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

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SYMPOSIUM

Constitutional courts versus

supreme courts
Lech Garlicki*

Constitutionalcourts exist in most of the civil law countries of Western Europe, and in
almost all the new democracies in Eastern Europe; even France has developed its
Conseil Constitutionnel into a genuine constitutional jurisdiction. While their
emergence may be regardedas one of the most successful improvements on traditional
European concepts of democracy and the rule of law, it has inevitably given rise to
questionsabout the distributionofpower at the supreme judiciallevel. As constitutional
law has come to permeate the entire structure of the legal system, it has become
impossible to maintaina firm delimitation between the functions of the constitutional
court and those of ordinary courts. This article looks at various conflicts arising
between the highercourts 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 centralizedjudicial review.

1. The Kelsenian model: Parallel supreme jurisdictions
1.1 The model
The centralized Kelsenian system of judicial review is built on two basic assumptions. 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: lech.garlicki@echr.coe.int

Louis Favoreu, ConstitutionalReview in Europe, in CONSTrtmONALSM AND Roars 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 specific characteristics of each of them." Id., at 51.
© The Author 2007. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org
I.CON, Volume 5, Number 1, 2007, pp. 44-68 doi:10.1093Acon/mo44

44

Kluwer 2002). 4 MAURO CAPPEL=Im & WILLIAM COHEN. It is no wonder that countries elsewhere in the world. COMPARATIVE CONSTITIONAL LAw 76-83 (Bobbs-Merrill 1979). supra note 1. However. Thus. new partner. 4 the main reasons lie in the profound differences in the political and constitutional culture on both sides of the Atlantic Ocean. Press 2002). It may also be regarded as one of the most successful improvements on the traditional European. every success has its price.. to the civil law approach to the role of judicial precedent. the new constitutional courts had to find their place within the judicial structures of their own countries. the existing courts were unable to offer adequate guarantees of structural independence and intellectual assertiveness. sec. 37. 2 Even France. art. of a preventive review. 2). however. Favoreu. .Garlicki I Constitutional courts versus supreme courts courts also exist in almost all the new democracies in Eastern Europe.. traditionally reluctant to accept any form of judicial review of legislation.. (Chicago Univ. in many of those European countries in which the judicial review was adopted as one ofthe democratizing measures following a period of authoritarian rule.' Additionally. has developed its Conseil Constitutionnel into a 3 genuine constitutional jurisdiction. at 44-46. almost exclusively. TE STRUGGLE FORCONMSTrTUTONAL CONsU'=ONAL JUsTncE. Inevitably. e. BREwER-CARiAs. to the authority of the traditional civil law courts and the psychology oftheir judges.g. LA JUSTICECONSTrUTIONNELL EN EUROPE CENTRALE [CONsTUrmONAL JUSTICE IN CENTRAL EUROPE] [Marc Verdussen ed. 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. judicial review usually was more responsive to ideas that had already taken root in democratic countries. Except for the disputes related to the distribution of lawmaking competences between the parliament and the cabinet (FR. with the exception of Estonia. CONsT. As Mauro Cappelletti has observed. and. 5 But see ALAN R. last but not least. Constitutional courts entered the game as another. Juoicmu REvmw IN CouPAETrm LAW 128-131 (Cambridge Univ. The centralized system of judicial review corresponds better to the European understanding of separation of powers. 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. questions emerged about how 2 See. 3 France is the only European country in which constitutional adjudication takes the form. JUSTICE IN POST-CoMMUNIST EUROPE HERMAN SCHWART. parliament-oriented concepts of democracy and rule of law. the emergence of a separate constitutional court may be regarded as one of the most typical features of Continental constitutionalism. particularly in Latin America. At the same time. the Conseil Constitutionnel only has jurisdiction to review a statute before it has been promulgated. also became attracted to the Kelsenian model of judicial review. Emile Bruylant 1997]. Centralized in a newly established constitutional court. EAST Ao WEsT: DsuocRATIC LEGrrIMAcy ANDCONSTITmONAL COURTS iN PoST-CoMMuImsT EUROPE IN A COMPARATE PERSPEC- nv (Wojciech Sadurski ed. Press 1989).

