consti courts v supreme courts

Citation: 5 Int'l J. Const. L. 44 2007

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SYMPOSIUM

Constitutional courts versussupreme courts

Lech Garlicki*

Constitutional courts exist in most of the civil law countries of Western Europe, and inalmost all the new democracies in Eastern Europe; even France has developed itsConseil Constitutionnel into a genuine constitutional jurisdiction. While theiremergence may be regarded as one of the most successful improvements on traditionalEuropean concepts of democracy and the rule of law, it has inevitably given rise toquestions about the distribution of power at the supreme judicial level. As constitutionallaw has come to permeate the entire structure of the legal system, it has becomeimpossible to maintain a firm delimitation between the functions of the constitutionalcourt and those of ordinary courts. This article looks at various conflicts arisingbetween 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 anecessary component of centralized judicial review.

1. The Kelsenian model: Parallel supreme jurisdictions

1.1 The modelThe centralized Kelsenian system of judicial review is built on two basic assu-mptions. It concentrates the power of constitutional review within a singlejudicial body, typically called a constitutional court, and it situates that courtoutside the traditional structure of the judicial branch. While this systememerged more than a century after the United States' system of diffused review,it has developed-particularly in Europe-into a widely accepted version ofconstitutional protection and control.1 Today, constitutional courts exist inmost of the countries of Western Europe that have civil law legal systems, withthe 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]

Louis Favoreu, Constitutional Review in Europe, in CONSTrtmONALSM AND Roars 46 (Louis Henkin &Albert J. Rosenthal, eds., Columbia Univ. Press 1989). In this context, Favoreu warns against toohasty 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 beorganized according to the specific characteristics of each of them." Id., at 51.

© The Author 2007. Oxford University Press and New York University School of Law. 44All rights reserved. For Permissions, please email: [email protected], Volume 5, Number 1, 2007, pp. 44-68 doi:10.1093Acon/mo44

Garlicki I Constitutional courts versus supreme courts

courts also exist in almost all the new democracies in Eastern Europe, with theexception of Estonia. 2 Even France, traditionally reluctant to accept any formof judicial review of legislation, has developed its Conseil Constitutionnel into agenuine constitutional jurisdiction. 3

It is not necessary in this article to discuss why the European countries wereunable or unwilling to adopt the United States model of judicial review.As Mauro Cappelletti has observed,4 the main reasons lie in the profound differencesin the political and constitutional culture on both sides of the Atlantic Ocean. Thecentralized system of judicial review corresponds better to the European under-standing of separation of powers, to the civil law approach to the role of judicialprecedent, and, last but not least, to the authority of the traditional civil law courtsand the psychology of their judges.' Additionally, in many of those European coun-tries in which the judicial review was adopted as one of the democratizing measuresfollowing a period of authoritarian rule, the existing courts were unable to offeradequate guarantees of structural independence and intellectual assertiveness.

Thus, the emergence of a separate constitutional court may be regarded asone of the most typical features of Continental constitutionalism. It may also beregarded as one of the most successful improvements on the traditionalEuropean, parliament-oriented concepts of democracy and rule of law. It is nowonder 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 establishedconstitutional court, judicial review usually was more responsive to ideas thathad already taken root in democratic countries. At the same time, however,the new constitutional courts had to find their place within the judicial structuresof their own countries. It is a characteristic of the tradition of almost all civil lawcountries that there are at least two parallel supreme courts: one for civil andcriminal cases and one for administrative cases. Constitutional courts enteredthe game as another, new partner. Inevitably, questions emerged about how

2 See, e.g., LA JUSTICE CONSTrUTIONNELL EN EUROPE CENTRALE [CONsTUrmONAL JUSTICE IN CENTRAL EUROPE]

[Marc Verdussen ed., Emile Bruylant 1997]; HERMAN SCHWART, TE STRUGGLE FOR CONMSTrTUTONAL

JUSTICE IN POST-CoMMUNIST EUROPE (Chicago Univ. Press 2002); CONsU'=ONAL JUsTncE, EAST Ao WEsT:DsuocRATIC LEGrrIMAcy AND CONSTITmONAL COURTS iN PoST-CoMMuImsT EUROPE IN A COMPARATE PERSPEC-

nv (Wojciech Sadurski ed., Kluwer 2002).

3 France is the only European country in which constitutional adjudication takes the form, almostexclusively, of a preventive review. Except for the disputes related to the distribution of lawmakingcompetences between the parliament and the cabinet (FR. CONsT. art. 37, sec. 2), the ConseilConstitutionnel only has jurisdiction to review a statute before it has been promulgated.

4 MAURO CAPPEL=Im & WILLIAM COHEN, COMPARATIVE CONSTITIONAL LAw 76-83 (Bobbs-Merrill 1979);

Favoreu, supra note 1. at 44-46.

5 But see ALAN R. BREwER-CARiAs, Juoicmu REvmw IN CouPAETrm LAW 128-131 (Cambridge Univ.

Press 1989).

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judicial power should be distributed between the old and the new courts. Notsurprisingly, it soon became clear that it would be very difficult to developa commonly accepted model of cohabitation at the supreme judicial level.

1.2. Delimitation of jurisdictionsThe general idea of delimitation appears relatively simple. The resolution of allcases and controversies of a constitutional dimension should be monopolizedwithin the constitutional court, whereas the resolution of all cases and contro-versies involving the application of ordinary legislation (and, in particular, ofthe different "codes") should belong to the exclusive province of the ordinarycourts (and, ultimately, to the supreme court). This seemed to be Kelsen's ini-tial idea. The first version of the 1920 constitution of Austria limited the pow-ers of the constitutional court to the abstract review of legislation 6 and did notprovide for any direct links between the judicial application of statutes and thejurisdiction of the constitutional court. However, within a decade a procedurefor the incidental review of statutes by the constitutional court was introducedin Austria.7 Since then, different combinations of abstract and incidentalreview of statutes have become a common feature of all the constitutionalcourts gradually emerging in Europe, the French Conseil Constitutionnel beingthe 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 first, in Austria (albeit in alimited form) and later adopted (in a full version) in Germany, in Spain, and inseveral of the new democracies of Central and Eastern Europe.8 Both proce-dures-incidental review and the constitutional complaint-modified the ideaof the separation of judicial functions in this way: they invite the constitutionalcourts to participate in the adjudication of individual cases by ordinary juris-dictions, either by resolving preliminary questions of the constitutionality ofstatutes or by reviewing the constitutionality of final judicial decisions.

6 In this procedure, the right to bring the case before the constitutional court is reserved for the

highest state bodies and officials (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 theconstitutional court. In most systems, if an ordinary court finds that a statutory provision that ithas to apply in a concrete case is unconstitutional, it must refer the question of constitutionality.

I This is the only procedure allowing an individual access to the constitutional court. A personwho already has lost his or her case before ordinary courts can complain before the constitutionalcourt that their constitutional rights have been violated. In some systems (e.g., Poland), a com-plaint can only be directed against the legal rule that determined the judicial or administrativeruling in the case. In other systems (e.g., Germany and Spain), a complaint can also be directedagainst the ruling itself. See Brunner, infra, note 58.

