General Reviews of the Independent Work of the Constitutional Courts

Abstract

The issue of the independence of the constitutional judiciary within the legal literature and the written acts, whether national or international, is treated much less than the independence of the ordinary judiciary.[1]

Nowadays, in order to guarantee the independence of the courts, there is a large number of acts both in internal and international scope. Within the European law, the right to court independence is first and foremost guaranteed by the Convention for the Protection of Human Rights.[2] In addition to the Convention, the other important European document about the independence of the judiciary is the Recommendation (94) 12 of the Committee of Ministers on the independence, efficiency and the role of judges.[3] Another important document about the independence of the judiciary is the European Charter on the Status of Courts, adopted by the Council of Europe in 1998.[4]

It is also worth mentioning the opinion no.1 of the Consultative Council of European Judges (CCJE), as important document regarding the independence of the judiciary about the standards related to the independence of the judiciary and the non-revocation of judges.[5] Also important are other opinions of the CCJE concerning the fair and reasonable ruling[6], so the role of the judicial council can be in the service of the society,[7] and towards qualitative court decisions.[8]

Unlike of the guarantees for independent judiciary, which are considerably significant, guarantees for the independence of the constitutional judiciary in European jurisdictions are taken only by the Venice Commission.[9]

In the structuring of the guarantees for the independence of the constitutional judiciary, the case law of the European Court of Human Rights contributes greatly, but it is obvious that because of its nature there is lack of systematic approach on this issue. The working practice of ECHR shows that the guarantees for independent judiciary, given in the article 6, line 1 of the ECHR, will also apply in the proceedings before the Constitutional Courts of the Contracting States. The Constitutional Courts of the member states of the Council of Europe in this context are in a specific position, because in those States, the constitutional courts will also apply the guarantees of the Convention about the independence of their functioning.

Regardless of the small number of acts that regulate the constitutional judiciary, it is perfectly understandable that due to its nature, role and function the judiciary independence guarantees can not be fully applied on the constitutional judiciary.[10]

When we talk about guarantees for the independence of the constitutional court, we should take into account that the notion “constitutional judiciary” is understood in its broad sense.[11]

The principle of the independence of the Constitutional Court originates in the first place from the position held by this supreme authority, from the competencies assigned by its highest act - the Constitution. However, without enjoying full organizational, administrative and financial independence, the Constitutional Court cannot accomplish the tasks assigned by itself. On the other hand, the judges of the Constitutional Court are those that while exercising their duties, must only abide to the Constitution and be independent from any influence that may be caused by any state institution, person or organization. Nowadays, there is no dilemma that the principle of independence of the Constitutional Court is one of the fundamental principles of its work.[12]

This principle must be foreseen and guaranteed by the constitution or by the laws of the respective countries. Such principles are foreseen by the constitutions of the Republic of Macedonia and the Republic of Albania. Anyhow, the implementation of this fundamental principle of the work of the Constitutional Court in real life does not imply its automatic implementation in the work of the Constitutional Court. I consider that the elaboration of this topic in our paper will be only a modest contribution in terms of analysing its implementation in the realities of the countries subject of this research.

This principle must be foreseen and guaranteed by the Constitution or by laws of the respective countries. Such principle is foreseen by the Constitution of the Republic of Macedonia and the Republic of Albania. But the implementation of this fundamental principle of the work of the Constitutional Court in the real life does not imply its automatic implementation in the work of the Constitutional Court. I think that the elaboration of this topic in our work will be only a modest contribution in terms of analysing its implementation in the countries subject of our research.

[1] With the notion “ordinary courts” we understand the regular local district courts (ordinary courts; regular courts; courts of law), including the judges of that courts.

[2] Republic of Macedonia has ratified the European Convention for Human Rights in 1997, published in the Official Gazette of RM, no. 11/97.

[3] Recommendation (94)12 of the Committee of Ministers on the Independence, Efficiency and Role of Judges (adopted by the Committee of Ministers on 13 October 1994 at 516 the meeting of the Ministers’ Deputies).

[4] European Charter on the Statute of Judges, DAJ/DOC (98)23, Strasbourg, 8-10 July 1998.

[5] Opinion No. 1 (2001) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers on standards concerning the independence of the judiciary and the irrevocability of judges, CCJE (2001)OP NA 1, Strasbourg, 23 November 2001.

[6] Opinion No. 6 (2004) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers on fair trial within a reasonable time and judge’s role in trials taking into account alternative means of dispute settlement ( adopted by the CCJE at 5^th meeting, Strasbourg, 22-24 November 2004), CCJE (2004) OP No.6, Strasbourg, 24 November 2004.

[7] Opinion No. 10 (2007) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers  of Council of Europe on the Council for the Judiciary at the service of society ( adopted by the CCJE at 8^th meeting, Strasbourg, 21-23 November 2007), CCJE (2004) OP No.10, Strasbourg, 23 November 2007.

[8] Opinion No. 11  (2008) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers  of Council of Europe on the Council for the Judiciary on the quality of judicial decisions ( adopted by the CCJE at 11^th meeting, Strasbourg, 12-14 November 2008), CCJE (2008) OP No.11, Strasbourg, 14 November 2008.

[9] Venice Commission Vademecum on Constitutional justice, CDL-JU (2007)012, 11 May 2007, The Composition of Constitucional Courts, Science and technique of democracy No.20, European commission for Democracy throught Law (Venice Commission), CDL-STD (1997)020, Council of Europe Publishing, December 1997.

[10] Commission for Democracy Through Law (Venice Commission), Draft report on the Independence of the Judicial System: part I: the Independence of Judges (revised) on the basis of comments by Guido Neppi Modona, Angelika Nussberger, Hjortur Torfason , Valery Zorkin, Study No.494/2008, CDL (2010)006, Strasbourg, 5 March 2010, Point 11, 4.

[11] For instance in the so-called mixed systems for controlling the constitutionality, even though the constitutional court or the supreme court (i.e. any specialized unit of that court) has powers for controlling the constitutionality, all regular courts have the power not to enforce the law if they think that it is in violation of the Constitution.

[12] For the constitutional court work principles see more at Sokol Sadushi, Drejtësia kushtetuese në zhvillim, published in Teona, Tirana, p. 329-349.