it must refer the question of constitutionality. whereas the resolution of all cases and controversies involving the application of ordinary legislation (and. in Austria (albeit in a limited form) and later adopted (in a full version) in Germany. . if an ordinary court finds that a statutory provision that it has to apply in a concrete case is unconstitutional. See Brunner. 7 Since then. a complaint can only be directed against the legal rule that determined the judicial or administrative ruling in the case. the French Conseil Constitutionnel being the only exception.g. Germany and Spain). In most systems. 5: 44 judicial power should be distributed between the old and the new courts. 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.not in the context of any actual case. at first. 7 This procedure is based on referrals of so-called constitutional questions by ordinary courts to the constitutional court... Delimitation of jurisdictions The general idea of delimitation appears relatively simple. within a decade a procedure for the incidental review of statutes by the constitutional court was introduced in Austria. in Spain. the right to bring the case before the constitutional court is reserved for the highest state bodies and officials (the president of the republic. ultimately. introduced.g.8 Both procedures-incidental review and the constitutional complaint-modified the idea of the separation of judicial functions in this way: they invite the constitutional courts to participate in the adjudication of individual cases by ordinary jurisdictions.46 I-CON January 2007 Vol. The first version of the 1920 constitution of Austria limited the powers of the constitutional court to the abstract review of legislation 6 and did not provide for any direct links between the judicial application of statutes and the jurisdiction of the constitutional court. a complaint can also be directed against the ruling itself.e.2. infra. of the different "codes") should belong to the exclusive province of the ordinary courts (and. This seemed to be Kelsen's initial idea. different combinations of abstract and incidental review of statutes have become a common feature of all the constitutional courts gradually emerging in Europe. either by resolving preliminary questions of the constitutionality of statutes or by reviewing the constitutionality of final judicial decisions. the ombudsman). in particular. However. it soon became clear that it would be very difficult to develop a commonly accepted model of cohabitation at the supreme judicial level. Not surprisingly. Poland). The resolution of all cases and controversies of a constitutional dimension should be monopolized within the constitutional court. The constitutionality of a statute is examined in abstracto. I This is the only procedure allowing an individual access to the constitutional court.. to the supreme court). and in several of the new democracies of Central and Eastern Europe. 6 In this procedure. and similar bodies. groups of members of parliament (i. But the most radical departure from the idea of the separation of jurisdictions emerges with the procedures for constitutional complaint (Verfassungsbeschwerde or amparo). parliamentary opposition). In other systems (e. In some systems (e. note 58. 1. the cabinet.

Some. on the one hand. at the beginning of the twentieth century. 1. only a few countries were ready to have their constitutions incorporate a developed catalogue of individual rights. in almost all the countries that decided to establish a separate constitutional court. New constitutions provided. it was inevitable that constitutions would assume a more prominent role in the adjudication of individual cases and controversies. ordinary courts had only very occasional opportunities to apply constitutional provisions when deciding civil (administrative) or criminal cases. The first is related to the transformation of the very nature and scope of the constitution. Once these provisions pertaining to individual rights were perceived as binding legal norms and once procedures for invoking those rights were operational. limited the constitutional enforceability of their bills of rights. Thus. are seldom very specific. As a consequence. constitutional adjudication entails a much greater degree of creativity than is typically seen in the traditional process of the judicial application of statutes. however.Garlicki I Constitutional courts versus supreme courts Thus. This fundamentally changed the locus in which the constitutional provisions were to be applied. The increasing number of cases submitted to the new constitutional courts requires that they find adequate and convincing answers in constitutional texts. gradually. Those texts. judicial bodies had only a limited competence to intervene in constitutional/political controversies. the problem remained somewhat hidden as long as-according to the European tradition-national constitutions were regarded mainly as political instruments rather than as the supreme law of the land. The judge-made constitution This factual separation of jurisdictions began to fade after World War H. Weimar Germany. As a result. However. this court's powers eventually intervened in some areas traditionally controlled by the supreme court. This new role for national constitutions has had three important consequences with regard to the structure and functioning of the judicial branch. Constitutional case law (and not the formal amendment procedure) assumes the task of adjusting constitutional norms to changing political and social contexts and of developing . and the constitutional court-if it existed at all-had even fewer opportunities to decide cases related to the legal status of an individual. such as Austria or France. Therefore. others. particularly in the field of individual rights. constitutional provisions were necessarily drafted in general and value-oriented language. a very rich constitutional case law begins to accompany the original text of the constitution and. it has never been possible to provide for a truly genuine separation of jurisdictions. The authors of the postwar reconstruction realized the importance of both the legal authority of the constitution and the enforceability of fundamental rights. concentrated their regulations on governmental structures. that case law becomes more relevant (not to say more authoritative) than the constitution's original written norms. on the other.3. even from a procedural perspective. for comprehensive bills of rights and. for example. Furthermore. for the establishment of constitutional courts vested with adequate powers to enforce those bills of rights.

namely. administrative and private law. Press 1999). the constitution-as defined by the case law of the constitutional courtprovides for norms and rules of a higher order. sometimes. the court has to clarify what the constitution requires or forbids with respect to the legislative regulation of particular matters. e. has surfaced in almost all those European countries that managed to transform their constitutions into genuine supreme laws of the land. the interpretative function is of paramount importance for the relations within the judicial branch. well known in U. even to replace) the written constitution. family law. visiting (some would say invading) other branches of law. in the vast majority of cases. Since constitutional case law results mainly from the decisions of the constitutional court. to criminal. and social benefits.. such a process indisputably has taken place (and still is taking place) in most European democracies. Those provisions or decisions belong to different branches of law. LA CONSTITUTIONALISATION DES BRANCHES DU DROrr [THE CONSTITIONALmATION OF AREAS OF THE LAw] (Bertrand Mathieu & MichelVerpeaux eds. Nonetheless. that court would follow the interpretation already I As Andrds Saj6 observes. A so-called judge-made constitution begins to supplement (or. in 61 VER6FFE'ruCHUNGN DERVEREINIoUNG DERDEWucSHl STAATSRECHTSLEHRER [PUBLICATIONS OF THE ASSOCIATION OF GERLA\N PiBuc LAw TEACHERS] 12-14 (de Gruyter 2002) (hereinafter. constitutional history.48 I-CON January 2007 Vol. Second. it extends constitutionalism (primarily through the protection of individual rights) to areas beyond public law. the constitutional court goes beyond the traditional realm of constitutional law. usually. known as "constitutionalization of specific areas of law. The decision whether a statutory provision is constitutional cannot be taken before the real meaning of that provision has been established. 1oSee. Verfassungsrecht und einfachesRecht-Verfassungsgerichtsbarkeitund Fachgerichtsbarkeit[Co:vsTnrnoA LAw AND oTHER LAW-URISDICTION OVER THE CONSTITUTION AND JURISDICTION OVER SPECIFICSUBJECT MATTERS]. Robert Alexy. and in practice. Ordinarily. on examining whether a particular legislative provision or judicial decision is in conformity with the constitution." ANDRAS SAjo. constitutional courts arrogate to themselves a part ofeach ofthe existing governmental monopolies. the power of the parliament to legislate and that of the supreme court to interpret and apply the laws made by the parliament. In particular.9 In particular. there have always been disputes as to the legitimacy of judicial constitution making. This process.g.""' pertains most typically to criminal procedure as well as to various issues of property rights. This process. (Economica 1998). LLmrTNG GovEiENT: AN LNTRODUcION TO CONSTITUTIONAUSM 243 (Central Eur. Univ. 5: 44 those norms far beyond the originally intended scope. This means that the court must define constitutional "components" with respect to the content and approach of specific areas of law. Thus. S. "VVDStRL"). taxation. This must be done by the constitutional court. with respect to all areas of law. "[c]onstitutional adjudication does not primarily affect the legislature but it does the ordinary administration of justice. it soon becomes obvious that the constitution may be applied only through application of the jurisprudence of that court. Clearly. . by which I mean that they are binding both on the "ordinary" legislature as well as on the "ordinary" judge. In all those and many other areas. Thus. the process of constitutional adjudication focuses.