46 I-CON Vol. 5: 44


Thus, even from a procedural perspective, it has never been possible to pro-vide for a truly genuine separation of jurisdictions; in almost all the countriesthat decided to establish a separate constitutional court, this court's powerseventually intervened in some areas traditionally controlled by the supremecourt. However, the problem remained somewhat hidden as long as-accord-ing to the European tradition-national constitutions were regarded mainly aspolitical instruments rather than as the supreme law of the land. Thus, judicialbodies had only a limited competence to intervene in constitutional/politicalcontroversies. Furthermore, at the beginning of the twentieth century, only afew countries were ready to have their constitutions incorporate a developedcatalogue of individual rights. Some, such as Austria or France, concentratedtheir regulations on governmental structures; others, Weimar Germany, forexample, limited the constitutional enforceability of their bills of rights. As aconsequence, ordinary courts had only very occasional opportunities to applyconstitutional provisions when deciding civil (administrative) or criminalcases, and the constitutional court-if it existed at all-had even fewer oppor-tunities to decide cases related to the legal status of an individual.

1.3. The judge-made constitutionThis factual separation of jurisdictions began to fade after World War H. Theauthors of the postwar reconstruction realized the importance of both thelegal 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 adequatepowers to enforce those bills of rights. This fundamentally changed the locus inwhich the constitutional provisions were to be applied. Once these provisions per-taining to individual rights were perceived as binding legal norms and once proce-dures for invoking those rights were operational, it was inevitable that constitutionswould assume a more prominent role in the adjudication of individual cases andcontroversies. This new role for national constitutions has had three importantconsequences with regard to the structure and functioning of the judicial branch.

The first is related to the transformation of the very nature and scope of theconstitution. The increasing number of cases submitted to the new constitu-tional courts requires that they find adequate and convincing answers in consti-tutional texts. Those texts, however, are seldom very specific; particularly in thefield of individual rights, constitutional provisions were necessarily draftedin general and value-oriented language. Therefore, constitutional adjudicationentails a much greater degree of creativity than is typically seen in the tradi-tional process of the judicial application of statutes. As a result, a very rich con-stitutional case law begins to accompany the original text of the constitutionand, 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 con-stitutional norms to changing political and social contexts and of developing

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those norms far beyond the originally intended scope. A so-called judge-madeconstitution begins to supplement (or, sometimes, even to replace) the writtenconstitution. Since constitutional case law results mainly from the decisions ofthe constitutional court, it soon becomes obvious that the constitution may beapplied only through application of the jurisprudence of that court. This process,well known in U. S. constitutional history, has surfaced in almost all thoseEuropean countries that managed to transform their constitutions into genuinesupreme laws of the land. Clearly, there have always been disputes as to thelegitimacy 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 con-formity with the constitution. Those provisions or decisions belong to differentbranches of law. Thus, in the vast majority of cases, the constitutional courtgoes beyond the traditional realm of constitutional law, visiting (some wouldsay invading) other branches of law.9 In particular, the court has to clarify whatthe constitution requires or forbids with respect to the legislative regulation ofparticular matters. This means that the court must define constitutional "com-ponents" with respect to the content and approach of specific areas of law. Thisprocess, known as "constitutionalization of specific areas of law,""' pertainsmost typically to criminal procedure as well as to various issues of propertyrights, family law, taxation, and social benefits. In all those and many otherareas, the constitution-as defined by the case law of the constitutional court-provides for norms and rules of a higher order, by which I mean that they arebinding both on the "ordinary" legislature as well as on the "ordinary" judge.

Thus, with respect to all areas of law, constitutional courts arrogate to them-selves a part of each of the existing governmental monopolies, namely, the powerof the parliament to legislate and that of the supreme court to interpret and applythe laws made by the parliament. In particular, the interpretative function is ofparamount importance for the relations within the judicial branch. The decisionwhether a statutory provision is constitutional cannot be taken before the realmeaning of that provision has been established. This must be done by the consti-tutional court. Ordinarily, that court would follow the interpretation already

I As Andrds Saj6 observes, "[c]onstitutional adjudication does not primarily affect the legislaturebut 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." ANDRAS SAjo, LLmrTNG GovEiENT: AN LNTRODUcION TO CONSTITUTION-

AUSM 243 (Central Eur. Univ. Press 1999).

1o See, e.g., LA CONSTITUTIONALISATION DES BRANCHES DU DROrr [THE CONSTITIONALmATION OF AREAS OF THE

LAw] (Bertrand Mathieu & MichelVerpeaux eds. (Economica 1998); Robert Alexy, Verfassungsrechtund einfaches Recht-Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit [ Co:vsTnrnoA LAw AND oTHERLAW-URISDICTION OVER THE CONSTITUTION AND JURISDICTION OVER SPECIFIC SUBJECT MATTERS], in 61 VER6FFE'ru-CHUNGN DER VEREINIoUNG DER DEWucSHl STAATSRECHTSLEHRER [PUBLICATIONS OF THE ASSOCIATION OF GERLA\N

PiBuc LAw TEACHERS] 12-14 (de Gruyter 2002) (hereinafter, "VVDStRL").

48 I-CON Vol. 5: 44


established in the jurisprudence of the supreme court. Sometimes, however, theconstitutional court may be confronted with multiple possible interpretationsand may be tempted to indicate which one is constitutionally correct.

Third, and finally, once constitutional norms, principles, and values becomerelevant to the application of specific statutes, they must be applied not only bythe constitutional court, which usually intervenes at the very last instance, butalso-and primarily-by all other courts and judges.1' The constitutionalizationof specific branches of law means that the normative content of each of thosebranches is now determined not just by particular statutes and codes but by thepertinent constitutional provisions and the existing constitutional case law.

An additional component, at least in Europe, derives from the supranationalhuman rights instruments as developed in the case law of the European Courtof 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 ofstatutory norms to the facts of the case. In the modern constitutional state,each and every judge must first establish the content of the relevant norm,and this requires the simultaneous application of statutory, constitutional, andsupranational provisions. While statutory provisions form most obvious anduseful basis for decision, their binding authority soon became limited since-inpractically every case-a question may arise whether or not those provisionsconform to the higher law. It is the ordinary judge who, at least in the first instance,must produce an answer, and such an answer often requires the judge to find thecorrect interpretation of both the statutory provision and the constitutional (orsupranational) norm. In effect, it is not only the constitutional court but also thesupreme court that interprets the constitution, just as it is not only the supremecourt but also the constitutional court that interprets ordinary statutes.

The foregoing developments demonstrate that no genuine separation of consti-tutional jurisdiction and ordinary jurisdiction is possible in a modem Rechtsstaat.The new role of constitutional norms may be beneficial for the protection of indi-vidual rights and liberties, but it also complicates, to a considerable extent, rela-tions within the judicial branch. There are several areas in which both jurisdictionshave to act in parallel, and only a very few constitutions provide for the clear delim-itation of their tasks. No wonder that, from time to time, positions taken by the con-stitutional court may differ substantially from those preferred by the supreme court.The situation requires both parties to establish some reasonable mode of coexist-ence; however, it also produces numerous conflicts and disputes. In other words,constitutional courts and supreme courts are traveling on the same road, but notnecessarily according to the same rules and not necessarily in the same direction.

I Werner Heun, Verfassungsrecht, id. at 109.

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2. Experience: Some examples of judicial cohabitationIt has not always been easy to elaborate a modus vivendi for the courts. In mostcountries, the constitutional courts emerged long after the supreme courts hadalready established their authority. It was quite natural that the lower courtswere ready to accept that authority and to follow the case law of the supremecourt. Thus, in case of a conflict with the supreme court, the arguments of theconstitutional court had to be genuinely convincing if they were to be acceptedby the lower courts.

