SYMPOSIUM 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 under- standing 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 coun- tries 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 ini- tial idea. The fi rst version of the 1920 constitution of Austria limited the pow- ers 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 separa- tion 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 proce- dures — 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 juris- dictions, 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 constitu- tionality 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 com- plaint can only be directed against the legal