Verfassungsrecht. to a considerable extent. but not necessarily according to the same rules and not necessarily in the same direction. but also-and primarily-by all other courts and judges. An additional component. their binding authority soon became limited since-in practically every case-a question may arise whether or not those provisions conform to the higher law. once constitutional norms. must produce an answer. at least in the first instance. . The situation requires both parties to establish some reasonable mode of coexistence. it is not only the constitutional court but also the supreme court that interprets the constitution. and only a very few constitutions provide for the clear delimitation of their tasks. constitutional. positions taken by the constitutional court may differ substantially from those preferred by the supreme court. In effect. and this requires the simultaneous application of statutory. and values become relevant to the application of specific statutes. at least in Europe. however. derives from the supranational human rights instruments as developed in the case law of the European Court of Human Rights and the European Court of Justice. however. In the modern constitutional state. Sometimes. Third.1' The constitutionalization of specific branches of law means that the normative content of each of those branches is now determined not just by particular statutes and codes but by the pertinent constitutional provisions and the existing constitutional case law. I Werner Heun.Garlicki I Constitutional courts versus supreme courts established in the jurisprudence of the supreme court. each and every judge must first establish the content of the relevant norm. The foregoing developments demonstrate that no genuine separation of constitutional jurisdiction and ordinary jurisdiction is possible in a modem Rechtsstaat. and such an answer often requires the judge to find the correct interpretation of both the statutory provision and the constitutional (or supranational) norm. which usually intervenes at the very last instance. In other words. they must be applied not only by the constitutional court. relations within the judicial branch. just as it is not only the supreme court but also the constitutional court that interprets ordinary statutes. This extra element radically transforms the functions and the responsibilities of an ordinary judge. principles. and finally. There are several areas in which both jurisdictions have to act in parallel. and supranational provisions. The judicial process no longer is limited to the two-dimensional application of statutory norms to the facts of the case. but it also complicates. It is the ordinary judge who. constitutional courts and supreme courts are traveling on the same road. The new role of constitutional norms may be beneficial for the protection of individual rights and liberties. While statutory provisions form most obvious and useful basis for decision. from time to time. it also produces numerous conflicts and disputes. the constitutional court may be confronted with multiple possible interpretations and may be tempted to indicate which one is constitutionally correct.id. No wonder that. at 109.

the constitutional courts emerged long after the supreme courts had already established their authority." .1. the Court demanded independence from the executive branch (so-called Statusdenkschrift: see 6 JAMUCHRc DESoFrENIUIEN Rsc'ms 144 (1957)). the Bundesverfassungsgericht.1 12 Gesetz uber das Bundesverfassungsgericht vom 12. in case of a conflict with the supreme court. to propose some conclusions of a general nature. it was vested with powers broader than its Austrian or Italian counterparts. 11Initially. difficult. the Constitutional Court (like all other courts in Germany) was included in the administrative and budgetary structure of the Federal Ministry of Justice. therefore.headed by five federal supreme courts. Maz 1951 [Statute on the Federal Constitu- tional Court in the version of 12 March 1951]. Thus. the arguments of the constitutional court had to be genuinely convincing if they were to be accepted by the lower courts. Germany The German Constitutional Court. 5: 44 2. accordingly. I at 243. especially as one of the basic premises of the new system was the recognition of the supremacy of the Constitution. however. had to overcome the failures of their immediate past. BVerfGG. It emerged as a total newcomer. It may be useful first to recall some examples and. It encountered the five branches of specialized courts already well established in the pre-Nazi tradition of the German Rechtsstaat. the Federal Constitutional Court Act 12 introduced the procedure by which constitutional complaints could be lodged by individuals against final judgments of the specialized courts. only later. Experience: Some examples of judicial cohabitation It has not always been easy to elaborate a modus vivendi for the courts. In particular. 2. the other jurisdictions were in a process of reconstruction and. Almost all countries of Europe have experienced different types of conflicts between their higher courts. It was quite natural that the lower courts were ready to accept that authority and to follow the case law of the supreme court. the German Constitutional Court managed to find its way to the very summit of the new constitutional system. was the first entirely new constitutional jurisdiction established in postwar Europe.50 I-CON January 2007 Vol. and it has since managed to consolidate its position as a "constitutional organ of the state. The situation of the Constitutional Court was. Within the next ten years. In 1952. the climate of postwar reforms offered the new Court a considerable chance of success. at the same time. unlike the new Constitutional Court. In addition. BGBI. since no developed procedures for judicial review had ever existed in German constitutional history. The Court was meant to be the most important judicial instrument in preserving that superiority. It began by establishing its structural independence: first. In most countries. with respect to the executive branch.