Almost all countries of Europe have experienced different types of conflictsbetween their higher courts. It may be useful first to recall some examples and,only later, to propose some conclusions of a general nature.

2.1. GermanyThe German Constitutional Court, the Bundesverfassungsgericht, was the firstentirely new constitutional jurisdiction established in postwar Europe. It emergedas a total newcomer, since no developed procedures for judicial review had everexisted in German constitutional history. It encountered the five branches of spe-cialized courts already well established in the pre-Nazi tradition of the GermanRechtsstaat, headed by five federal supreme courts. The situation of the Constituti-onal Court was, therefore, difficult; at the same time, however, the other jurisdic-tions were in a process of reconstruction and, unlike the new ConstitutionalCourt, had to overcome the failures of their immediate past. In addition, theclimate of postwar reforms offered the new Court a considerable chance of suc-cess, especially as one of the basic premises of the new system was the recogni-tion of the supremacy of the Constitution. The Court was meant to be the mostimportant judicial instrument in preserving that superiority; accordingly, itwas vested with powers broader than its Austrian or Italian counterparts. Inparticular, the Federal Constitutional Court Act 12 introduced the procedure bywhich constitutional complaints could be lodged by individuals against finaljudgments of the specialized courts.

Within the next ten years, the German Constitutional Court managed to findits way to the very summit of the new constitutional system. It began by estab-lishing its structural independence: first, with respect to the executive branch;1

12 Gesetz uber das Bundesverfassungsgericht vom 12. Maz 1951 [Statute on the Federal Constitu-

tional Court in the version of 12 March 1951], BVerfGG, BGBI. I at 243.

11 Initially, the Constitutional Court (like all other courts in Germany) was included in the admin-istrative and budgetary structure of the Federal Ministry of Justice. In 1952, the Court demandedindependence from the executive branch (so-called Statusdenkschrift: see 6 JAMUCHRc DES oFrENIUIEN

Rsc'ms 144 (1957)), and it has since managed to consolidate its position as a "constitutional organof the state."

50 I-CON Vol. 5: 44


then, with respect to the supreme courts.14 Simultaneously, the Court beganto develop the concept of the direct applicability of the Constitution (itsprovisions on fundamental rights) and to impose that concept on other seg-ments 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 (19 5 7) 15and Luth (19 5 8),16 the Court extended the applicability of constitutional com-plaints to all the situations that entailed conflicts with a general right to "indi-vidual liberty," and it developed the concept that fundamental rights create anobjective order, organized around certain general values and principles.Moreover, it was in this way, and in this context, that the Constitution acquireda so-called radiation effect upon private law relations.

There is no need to recall those well-known developments in detail. It issufficient to note that they had a profound impact on relations within thejudicial branch. As recently summarized by Robert Alexy, the Court's ap-proach to the interpretation of fundamental rights, or Grundrechte, resulted ina gradual constitutionalization of the whole legal system. The ConstitutionalCourt as well as the specialized courts participated in that process, and theirfunctions could not but overlap to a considerable degree.17

14 The first important controversy arose around the procedure of incidental review of constitution-

ality. The FCC Act provided that any court could, at any stage of the judicial process, refer a consti-

tutional 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 officialcollection of the Bundesgerichtshofs 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 five supreme court presidents addressed a noteof 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 ARCHrV DES oFLENTLUcHEN REcrrs 189-192 (1990). Since then, it remains within the

discretion of the Constitutional Court to seek opinions from the supreme courts: see RenateJaeger & Siegfried Bross, Die Beziehungen zwischen dem Bundesverfassungsgericht und den ubrigen

einzestaatlichen Rechtsprechungsorganen [THE RELATIONSHIP BEWE THE FEDAL CONsTrrrTrIONAL COURT

AND OTHER INDIDUAL STATE JUDICIAL ORGANS], 11 EuROPAISCHE GRUNDRECHTENZEITUNG 31 (2004).

IS Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] January 16, 1957, 6 Entsc-

heidungen des Bundesverfassungsgerichts [Decisions of the Federal Constitutional Court]

[BVerfGE] 32-45.6 BVerfG, January 15, 1958, 7 BVerfGE 198-230.

17 Alexy, supra note 10, at 10-12.

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No clear indication as to the delimitation of the functions and powers of thosecourts could be found in the written text of the Basic Law. The legal doctrine sug-gested several proposals, in particular, the concept of "specific constitutionallaw" and the test for the lawmaking nature of judicial solutions of individualcases."i The jurisprudence of the Constitutional Court tacitly accepted those"Formels"; none of them, however, managed to find a clear implementation inthe 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-tain resignation. 9 While the Court keeps emphasizing that it must not act as aSuperrevisionsgericht (reexamination court), in practice, its review is far-reaching,venturing even into the examination of whether a judicial assessment of factshas been arbitrary. Nevertheless, only a tiny fraction of complaints are success-ful.20 It demonstrates that, in reality, the Constitutional Court only rarelyquashes decisions of ordinary courts, assuming the role of a court of cassation.

The cassation function of the procedure of constitutional complaint remainsless articulated: More significant is the "persuading" or "directing" functionwhereby the Court rules on the manner of interpretation and application ofa particular fundamental right,21 and the specialized jurisdictions follow theCourt voluntarily. Thus, the direct application of the Constitution (of itsprovisions on fundamental rights) is present in the decisions of all thecourts and judges. The Constitutional Court, while preserving the last word if acontroversy arises, no longer claims a monopoly over application of theConstitution 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 B VerfG in der Gerichtsbarkeit, in IHI: HANDBUCH DES STAATSRECHTS DER BRD 122 5-1226(Josef Isensee & PaulP. Kirchhof eds., C.F. Mdiller Verlag 2004),

19 Hans-Joachim Koch. Bundesverfassungsgericht und Fachgerichte [Federal Constitutional Court and

Courts for Specific Subject Matters], in RECHTSTHEORIE UND RECHTSDoGMATIK Em AusTAuscH [ExcHANGE

BErwEEN LEGAL THEORY ANT LEGAL DOGMATSM] (Wildfried Erbguth, Friedrich Miuller & Volker Neumanneds., Duncker & Humblot 1999) 13 7. See also Jorg Berkemann, Das BVerfG und "seine" Fachgerich-tsbarkeiten [The Federal Constitutional Court (BVerfG) and "its own" jurisdiction over specific subjectmatters], 56 DAs DEUTSCHES VERWALTUNGSBLArr 1036 (DVBl 1966); Georg Hermes, VVDStRL, supranote 10, at: 146.

20 As shown by Wolfgang Hoffmann-Riem (Nachvoilziehende Grundrechtekontrolle. Zum Verh-

altniss von Fach- und Verfassungsgerichtsbarkeit [Monitoring of fundamental rights explained:On the relationship between specific subject matter and constitutional law jurisdiction], 128 AoR177 (2003) in 1999, a year when the Bundesgerichtshof issued some 7000 judgments, applicantsprevailed 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 thelaw 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 overspecific subject matter], 51 NEuEJuis'rnscH WocHscHRr 938 (1998).

