary of the European Commission for Democracy through Law THE VENICE COMMISSION The European Commission for Democracy through Law , better known as the Venice Commission, is the Council of Europe's advisory body on constitutional matters. Established in 1990, the Commission has played a leading role in the adoption of constitutions that conform to the standards of Europe's constitutional heritage. Initially conceived as a tool for emergency constitutional engineering, the commission has become an internationally recognised independent legal think-tank. It contributes to the dissemination of the European constitutional heritage, based on the continent's fundamental legal values while continuing to provide “constitutional first-aid” to individual states. The Venice Commission also plays a unique and unrivalled role in crisis management and conflict prevention through constitution building and advice. The Commission's legal status and composition Established in 1990 as a partial agreement of 18 member states of the Council of Europe, the Commission became an enlarged agreement in February 2002, allowing non-European states to become full members. The Venice Commission is composed of “independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science” (Article 2 of the revised Statute). The members are usually senior academics, particularly in the fields of constitutional or international law and supreme or Constitutional Court judges. Acting in the Commission in their individual capacity, the members are appointed for four years by the participating countries. Member States All 47 Council of Europe member states are members of the Venice Commission; in addition, Kyrgyzstan joined the Commission in 2004, Chile in 2005, the Republic of Korea in 2006, Morocco and Algeria in 2007, Israel in 2008, Peru and Brazil in 2009, Tunisia and Mexico in 2010 and Kazakhstan in 2011. The Commission thus has 58 full member states. Belarus is associate member, while Argentina, Canada, the Holy See, Japan, the United States and Uruguay are observers. South Africa and the Palestinian National Authority have a special co- operation status similar to that of the observers. Secretariat of the Venice Commission Council of Europe F-67075 STRASBOURG CEDEX Tel: (33) 3 88413908 – Fax: (33) 3 88413738 Venice@coe .int Editors: Sc. R. Dürr, T. Gerwien, D. Jones A. Gorey, M.-L. Wigishoff Liaison officers: Albania ............................................................. D. Biba Latvia...........................................................L. Jurcena Algeria.......................................................H. Bengrine Liechtenstein ..................................................I. Elkuch Andorra ..........................................M. Tomàs Baldrich Lithuania................................................... J. Urbonaite Argentina................................................R.

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