The procedure of constitutional complaint (Verfassungsbeschwerde). In two landmark decisions.115 ARCHrV DESoFLENTLUcHEN REcrrs 189-192 (1990). supranote 10. it was in this way. and in this context. emerged as an extremely effective tool. Finally. See Hans Joachim Faller. sometimes before the Constitutional Court had rendered its decision. Bundesverfassungsgericht und Bundesgerichtshof. As recently summarized by Robert Alexy.resulted in a gradual constitutionalization of the whole legal system. with respect to the supreme courts. at 10-12. 6 [Decisions of the Federal Constitutional Court] BVerfG. . all five supreme court presidents addressed a note of protest to the President of the Constitutional Court. Since then. 6 Entsc- heidungen des Bundesverfassungsgerichts [BVerfGE] 32-45. the Court's approach to the interpretation of fundamental rights. The FCC Act provided that any court could. IS Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] January 16. at any stage of the judicial process. the Federal Constitutional Court Act was amended and the participation of supreme courts in the procedure of judicial referrals was abolished. 7 BVerfGE 198-230. There is no need to recall those well-known developments in detail. refer a constitutional question to the Constitutional Court but only via an appropriate supreme court.17 14The first important controversy arose around the procedure of incidental review of constitution- ality. In 1955. The Constitutional Court as well as the specialized courts participated in that process. 14 Simultaneously." and it developed the concept that fundamental rights create an objective order. organized around certain general values and principles. the Constitutional Court declared that the supreme courts were not allowed to submit their opinions. 1958. the Court began to develop the concept of the direct applicability of the Constitution (its provisions on fundamental rights) and to impose that concept on other segments of the judicial branch. even if still lacking clear constitutional foundations. in July 1956. 17Alexy. January 15.16 the Court extended the applicability of constitutional complaints to all the situations that entailed conflicts with a general right to "individual liberty. or Grundrechte. It is sufficient to note that they had a profound impact on relations within the judicial branch. 1957.Garlicki I Constitutional courts versus supreme courts then. 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 official collection of the Bundesgerichtshofs decisions. In response. Elfes (19 5 7) 15 and Luth (19 5 8). Moreover. and their functions could not but overlap to a considerable degree. it remains within the discretion of the Constitutional Court to seek opinions from the supreme courts: see Renate Jaeger & Siegfried Bross. which had the right to submit its own opinion on the question referred by the lower court. 11 EuROPAISCHE GRUNDRECHTENZEITUNG 31 (2004). that the Constitution acquired a so-called radiation effect upon private law relations. Die Beziehungen zwischen dem Bundesverfassungsgerichtund den ubrigen einzestaatlichenRechtsprechungsorganen[THE RELATIONSHIP BEWE THEFEDAL CONsTrrrTrIONAL COURT AND OTHERINDIDUAL STATE JUDICIAL ORGANS].