52 I-CON Vol. 5: 44


At the same time, however, there is seemingly endless debate as to the limitsof the Court's review of the specialized jurisdictions. Already the Luth and Elfesdecisions, while praised by many constitutionalists, have evoked criticism aswell. This criticism has persisted for the five decades that followed these rulingsand is clearly still present in current discussions. 23 From time to time, it is alsoreflected in the jurisprudence of the specialized courts. It is true that instances ofan open refusal to follow the Constitutional Court are exceptional, 24 and that (asis not the case in some other countries) the German Court is adequately equippedto impose its legal positions on other jurisdictions. Nevertheless, there are exam-ples of divergences that have remained unresolved for several decades,2 as wellas examples of occasional collisions, sometimes provoking heated exchangesof views. 26 Although the modus vivendi between the supreme courts appearsmore calm and predictable in Germany than in some other countriesand 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 alsoStephan Korioth, Bundesverfassungsgericht undRechtsprechung (Fachgerichte) [Federal Constitutional

Court and jurisprudence (Courts for Specific Subject Matters)], in FEsTscHRinr 50 JAHRE BuNDuSvEuFAS-SUNGSGERICHT [FETScHiu': 50 YEARS OF THE FEDERAL CONSTrnrTIONAL COURT] 57 (Peter Badura & HorstDreier 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 tobe 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 article14. 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 toaccept this, but, unwilling to forsake its own jurisprudence, it established that the right to compen-sation results from principles of customary law. It eliminated the constitutional dimension (andthus the direct jurisdiction of the Constitutional Court). See Hans Joachim Faller, supra note 14, at199-202. Quite recently, the Constitutional Court experienced some problems with assuring fullcompliance of the penal courts in respect to the length of detention preceding a final conviction, inparticular, postconviction by the first instance court. The local courts have not always been readyto follow the position of the Constitutional Court; in consequence, the Court had to quash theirdecisions and to remind them of the binding nature of its constitutional interpretation. See, inparticular, the decisions of BVerfG, February 22, 2005, 2 BvR 109/05, http://www.bverfg.de/entscheidungen/rk20050222_2bvrOlO9O5.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 Failer, 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_lbvrl9O502.html (last visited Oct. 16, 2006), 1-72.

January 2007

powerful jurisdictions in Europe, the problem of relations within the judicialbranch is nonetheless far from a generally accepted solution.

2.2. ItalyIntercourt relations in Italy are more temperamental. The first important con-troversy emerged almost immediately at the conclusion of the eight-year proc-ess creating the Italian Constitutional Court, the Corte Costituzionale. To makea long story short 2 7 it suffices to note that the Italian system of judicial reviewdoes not recognize the procedure of constitutional (that is, individual) com-plaint and operates, first of all, by means of "legal questions" submitted to theCourt by the courts of general jurisdiction. Such referrals may pertain only tothose statutory provisions that would form a basis for the court's resolution ofa pending case. Once such a question is submitted, the Constitutional Courtdecides on the constitutionality of the referred provision, and the Court's rul-ing becomes part of the law of the case. This has always been clear with regardto a "simple" ruling of unconstitutionality, since such a ruling invalidates thestatute with a universally binding effect. However, the Constitutional Court,since its early years, has tried to avoid rulings of unconstitutionality. Ratherthan invalidate laws, the Court has sought to develop so-called interpretativerulings 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 theConstitutional Court.28 Those known as "admission" (sentenza interpretativa diaccoglimento) state that the provision, if read in a certain way, is unconstitu-tional. Since this excludes only one possible interpretation, the law remainsformally intact; only the interpretation that has been declared unconstitutionalmay 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 con-stitutional. This means that from multiple logically possible meanings of thetext, the Constitutional Court designates one that conforms to the Constitutionand rejects all others. The problem is that for the Constitutional Court to issuean interpretative ruling, it must first establish the interpretation of the provi-sion under review. If the interpretation adopted by the Constitutional Courtdiffers from the one established in the jurisprudence of the ordinary courts, theauthority 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 ZAGREBHESKY, LA GISTIZaA CosTrIziONALE [CONsrrrtmoNAL ADJUDICATION] 1 56

(II Mulino 1988); TimRoY Di MANIO, LX FJUE CONSTTUMONNEL Lr LA TECHNIQUE DES DECISIONS "INTERPRETA-

TIVEs" EN FRANCE Err EN ITALIE [THE CONSTITUrIONAL JUDGE AND THE TECHNIQUE OF "INTERPRETATIVE" DECISION IN

FRANCE AND ITALY] (Economica 1997); Enzo Cheli & Filippo Donati, Methods and Criteria of Judgmenton the Question of Rights to Freedom in Italy, in HuMAN RIGHTs AND JuDICIAL REVIEW: A CONPARATIVE

PEasPrvE 235-236 (David M. Beatty ed., Springer 1994).

54 I-CON Vol. 5: 44


In 1958, the Italian Court of Cassation decided certain questions related to the

procedure of "summary investigation" and ruled that some fair-trial guaranteesneed not have full application to that type of proceeding. In February 1965, thesame issue was submitted to the Constitutional Court, which refused to declarethe contested provisions unconstitutional and spelled out how those provisionsshould be interpreted by the criminal courts. However, this interpretationrequired 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

Constitutional Court. Two months later, the latter Court-using the technique ofinterpretative admission-responded by declaring the contested provisionunconstitutional insofar as it made possible the interpretation adopted by theCourt of Cassation. This settled the question of constitutionality; at the same time,however, it remained unclear to what extent the Constitutional Court's decisionwas retrospectively applicable. At the end of 1965, the Court of Cassation decidedthat the applicability of the Constitutional Court's ruling was only prospective."The debate, which caused uproar and led to a very serious conflict between thetwo courts, was resolved by the Judgment No. 49/1970 of the ConstitutionalCourt, which withdrew and acknowledged that the issue of retrospective applica-tion of decisions on illegality is not a matter of constitutional law."2 9

In the decades that followed, the problem of interpretative judgments, whilenot resolved in a clear manner, lost most of its pertinence. Both courts tried toavoid open conflicts. On the one hand, the growing authority and importanceof the Constitutional Court prompted the Court of Cassation to accept its inter-

pretations of statutes. On the other hand, the Constitutional Court began todevelop new techniques of constitutional interpretation, in particular, the "liv-

ing law" concept, which assumes that the Constitutional Court does not reviewcontested legal provisions in the abstract but, rather, as they have been alreadyapplied in the case law of other superior courts. The constitutionality of legalprovisions is also assessed in relation to their content as established within the

existing legal reality. In other words, the Constitutional Court accepts theCourt of Cassation's responsibility for statutory interpretation, but it reservesfor itself the last word as to whether that interpretation remains within con-stitutionally prescribed limits. At the same time, both judicial case law andlegal doctrine agree that interpretative decisions on constitutionality do nothave a universally binding authority and are effective "only insofar as theConstitutional 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 PRESMENTS OF SUPREM COURTS OF CRNURAL

AND EASTERN EUROPEAN CoUNmES 9 (Council of Europe 1997).

10 Giancarlo Rolla & Tania Groppi, Between Politics and the Law: The Development of Constitutional

Review in Italy, CoNSTrrUnONAL JUscE, supra note 2, at 151.