supra note 10. e. only a tiny fraction of complaints are successful. The cassation function of the procedure of constitutional complaint remains less articulated: More significant is the "persuading" or "directing" function whereby the Court rules on the manner of interpretation and application of a particular fundamental right.F.52 January 2007 I-CON Vol. the Constitutional Court only rarely quashes decisions of ordinary courts. Das BVerfG und "seine" Fachgerichtsbarkeiten [The Federal ConstitutionalCourt (BVerfG) and "its own" jurisdiction over specific subject matters]. the concept of "specific constitutional law" and the test for the lawmaking nature of judicial solutions of individual cases. in particular. its review is far-reaching. Gerhard Robbers. Nevertheless. Mdiller Verlag 2004). 21 For example. Zum Verhaltniss von Fach. managed to find a clear implementation in the Court's practice. or it may establish which interpretation of the law is in conformity with the Constitution. Fur ein neues Verhaltnis zwischen BVerfG und Fachgerichtsbarkeit [Toward a new relationshipbetween the Federal Constitutional Court (BVerfG) and the jurisdictionover specific subject matter]. 9 While the Court keeps emphasizing that it must not act as a Superrevisionsgericht(reexamination court).. Duncker & Humblot 1999) 13 7. g. . 128 AoR 177 (2003) in 1999.und Verfassungsgerichtsbarkeit [Monitoring of fundamental rights explained: On the relationship between specific subject matter and constitutional law jurisdiction]. Kirchhof eds. at: 146. 22 See.20 It demonstrates that. The legal doctrine suggested several proposals. Georg Hermes. The limits of review seem to be delineated mostly on a caseby-case basis. no longer claims a monopoly over application of the 22 Constitution but.. in reality. VVDStRL. 56 DAs DEUTSCHES VERWALTUNGSBLArr 1036 (DVBl 1966). C. however. none of them. Friedrich Miuller &Volker Neumann eds. while preserving the last word if a controversy arises."i The jurisprudence of the Constitutional Court tacitly accepted those "Formels". venturing even into the examination of whether a judicial assessment of facts has been arbitrary. Aufgabe und Stellung des BVerfG in der Gerichtsbarkeit.in IHI: HANDBUCH DESSTAATSRECHTS DERBRD 122 5-1226 (Josef Isensee & PaulP.. in practice. Thus. acts as a coordinator of that process. 51 NEuEJuis'rnscH WocHscHRr 938 (1998). Bundesverfassungsgerichtund Fachgerichte [Federal ConstitutionalCourt and Courts for Specific Subject Matters]. or that a law is "not yet" unconstitutional. and the initial optimism of the legal doctrine is giving place to certain resignation. in RECHTSTHEORIE UNDRECHTSDoGMATIK BErwEEN LEGAL THEORY ANT LEGAL DOGMATSM] EmAusTAuscH [ExcHANGE (Wildfried Erbguth. Gerd Roellecke. a year when the Bundesgerichtshof issued some 7000 judgments. 19Hans-Joachim Koch. e. applicants prevailed in only ten constitutional complaints against such judgments. 20As shown by Wolfgang Hoffmann-Riem (Nachvoilziehende Grundrechtekontrolle. 5: 44 No clear indication as to the delimitation of the functions and powers of those courts could be found in the written text of the Basic Law. rather. the direct application of the Constitution (of its provisions on fundamental rights) is present in the decisions of all the courts and judges.g. The Constitutional Court. 18So-called "Schumann'sche Formel" and "Heck'sche Formel": see. assuming the role of a court of cassation. See also Jorg Berkemann.. the Court may declare that a law is "incompatible" (unvereinbar)with the Constitu- tion. 21 and the specialized jurisdictions follow the Court voluntarily.

at.de/entscheidungen/rk20051205_ 2bvr196405. it established that the right to compensation results from principles of customary law. 25 One of them relates to the interpretation of the "expropriation" clause (article 14 of the Basic Law). See Hans Joachim Faller. in FEsTscHRinr 50 JAHRE BuNDuSvEuFASSUNGSGERICHT [FETScHiu': 50 YEARS OF THE FEDERAL CONSTrnrTIONAL COURT] 57 (Peter Badura & Horst Dreier eds. Nevertheless. in consequence. 26 See examples quoted by Failer. in particular.html (last visited Oct.bverfg.html (last visited Oct. 1-47 and BVerfG. See also Stephan Korioth. 16. the Constitutional Court experienced some problems with assuring full compliance of the penal courts in respect to the length of detention preceding a final conviction. 2005.html (last visited Oct.bverfg. 2006). 2005. supra note 10. 2 as well as examples of occasional collisions. Paul Siebeck 2001). 1-72. unwilling to forsake its own jurisprudence. there are examples of divergences that have remained unresolved for several decades. VVDStRL. BundesverfassungsgerichtundRechtsprechung (Fachgerichte)[Federal Constitutional Court and jurisprudence (Courts for Specific Subject Matters)]. Quite recently. http://www. 26 Although the modus vivendi between the supreme courts appears more calm and predictable in Germany than in some other countries and although the German Constitutional Court appears to be one of the most 23 Some authors observe that "criticism of the Court has recently developed into a hitherto un- known dimension": see Philip Kunig. 12. at 202-206. the decisions of BVerfG. postconviction by the first instance court. 2006). but. 16. at 37.de/ entscheidungen/rk20050222_2bvrOlO9O5. 1 BvR 1905/02. and." Koch. 23 From time to time. at 1230. The Bundesgerichtshof had to accept this. it is also reflected in the jurisprudence of the specialized courts. hinted that it was not ready to support such an interpretation of article 14.de/ entscheidungen/rs20051206_lbvrl9O502. have evoked criticism as well. however. http://www. See. in particular. Roellecke. It was. even if such extension had not been provided at the statutory level. 2 BvR 1964/05. It is true that instances of an open refusal to follow the Constitutional Court are exceptional. The local courts have not always been ready to follow the position of the Constitutional Court. as well. see Jaeger & Bross. there is seemingly endless debate as to the limits of the Court's review of the specialized jurisdictions. Already the Luth and Elfes decisions. to situations of "de facto expropriation" ("enteignungsgleiches Eingriff"). http://www. 2005. at 199-202. supra note 14. in particular. supra note 14. 16. note the emergence of a new "zivilistische Fundamentalismus. supra note 19. December 6. The Constitutional Court has. 1-109. BVerfG. at 165. This criticism has persisted for the five decades that followed these rulings and is clearly still present in current discussions. February 22. supra note 18. 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. sometimes provoking heated exchanges of views. In 1952. while praised by many constitutionalists. the Bundesgerichtshof decided that article 14 allows the right to compensation to be extended. noting a growing number of critics of the Constitutional Court. at 36.bverfg. It eliminated the constitutional dimension (and thus the direct jurisdiction of the Constitutional Court).. . however. December 5. Kunig. the Court had to quash their decisions and to remind them of the binding nature of its constitutional interpretation. supra note 14.Garlicki I Constitutional courts versus supreme courts At the same time. 24For some examples. 2006). VVDStRL. See also the judgment of the Constitutional Court of 6 December 2005. 24 and that (as is not the case in some other countries) the German Court is adequately equipped to impose its legal positions on other jurisdictions. 2 BvR 109/05. supra note 10. on numerous occasions.

To make a long story short 2 7 it suffices to note that the Italian system of judicial review does not recognize the procedure of constitutional (that is. John Henry Merryman & Vincenzo Vigoriti. L. FRANCE ANDITALY] . Two types of interpretative decisions have emerged in the practice of the Constitutional Court.g. However. 5: 44 powerful jurisdictions in Europe. it must first establish the interpretation of the provision under review. 27 See. individual) complaint and operates. in HuMAN RIGHTs ANDJuDICIAL REVIEW: A CONPARATIVE PEasPrvE 235-236 (David M. Rather than invalidate laws. only the interpretation that has been declared unconstitutional may no longer be applied. CoMP. Those of "rejection" (sentenza interpretativadi rigetto) state that the provision. the Corte Costituzionale. the problem of relations within the judicial branch is nonetheless far from a generally accepted solution. and the Court's ruling becomes part of the law of the case. the Constitutional Court. e. the Constitutional Court designates one that conforms to the Constitution and rejects all others.28 Those known as "admission" (sentenza interpretativadi accoglimento) state that the provision.2. the authority of the Constitutional Court's ruling might be placed in doubt. the Court has sought to develop so-called interpretative rulings in which a decision on the constitutionality of law is taken not in absolute terms but in relation to a particular interpretation of the provision at issue. Methods and Criteria of Judgment on the Question of Rights to Freedom in Italy.. the Constitutional Court decides on the constitutionality of the referred provision. Beatty ed.54 January 2007 I-CON Vol. Since this excludes only one possible interpretation. 665-686 (1967). The first important controversy emerged almost immediately at the conclusion of the eight-year process creating the Italian Constitutional Court. If the interpretation adopted by the Constitutional Court differs from the one established in the jurisprudence of the ordinary courts. This has always been clear with regard to a "simple" ruling of unconstitutionality. The problem is that for the Constitutional Court to issue an interpretative ruling. When Courts Collide: Constitution and Cassa- tion in Italy. LX 1 56 FJUECONSTTUMONNEL Lr LA TECHNIQUE DES DECISIONS"INTERPRETA- TIVEs" EN FRANCE Err EN ITALIE [THE CONSTITUrIONAL JUDGEAND THETECHNIQUE OF "INTERPRETATIVE" DECISION IN (Economica 1997). Such referrals may pertain only to those statutory provisions that would form a basis for the court's resolution of a pending case. has tried to avoid rulings of unconstitutionality. is unconstitutional. Italy Intercourt relations in Italy are more temperamental. first of all. This means that from multiple logically possible meanings of the text. the law remains formally intact. by means of "legal questions" submitted to the Court by the courts of general jurisdiction. Enzo Cheli & Filippo Donati. 2. TimRoY Di MANIO. J. since its early years. if read in a certain way. if read in a certain way-and only in this way-is constitutional. 28 See especially GusTAvo ZAGREBHESKY. LA GISTIZaA CosTrIziONALE [CONsrrrtmoNAL ADJUDICATION] (II Mulino 1988).. 15 AM. Once such a question is submitted. since such a ruling invalidates the statute with a universally binding effect. Springer 1994).

Current Situationand PlannedReforms in the Light of Italian Experience. '"30 It means that."2 9 In the decades that followed. at the same time. "The debate. at least with 29 Guiseppe La Greca. however. On the other hand. it remained unclear to what extent the Constitutional Court's decision was retrospectively applicable. 10Giancarlo Rolla & Tania Groppi. this interpretation required the Court of Cassation to revise its 1958 jurisprudence. lost most of its pertinence. which withdrew and acknowledged that the issue of retrospective application of decisions on illegality is not a matter of constitutional law. the Constitutional Court began to develop new techniques of constitutional interpretation.at 151. the problem of interpretative judgments. Between Politics and the Law: The Development of Constitutional Review in Italy. the Court of Cassation decided that the applicability of the Constitutional Court's ruling was only prospective. in particular. as they have been already applied in the case law of other superior courts. the latter Court-using the technique of interpretative admission-responded by declaring the contested provision unconstitutional insofar as it made possible the interpretation adopted by the Court of Cassation. Both courts tried to avoid open conflicts. rejecting the approach adopted by the Constitutional Court. Two months later.Garlicki I Constitutional courts versus supreme courts In 1958. The constitutionality of legal provisions is also assessed in relation to their content as established within the existing legal reality. which assumes that the Constitutional Court does not review contested legal provisions in the abstract but. was resolved by the Judgment No. which refused to declare the contested provisions unconstitutional and spelled out how those provisions should be interpreted by the criminal courts. the Court of Cassation refused to do so. which caused uproar and led to a very serious conflict between the two courts. the "living law" concept. On the one hand. rather. the same issue was submitted to the Constitutional Court. However. in THE COURT: THIRD MEETING OF PRESMENTS OFSUPREM COURTS OFCRNURAL SUPREMECOURT ANDTHE CONSTITUTIONAL AND EASTERN EUROPEAN CoUNmES 9 (Council of Europe 1997). In April 1965. At the end of 1965. . CoNSTrrUnONAL JUscE. At the same time. 49/1970 of the Constitutional Court. the Constitutional Court accepts the Court of Cassation's responsibility for statutory interpretation. but it reserves for itself the last word as to whether that interpretation remains within constitutionally prescribed limits. the Italian Court of Cassation decided certain questions related to the procedure of "summary investigation" and ruled that some fair-trial guarantees need not have full application to that type of proceeding. In other words. the growing authority and importance of the Constitutional Court prompted the Court of Cassation to accept its interpretations of statutes. both judicial case law and legal doctrine agree that interpretative decisions on constitutionality do not have a universally binding authority and are effective "only insofar as the Constitutional Court's position is persuasive. supra note 2. This settled the question of constitutionality. while not resolved in a clear manner. In February 1965.