January 2007

respect to the interpretation of the living law, it is, in fact, the Court of Cassationthat retains the last word. 3'

A recent controversy between the two courts illustrates that their modus viv-endi remains fragile and, to a large extent, depends on the goodwill and self-restraint of both parties. In this instance, the courts clashed over theinterpretation of article 303 of the Code of Penal Procedure (specifically, in con-nection with the calculation of the maximum term of preliminary detention). In1998, the Constitutional Court declared that article 303 must conform to arti-cles 3 and 13 of the Constitution and indicated the correct interpretation of thecode.32 The Court of Cassation, doubting the correctness of that interpretation,directly challenged33 the constitutionality of article 303 before the ConstitutionalCourt. The Constitutional Court dismissed the request, reiterating that article303 should be interpreted in the manner previously stated, under whichit remained constitutional.34 The Court of Cassation refused to follow that inter-pretation, observing:

The Constitutional Court's interpretative decisions of rejection do nothave an erga omnes effect. They are, in this regard, distinct from findingsof the constitutional illegitimacy of a provision under review. That is whythe former contain only a negative message [holding that no unconsti-tutionality has been established] and are determinative only for the caseon which the question of constitutionality has been referred. In all othercases, the ordinary judges retain their power and duty (provided for inArticle 101 sec. 2 of the Constitution) to interpret, autonomously, thecontent of legal norms.3

31 Alessandro Pizzorusso, Prdsentation de la Cour constitutionnelle italienne [Overview of the Italian

Constitutional Court], 6 Ls CAMs DU CONSeL CONnTrITmONNL 31 (1998).

32 Corte cost., 7 July 1998, n.292 (subsequently confirmed by decisions of 19 Nov. 1999 n.429,

19 Jun. 2000 n.214 and 22 Nov. 2000 n.529).3 3 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 efficiacia erga omnes,a differenza di quelle dichiarative dell'illegittimita costituzionale di norme, e pertanto determinanosolo un vincolo negativo per ii 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 ledisposizioni 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 thedecision of Corte cost., cass., 22 July 2005 n.229, it found article 303 unconstitutional as inter-preted by the Court of Cassation. See CASSAZaoNE PENAu 3246 (2005); Guiseppe Romeo, Meglio tardiche mai? [Better late than never?], id., at 3254-3259. Thus, the Constitutional Court affirmed theconcept of "living law" and left the resolution of the problem to the legislature.

56 I-CON Vol. 5: 44


Fifty years of coexistence by the superior courts in Italy failed to produce aclear pattern of relations, even if-in real life-the delimitation of their respec-tive 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-specificfactors. On the one hand is the predominance of incidental (concrete) review in

the procedures before the Constitutional Court. This means that the docket ofthe Court remains largely dependent on the willingness of ordinary judges torefer constitutional questions to it for a decision. On the other hand, the rulingsof the Constitutional Court precede the judicial resolution of the case uponwhich a referral has been made. Hence, unless the Constitutional Court annulsthe 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 constitutionalityof final judgments adopted by other jurisdictions, and that is why the Con-stitutional Court may, from time to time, experience problems in convincingthe other superior courts to follow its legal positions.

2.3. PolandThe Constitutional Tribunal of Poland has been in existence since 1986 andrepresents one of the best-established constitutional jurisdictions among the"new democracies" of Europe.16 The Polish system of judicial review rests on

three basic procedures: abstract review, "legal questions" referred by ordinaryor administrative judges deciding individual cases, and constitutional com-plaints that are lodged with the Tribunal once appellate procedures have beenexhausted. It is the abstract review procedure that has traditionally played themost important role in the operations of the Constitutional Tribunal The pro-cedure of constitutional complaint seems to have become ever more popular,however, although it was only recently introduced by the 1997 Constitutionand only in a limited version.

The other superior courts in Poland are the Supreme Court and the HighAdministrative Court, each exercising independent jurisdiction within its area

of competence. The Constitution determines, generally, the powers of the supe-rior courts. However, at least two serious problems remain controversial in thejudicial practice.

The first is related to the very power of the judicial review. The Constitution

clearly provides that the Constitutional Tribunal is vested with the competenceto review ordinary statutes and other legal regulations and to annul themin case of unconstitutionality or nonconformity with the international

instruments to which Poland is a party. Such decisions of the Tribunal havean erga omnes effect and are final and universally binding, that is, also bindingon all other courts, the Supreme Court included.

16 See, e.g., the assessment of Schwartz, supra note 2, at 49.

January 2007

While those powers of the Constitutional Tribunal have never been in doubt,a controversy arose in the mid-19 90s as to the role of other courts in reviewingthe constitutionality of statutes. Each court, when resolving an individualcase, has a right and a duty to consider whether the statutory provisions onwhich judgment will be based are in conformity with the Constitution. Once ajudge, 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 takenits decision, the referring judge must apply it to the case. The question iswhether the competence of an ordinary judge may go beyond referral andinclude, as well, the possibility of independently determining the issue of con-stitutionality. This is not contested with respect to the judge finding a disputedprovision constitutional. However, some judges and scholars are of the opinionthat ordinary courts also have a power of "incidental review"-meaning thatthey may refuse to apply any statutory provision that is, in their opinion,unconstitutional. According to that logic, the judge should refer the issue tothe Constitutional Tribunal only if the interpretation remains doubtful. But ifthe judge has no doubts about the unconstitutionality of a statute, she has thepower simply to decide the case. Such "incidental" refusal to apply a statutedoes not collide with the prerogatives of the Tribunal because it does not affectthe general validity of the statute and, hence, respects the Tribunal's exclusivepower to annul unconstitutional statutes. While there have been few examplesof judgments (mainly coming from the Labour Law Chamber of the SupremeCourt) in which ordinary judges actually refused to apply statutes deemedunconstitutional, among the other higher courts only the ConstitutionalTribunal has taken the uniform position that there is no constitutional basis forsuch actions. The Supreme Court and the High Administrative Court still avoidtaking any definitive stand on the matter. Their case law accepts only that,once the constitutionality of a statute has been determined in a judgment ofthe Tribunal, this finding must be followed by all other courts and judges.3 7

This controversy illustrates the activist manner in which Polish superiorcourts (or, at least, some of their judges) approach their role in constitutionaladjudication. It is not typical of countries in the region. This Polish "anomaly"results from a combination of different factors: the original limitations on thepowers of the Polish Constitutional Tribunal, the scholarly orientation of theSupreme Court's personnel, and the tradition of independent application of inter-national treaties by the Supreme Court and the High Administrative Court. 38

11 For a more detailed presentation, see Lech Garlicki, Vingt ans du Tribunal constitutionnelpolonais[Twenty years of the Polish Constituional Tribunal], in MELANGEs FAVORJ [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, inTHE CONSTmON iN PRVATE RELATIONS: EXPANDING CoNsTTUrto.AusM, 236-240 (Andrs Saj6 & Renata

Uitz eds., Eleven International 2005).

58 I-CON Vol. 5: 44


Until now, this has not produced any open conflicts with the Tribunal, andexamples of independent judicial refusal to apply "unconstitutional" statutesremain isolated and limited to matters not yet decided by the Tribunal.