32 The Court of Cassation. Guiseppe Romeo.292 (subsequently confirmed by decisions of 19 Nov. 5: 44 respect to the interpretation of the living law. 6 Ls CAMs DU CONSeL CONnTrITmONNL 31 (1998). id. in this regard.229. 35"Le decisioni interpretative di rigetto della Corte costituzionale non hanno efficiacia erga omnes. observing: The Constitutional Court's interpretative decisions of rejection do not have an erga omnes effect. under which it remained constitutional.. cass.. n. 22 July 2005 n. 2000 n. depends on the goodwill and selfrestraint of both parties. 30 June 2003 n. 33 Corte cost. n. 25 July 2002 n. Prdsentationde laCour constitutionnelle italienne [Overview of the Italian ConstitutionalCourt]. 2 of the Constitution) to interpret. and Paolo Antonio Bruno. 32 Corte cost.34 The Court of Cassation refused to follow that interpretation. distinct from findings of the constitutional illegitimacy of a provision under review.23016. the Constitutional Court declared that article 303 must conform to articles 3 and 13 of the Constitution and indicated the correct interpretation of the code. The Constitutional Court had to yield and. it is. In 1998. See also commentaries of Guiseppe Romeo. . in connection with the calculation of the maximum term of preliminary detention).. The Constitutional Court dismissed the request. 3 31 Alessandro Pizzorusso. the content of legal norms. it found article 303 unconstitutional as interpreted by the Court of Cassation. cass. cass. at 2715-2718. in the decision of Corte cost. In tutti gli altri casi il giudice conserva ilpotere-dovere di interpretare in piena autonomia le disposizioni di legge a norma dell'art 101 comma 2 Cost. In this instance. 2000 n.. the Court of Cassation 3 that retains the last word. to a large extent. id. 31 Mar 2004.243.. at 2718-2746. the Constitutional Court affirmed the concept of "living law" and left the resolution of the problem to the legislature.. the ordinary judges retain their power and duty (provided for in Article 101 sec. Thus. autonomously. reiterating that article 303 should be interpreted in the manner previously stated. That is why the former contain only a negative message [holding that no unconstitutionality has been established] and are determinative only for the case on which the question of constitutionality has been referred. In all other cases. in fact.429.. See CASSAziONE PENALE 2710 (2004). id.214 and 22 Nov. Meglio tardi che mai? [Better late than never?]. at 3254-3259. ' A recent controversy between the two courts illustrates that their modus vivendi remains fragile and. They are..56 I-CON January 2007 Vol.. See CASSAZaoNE PENAu 3246 (2005). 7 July 1998. the courts clashed over the interpretation of article 303 of the Code of Penal Procedure (specifically. directly challenged33 the constitutionality of article 303 before the Constitutional Court. 394..529). doubting the correctness of that interpretation. a differenza di quelle dichiarative dell'illegittimita costituzionale di norme. 19 Jun. e pertanto determinano solo un vincolo negativo per ii giudice del procedimento in cui e stata sollevata larelativa questione." Corte Cass.. 1999 n. 34 Corte cost..

Poland The Constitutional Tribunal of Poland has been in existence since 1986 and represents one of the best-established constitutional jurisdictions among the "new democracies" of Europe. . that is. rather. generally. each exercising independent jurisdiction within its area of competence. the Supreme Court included. experience problems in convincing the other superior courts to follow its legal positions.. although it was only recently introduced by the 1997 Constitution and only in a limited version. The Constitution determines. at 49. On the one hand is the predominance of incidental (concrete) review in the procedures before the Constitutional Court. to the ordinary courts-that is. "legal questions" referred by ordinary or administrative judges deciding individual cases. Hence. 16 See. Such decisions of the Tribunal have an erga omnes effect and are final and universally binding. unless the Constitutional Court annuls the law as unconstitutional. the powers of the superior courts. supra note 2.3. but it may also be due to two more-specific factors. the rulings of the Constitutional Court precede the judicial resolution of the case upon which a referral has been made. to the Court of Cassation. the ultimate application of that law belongs. On the other hand. from time to time. at least two serious problems remain controversial in the judicial practice. and that is why the Constitutional Court may. 2. A second factor is the absence of a procedure of constitutional complaint. however.g.Garlicki I Constitutional courts versus supreme courts Fifty years of coexistence by the superior courts in Italy failed to produce a clear pattern of relations.16 The Polish system of judicial review rests on three basic procedures: abstract review. The first is related to the very power of the judicial review. The Constitution clearly provides that the Constitutional Tribunal is vested with the competence to review ordinary statutes and other legal regulations and to annul them in case of unconstitutionality or nonconformity with the international instruments to which Poland is a party. This means that the docket of the Court remains largely dependent on the willingness of ordinary judges to refer constitutional questions to it for a decision. It means that the Constitutional Court has no direct power to review the constitutionality of final judgments adopted by other jurisdictions. the assessment of Schwartz. This situation is typical of Italian political and legal culture. even if-in real life-the delimitation of their respective spheres of responsibility became well established. also binding on all other courts. e. However. The other superior courts in Poland are the Supreme Court and the High Administrative Court. It is the abstract review procedure that has traditionally played the most important role in the operations of the Constitutional Tribunal The procedure of constitutional complaint seems to have become ever more popular. and constitutional complaints that are lodged with the Tribunal once appellate procedures have been exhausted.