A more sensitive area of confrontation relates to the powers of statutoryinterpretation. In principle, the application and interpretation of ordinary stat-utes are the province of the Supreme Court and to the High AdministrativeCourt. However, in Poland, as in many other countries, the process of constitu-tional adjudication necessarily involves the interpretation of statutory provi-sions by the Constitutional Tribunal. Already in the mid-1990s, the Tribunalhad begun to develop the technique of "interpretative decisions," which con-firm that a contested provision is constitutional only if understood in a mannerprescribed in the operative part of the judgment.39 Almost immediately, a ques-

tion arose as to whether other courts and judges were bound to follow theinterpretations established by the Constitutional Tribunal. On two occasions,in 1996 and 199 7, the Supreme Court openly refused to apply interpretativeresolutions of the Tribunal, observing that, under the Polish Constitution, thejudges are bound "only by statute." The Supreme Court's position was thatother courts should apply interpretative resolutions of the Tribunal only whenthey agreed with the latter's interpretation. 40

The same discussion continued under the 199 7 Constitution, relating to theinterpretative decisions of the Constitutional Tribunal. There has been no case,as yet, where the Supreme Court has refused overtly to accept an interpreta-tion established by the Tribunal. But in numerous obiter dicta, the SupremeCourt judges, when discussing the authority of interpretative decisions, haveobserved that-under the delimitation of competences established in the 199 7Constitution-they are not obliged to follow the Tribunal's interpretation. Onthe other hand, the Tribunal, on equally numerous occasions, has emphasizedthat the Constitution allows for the use of "interpretative decisions," and thatall 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 "inter-

pretative 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 establish-

ment of "universally binding interpretation of statutes" (see GEORG BRUNNm & LEC GARUCm, VERAs-

sUNGsGEmcrrSBAMmT IN POLEN: ANALYSEN UND ENTSCHmUNGSSAMMUNG 1986-1997 [CONSrmnONA LAW

JURSDIMTON IN POLAND: CoLLEcrm ANAYsEs AND DEcLsIONS 1986-1997] ) 67-68 (Nomos 1999). It was

the exercise of that latter competence that first produced conflicts between the Constitutional Courtand the Supreme Court. The 1997 Constitution abolished the procedure of "interpretative resolu-

tions," but, at the same time, it provided that the "judgments of the Constitutional Court (i.e., deci-

sions concerning constitutionality of statutes) are final and universally binding." Potsh CONsT. art.

190, § 1.

10 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, HIARN 93/95 (OSNAPiUS 1996, No. 23, item 352).

January 2007

included in the operative portion of a Tribunal judgment. At the same time, theTribunal adopted and developed the living law approach: once a clear interpre-tation of a legal provision has already been established in the case law of theSupreme Court (or the High Administrative Court), the Tribunal refrains frommaking its own interpretation and assesses the constitutionality of the existinginterpretation. Nevertheless, there remains a significant area of potential con-flict between the courts.41

There are two principal obstacles to the elaboration of a consistent modusvivendi between the two Polish courts. On the one hand, the constitutionaldelimitation of the competences of different courts is not clear. The authors ofthe 199 7 Constitution did not provide a solution; they were unwilling to accordthe Constitutional Tribunal a superior position within the judicial branch. Asa result, each of the courts can claim the same competences. On the otherhand, the Tribunal lacks a mechanism by which to impose its legal positions onthe other Courts. It is true that the Polish Tribunal, unlike its Italian homo-logue, has the power to decide on constitutional complaints. Since such com-plaints are admissible only after appellate procedures have been exhausted, the

Tribunal is usually confronted with judgments already made by the SupremeCourt or by the High Administrative Court. But the Polish version of constitu-tional complaint remains limited; it does not allow for the possibility of directlychallenging the constitutionality of an individual judgment or decision. Theconstitutional complaint may be raised only against the legal provision onwhich an individual judgment is based. Thus, the Tribunal reviews the law perse, but not the manner of its application in an individual case. Furthermore,even when the Tribunal finds that the contested statute is, indeed, unconstitu-tional, it does not automatically invalidate the individual judgments and deci-sions that applied that provision. The party who prevails in the constitutionalcomplaint procedure must then petition the ordinary court to reopen his orher case, and that court may not be ready to take into account all aspects ofthe Tribunal's judgment.4 2

Poland may be regarded as a unique example of "constitutional activism"on the part of ordinary judges, but, with respect to the existence of conflictbetween the superior courts, it is no different from several other countries ofthe region. In the Czech Republic, for example:

[T]he issue of the binding force of the Constitutional Court's precedentsgrew into a major systemic crisis.... The Czech Supreme Court open-ly revolted against the Constitutional Court's decisions, claiming that

41 For more detailed presentation, see generally Garlicki, supra note 3 7.

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 Tribunalby adopting necessary amendments to the Code of Civil Procedure. See Garlicki, supra note 3 7.

60 I-CON Vol. 5: 44


the latter's opinions are not binding on the Supreme Court since theContinental legal system was not based on the system of precedents.The ordinary judiciary was supported and praised by a part of a domesticlegal scholarship, deeply suspicious of the Constitutional Court and its

new philosophy... . The Constitutional Court repeatedly quashed deci-sions of the ordinary judiciary in which the ordinary courts had opposedthe constitutional jurisprudence. Although tensions have eased since2000, the issue is still far from being resolved.43

Tensions of a similar nature have also become apparent in other countries ofthe region, in particular, in Hungary,44 but also in Russia.45 Nor are such ten-sions foreign to Western European systems, despite profound differences intheir legal traditions and political history. The expression "war of judges" was

11 Zdenek Kuhn, supra note 38, at 223-225. See also Pavel Holldnder, The Role of the Constitutional

Court for the application of the Constitution in case decisions of ordinary courts, 86 ARcnIv FUR REcsrrs-

uNa SozILPHILmsoPHIE 537 (2000); WojcmcH SADURsI, RIGHTS BEFORE CoURTs 21-23 (Springer 2005).

See also Jiri Priban, Judicial Power vs. Democratic Representation, in CoNsTrnrnoAIAL JuSncE, supra note

2, at 380 (observing that "[t]he main conflict 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").

11 The Hungarian Constitutional Court, under the presidency of Ldszl6 S61yom, ranked among the

most active courts in the region. While it does not have direct powers to review the constitutional-

ity of individual judicial decisions, it has developed several techniques of review of the jurispru-

dence of ordinary courts (in particular, the "living law concept"). See Schwartz, supra note 2, at 83.

Conflict 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 Gibor Halmai, The Hungarian Approach to Constitutional Review: The End of Activism? in CONS'rU-TIONAL JUSTICE, supra note 2, at 204-207.

45 The Russian courts attempted to establish their autonomous right to set aside unconstitu-

tional statutes. As Sadurski notes, "[Riussia provides a good example of such a conflict; it re-

sulted in a victory for the Constitutional Court which fiercely 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 constitu-

tionality, 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 note43, at 20-21.

January 2007

recently used in connection with developments in Belgium,46 while theAustrian Supreme Court expressed clear opposition to proposals to extend theprocedure of constitutional complaint, 47 and in Spain an endemic conflict sur-faced suddenly in 2004.4

1

In the specific context of this discussion, the constitutional court of Franceis in the weakest position. Since the Conseil Constitutionnel decides on theconstitutionality of statutes only in a procedure of a "preventive review," thereis no direct link between the jurisdiction of the Conseil and the judicial imple-mentation of statutes. This solution reflects the initial resolve to separate theConseil from the judicial branch. However, at least since 19 71, the Conseil hasdeveloped a vast jurisprudence on fundamental rights and resorts frequentlyto various techniques of "conforming interpretation" (interpretation conforme).Nevertheless, the viability of the Conseil's legal positions has depended on thevoluntary compliance of other jurisdictions; the Conseil is equipped with noprocedural mechanism by which to impose its interpretations on the Courde Cassation and the Conseil d'ttat. That the Conseil Constitutionnel finally

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 suprmes, la Cour de cassation et le Conseil d'ttat, connaissent desmoments de tension. L'autorit6 de plusieurs arr&s de la juridiction constitutionnelle se heurte A deveritables resistances." ["Not everything goes better in the best of worlds. The relations betweenthe Court of Arbitrage and the two other supreme jurisdictions, the Court of Cassation and theCouncil of State, experience moments of tension. The authority of numerous opinions of theconstitutional jurisdiction runs into real resistance."] Francis Delp6r6e Belgique, XX ANNUAIRE ir-NATIONALE DE JUSTICE CONSTITTmONELLE 176 (2004), who quotes the opinions of Jacques Van Comper-nolle and Marc Verdussen.

17 Herbert Steininger, Empfiehlt es sich, die Zustandigkeiten des Verfassungsgerichtshofs durchEnfuhrung einer umfassenden, auch Akte der Gerichtsbarkeit erfassenden Individualverfassungs-beschwerde zu erweitern? [Is it advisable to expand the responsibilities of the Constitutional Courtthrough the introduction of an individual constitutional complaint that is comprehensive and cov-ers acts of jurisdiction?], in VFAssuGcsrAG [CONsTrrnoNAL DAILy] 1994 (Verlag Osterreich 1995).

41 "After more than a quarter of a century since the coming into force of the 19 78.Constitution, therespective place of each of the Spanish top courts, far from being generally accepted, has evolvedinto a far-reaching institutional conflict. In February [2004] the then three living former presi-dents 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 fine of 500 euros each." Pedro Cruz Villal6n,Conflict between Tribunal Constitucional and Tribunal Supremo--A National Experience, in THE FUTUREOF TE EUROPEAN JUDIciAL SYsTEm IN A CoMINR'Arvw PERsPEcnvE (Ingolf Pernice, Juliane Kokott, CherylSaunders eds., Nomos 2006) 111; see also Francisco Javier Matia Portilla, Espagne, XX ANNuAmNrERNATIONALE DE JUSTICE CONSTITUTIONNELE: ESPAGNE [CONSTrrroNAL JusrncE ANNUAL: SPAIN], 18 7-189(2004); Leslie Turano, Spain: Qui Custodiet Ipsos Custodes?: The Struggle for Jurisdiction between theTribunal Constitucional and the Tribunal Supremo, 4 INT'L J. CoNsT. L. (I'CON) 151-162 (2006)(offering another interesting presentation of this conflict and discussing several earlier clashesbetween the two courts).

62 I-CON Vol. 5: 44


managed to win recognition from other jurisdictions49 must be attributed tothe intellectual caliber of the Conseil's case law as well as of those, who-likeLouis Favoreu-provided a conceptual framework for that case law. 0

3. Conclusion: Endemic tension or unavoidable conflict?

Several general observations may be submitted in conclusion.

3.1. A systemic tensionFirst, the existence of a certain level of conflict or, to put it more mildly, certaintensions among the courts constitutes a necessary component of every systemof centralized judicial review. Once a distinct constitutional court coexists withone or more supreme courts, this cannot but produce problems in mutual rela-tions. Hence-and this is my first concluding remark-the presence of tensionsamong the highest courts is systemic in nature.51 In other words, it would beerroneous to regard such tensions as an aberration that should not exist in thejudicial system of a democracy. A state of persistent or endemic tension seemsto be as natural for the developed democracies as for the postcommunist new-comers. Sometimes it may develop or, rather, degenerate into a "war of courts,"and only then would the relations between courts approach an aberrationallevel of conflict. But it would be naive to suggest that any pattern of coexistencecould be completely free of tensions and problems. While the Kelsenian modelhas proven to be efficient and attractive in Europe, it contains also some built-in deficiencies.

It was recently observed that there is "a more general trend that wheneverconstitutional courts have been established in post-authoritarian countries, apattern of conflict between these courts on the one hand and the supremecourts (plus other ordinary courts) on the other, has emerged. '5 2 This may be

4 See, e.g., Louis L. Pavoreu & Thierry Renoux, Rapport gdn~ral introductive, [General introductory

report] in LA CoR DE CASSATION ET LA CONSTITUTION DE LA RE UBuOuE [ThE COURT OF CASSATION AND THE

CONsTITImoN OF THE RePiuc] (Presses Univ. Aix-Marseille 1994); GRNoEs DECISIONS DU CONSEIL CONSTI-

TUTIONNEL [LANDmARu DECISIONS OF THE CONsTItTONAL COUNCIL] 163-169 (Louis Favoreu & Loic Philip,

eds., Dalloz-Sirey 13th ed. 2005).

50 But conflicts between jurisdictions remain constantly present, particularly in the traditional

area of the civil law. See, for illustration, an exchange of views of Franqois Luchaire, Lesfondements

constitutionnels du droit civil [Constitutional bases of civil law], 2 REVUE TRIMMsRM.E DE DROrr cnla

245 (1982); Christian Atias, La civilisation du droit constitutionnel, 7 REVUE FRAN AISE DE DROrr CONSTI-

TrunoNH l [R.F.D.C.] 435, 436 (1991) (Fr.); Jean Yves Cherot, Les rapports du Droit Constitutionnel et

Droit Civil, rdponse d Christian Atias [Constitutional and Civil Law Reports, a Response to ChristianAtias], 7 R.F.D.C. 439, 441 (1991).

s1 Similarly, in particular, Heun, supra note 11, at 110-111; Turano, supra note 48, at 162.

12 Sadurski, supra note 43, at 21.

January 2007

true, but it should not be forgotten that the usefulness of the comparative per-spective, here, remains limited due to the fact that almost all the constitutionalcourts in Europe have emerged in postauthoritarian countries. France andBelgium present the only examples of constitutional jurisdictions that were notestablished as one of an array of democratization devices. But both of thosejurisdictions are hardly typical: the Conseil Constitutionnel emerged in therather particular context of the beginnings of the Fifth Republic and primarilyundertakes preventive review; the Cour d'Arbitrage emerged from the equallydistinctive process of Belgian regionalization.

However different the basic structure of their relations with other courtsfrom what is found in ostensibly classic systems of constitutional review, con-flicts between courts nonetheless occur in those two countries. Thus, the basisfor such conflicts seems to lie in more general structural problems and notsolely in the transition from an authoritarian history. Although a clear con-nection between democratic transition and the establishment of a separateconstitutional court has been observed,"3 this does not imply that, in countriesnot haunted by their past, the evolution of relationships among courts is neces-sarily conflict-free.

3.2. The propensities of judges and the pervasiveness of constitutionsThe existence of tensions and conflicts between the courts can often be tracedto the natural inclination of judges to expand the scope of their authority. Overthe last decades, many courts, constitutional as well as supreme, have mademany efforts to exploit their powers to the limit or, sometimes, even beyond thelimit. While it seems legitimate to ask "whether it is prudent to make use ofpower that will lead to political catastrophe," 1

4 the desire to amass powers andcompetences is an aspect of human nature as well as of public bodies. Factorssuch as professional self-esteem, 5 institutional dignity, and even simple dislikeof competitors 6 may also contribute to a certain expansionism on the part ofthe courts. In brief, there is a subjective element in developments at the highestjudicial level.

51 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 ofLaw in Political Transformation, 106 YALE L. J. 2032 (1996); Sadurski, supra note 43 at 40-58.

11 BRUCE AcKERmAN, THE FTrruR OF LImAL REVOLtrnON 143 (Yale Univ. Press 1992). Ackerman ob-serves further: "[s]urely it is well within the court's capacity to construe its statutory jurisdictionnarrowly."

5sLeslie Turano, supra note 48, at 161.s6Several authors note, in this context, differences in the professional background and, as a conse-quence, in the "constitutional temperament" of constitutional judges (who often come fromacademia, 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).

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However, the more basic reason for tension is an objective one, originatingin the evolution of the role of modern constitutions. Two developments, men-tioned in the initial section of this article, are particularly important factors.First is the judicialization of constitutions, whereby the constitution becomes alegal instrument directly applicable before all courts and, hence, a useful toolin disputes before courts. The second element is the constitutionalization ofspecific areas of law, meaning that ordinary statutes are applied and inter-preted on the basis of constitutional principles and provisions. This has theeffect of making the constitution relevant, as well, to disputes arising withinthe traditional areas of law. In effect, it is impossible to delimit any clear borderbetween 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 ofconstitutional courts and those of ordinary courts are bound to overlap, andthis cannot but produce tensions and conflicts.

Constitutional courts are sometimes depicted as newcomers, arriving atground already occupied by the supreme courts and trying to interfere withthe well-established practices of the judicial branch. This may be true, in thatsupreme courts have a longer history and greater experience than constitu-tional courts, just as it is true that traditional spheres of law have a longer his-tory and more-developed jurisprudence than constitutional law. But themodern understanding of a constitution emerged, at least in Europe, onlywithin the last six decades in the West and two decades in the East. This isexactly the age of most constitutional courts in the region. Thus, both the con-stitutional and the supreme courts have had to approach this new constitu-tional paradigm at the same time, and both have had to establish their place inthe evolving constitutional context. As long as we are in the domain of consti-tutional law, there is no reason to ascribe more seniority to the supreme courtthan to the constitutional court. This is particularly true for the postauthori-tarian 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 find statutes unconstitutional that is sometimes identified as themain area of conflicts between the courts.5 7 While no one challenges the consti-tutional courts' sole discretion to invalidate-with an erga omnes authority-unconstitutional statutes, other courts claim an independent competenceto examine the constitutionality of statutes and to refuse the application ofunconstitutional statutory provisions. Thus, the real conflict develops withinthe area of what may be termed "negative" lawmaking.

57 See Sadurski, supra note 43, at 19-25.

January 2007

This may be true in respect of some countries, the Polish example being oneof the most prominent. But, in several other countries (such as Germany andSpain), the ordinary courts show comparatively less interest in taking finaldecisions on unconstitutionality. All the partners within the judicial branchagree that this power should remain reserved to the constitutional court.However, the constitutional courts themselves do not regard the invalidationof statutes as their main tool in deciding constitutional issues. Quite often, theyseek, rather, to establish an interpretation of the statute in question that allowsit to survive judicial scrutiny. It seems that many, if not most, contemporaryconstitutional courts focus more on the constitutional interpretation of stat-utes than on declarations of unconstitutionality. Thus, the statute survives,although its meaning and scope of operation may change considerably in theprocess. In effect, constitutional courts act more often as positive lawmakersthan negative ones.

It is not necessary to raise here the question of the legitimacy of this versionof judicial review. Suffice it to say, this is the reality of the jurisprudential activ-ity of constitutional courts in most contemporary systems. It alters the tradi-tional balance of powers between the constitutional court and the parliamentand also has a profound impact on the relations within the judicial branch.Statutory interpretation has always been among the competences of the ordi-nary courts. While the incidence of creativism, so called, and positivism, socalled, has varied among different countries and different historical periods, ithas always been recognized, at least by the realists, that judicial interpretationentails some component of lawmaking. Once the process of the constitutionali-zation of particular areas of law had emerged, the courts began to use constitu-tional provisions in the process of statutory interpretation. This means thatboth the supreme court and the constitutional court strive, simultaneously, torealign the statutory law with the national constitution. However, conclusionsproposed by each of those courts may not always be the same. Thus-my nextconcluding remark-the main body of conflicts between the courts developswithin the area of interpretation, that is, within the area of positivelawmaking.

3.4. The weaker position of constitutional courtsThe outcome of those conflicts depends mainly on the general environment inwhich the judicial branch operates in a given country. The established rules ofthe political culture, the influence of the country's legal tradition, the author-ity of the national constitution, and the authority of the parliament delimitwhat area is left for the judicial branch and determine the ways and means ofconflict resolution. It is scarcely necessary to repeat that, in this respect, thereare profound differences among the constitutional court countries.

Also, the constitutional setting differs considerably from one country tothe next. From this perspective, the balance of power between the courts dependsmainly on the scope of competences vested in the constitutional court. All

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constitutional courts have the power of judicial review and invalidation ofunconstitutional statutes and statutory provisions. This gives them, effectively,the last word in conflicts with parliaments, yet it is still not enough to compelother courts to follow the "constitutional" interpretation of statutes as estab-fished by the constitutional court. The spectrum of other powers of, and proce-dures before, the constitutional courts varies considerably. It may be arguedthat only in those countries (Germany, Spain, Austria, the Czech Republic,Slovakia) that have adopted a genuine concept of constitutional complaint(Verfassungsbeschwerde)5 is the Constitutional Court sufficiently equipped toimpose its legal positions on other segments of the judicial branch. Only in thisway can the constitutional court set aside any judicial decision, if it finds that acourt has applied a statute in an unconstitutional manner. Other procedures donot offer such a possibility. The limited versions of the Verfassungsbeschwerde(Poland, Hungary, Russia) are focused on the review of statutory provisions anddo not allow for direct invalidation of individual judgments. The procedure ofincidental referrals of constitutional questions (Italy) is dependent on the initia-tive of the court a quo, and it leaves to the same court the final decision as to howto apply the constitutional court's judgment. Systems based on the abstractreview of statutes (France) separate the judicial review from adjudication ofindividual 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 ordi-nary courts has constructed the statute in a manner incompatible with theconstitutional interpretation established by the constitutional court. But sucha drastic option may be exercised only in exceptional circumstances and canhardly be reconciled with the court's preference to remain within the arena ofpositive lawmaking.

Constitutional courts were conceived as negative lawmakers and, as long asthey are willing simply to delete unconstitutional statutes, they are able toimpose their legal positions on all other branches of government and all othersegments of the judicial branch. On the other hand, the current activity ofmany constitutional courts has become focused, instead, on positive constitu-tional/statutory interpretation. The positive powers of constitutional courtsremain, however, less formidable. Only in a few countries have constitutionalcourts been given legal instruments adequate to control the case law ofordinary courts. Even in those countries, constitutional courts are unable

11 See Brunner's distinction of "echte" and "unechte" procedures of constitutional complaint inGEORG BRUNNER, VEFASSUNSGERIChITSBART IN POLEN [CONSTITUTIONAL COMPLAINT IN POLAND] 48-52

(Nomos 1999).

s9 The Conseil Constitutionnel, due to the French system of contr6leprgalable, is deprived even of such

possibility. Thus, persuasion seems to be the only way to convince ordinary and administrativecourts 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.

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logistically to intervene in all but exceptional cases. That is why the interpreta-tion of statutes (which, nowadays, always takes into account the provisions ofconstitutional law and supranational law) remains primarily within the prov-ince of the supreme courts. My final concluding remark is that constitutionalcourts appear as weaker participants in that process and, in case of conflict,they are not always able to deliver that last word. Thus, for the constitutionalcourt, dialogue and persuasion seem to be more effective than open conflictsand confrontations with other jurisdictions. 6 0

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.

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