in MELANGEs FAVORJ [Favoreu Collection] (Presses Univ. when resolving an individual case. While there have been few examples of judgments (mainly coming from the Labour Law Chamber of the Supreme Court) in which ordinary judges actually refused to apply statutes deemed unconstitutional. The question is whether the competence of an ordinary judge may go beyond referral and include. Making ConstitutionalismHorizontal: Three Different Central European Strategies. on a motion submitted by one of the parties or on his own initiative. in their opinion. respects the Tribunal's exclusive power to annul unconstitutional statutes. Czech Republic.. she may refer a "legal question" to the Constitutional Tribunal. However. hence. some of their judges) approach their role in constitutional adjudication. once the constitutionality of a statute has been determined in a judgment of 37 the Tribunal. Their case law accepts only that. Slovakia and Hungary proposed by Zdenek Kuhn. 38See an interesting comparison of Poland. This controversy illustrates the activist manner in which Polish superior courts (or. unconstitutional. in THE CONSTmON iN PRVATE RELATIONS: EXPANDING CoNsTTUrto. a controversy arose in the mid-19 90s as to the role of other courts in reviewing the constitutionality of statutes. This is not contested with respect to the judge finding a disputed provision constitutional. she has the power simply to decide the case. see Lech Garlicki. This Polish "anomaly" results from a combination of different factors: the original limitations on the powers of the Polish Constitutional Tribunal. the possibility of independently determining the issue of constitutionality. 5: 44 While those powers of the Constitutional Tribunal have never been in doubt. at least. Once a judge. some judges and scholars are of the opinion that ordinary courts also have a power of "incidental review"-meaning that they may refuse to apply any statutory provision that is. among the other higher courts only the Constitutional Tribunal has taken the uniform position that there is no constitutional basis for such actions. this finding must be followed by all other courts and judges. Vingt ans du Tribunal constitutionnelpolonais [Twenty years of the PolishConstituionalTribunal].58 I-CON January 2007 Vol. expresses doubts as to the constitutionality of such provisions. 11For a more detailed presentation. According to that logic. as well. But if the judge has no doubts about the unconstitutionality of a statute. the judge should refer the issue to the Constitutional Tribunal only if the interpretation remains doubtful. the scholarly orientation of the Supreme Court's personnel. has a right and a duty to consider whether the statutory provisions on which judgment will be based are in conformity with the Constitution. forthcoming 2006). the referring judge must apply it to the case. Once the Tribunal has taken its decision. The Supreme Court and the High Administrative Court still avoid taking any definitive stand on the matter. Such "incidental" refusal to apply a statute does not collide with the prerogatives of the Tribunal because it does not affect the general validity of the statute and. Eleven International 2005). Each court. and the tradition of independent application of inter38 national treaties by the Supreme Court and the High Administrative Court.AusM. It is not typical of countries in the region. 236-240 (Andrs Saj6 & Renata Uitz eds. . Aix-Marseille.

judgment of May 14. 17. under the Polish Constitution. the Polish system had made a distinction between "interpretative decisions" and "interpretative resolutions" of the Constitutional Court. it provided that the "judgments of the Constitutional Court (i. item 214). There has been no case. observing that. The 1997 Constitution abolished the procedure of "interpretative resolutions. the Tribunal. Labour Law and Social Security. decisions concerning constitutionality of statutes) are final and universally binding. Already in the mid-1990s." The Supreme Court's position was that other courts should apply interpretative resolutions of the Tribunal only when 40 they agreed with the latter's interpretation. In principle. the Tribunal had begun to develop the technique of "interpretative decisions. when discussing the authority of interpretative decisions. as in many other countries. item 352). this has not produced any open conflicts with the Tribunal. where the Supreme Court has refused overtly to accept an interpretation established by the Tribunal. 10 Resolution of February 21. The former represent a type of judgment on the constitutionality of a statute and follow the Italian pattern of sentenza interpretative. On the other hand." and that all courts and judges are required to apply such interpretations as may be 39 Initially. 39 Almost immediately. 1995. the judges are bound "only by statute. On two occasions. and examples of independent judicial refusal to apply "unconstitutional" statutes remain isolated and limited to matters not yet decided by the Tribunal. It was the exercise of that latter competence that first produced conflicts between the Constitutional Court and the Supreme Court. has emphasized that the Constitution allows for the use of "interpretative decisions. on equally numerous occasions.Garlicki I Constitutional courts versus supreme courts Until now. However. The latter were issued by the Constitutional Court in the exercise of its other competence. namely. No. the process of constitutional adjudication necessarily involves the interpretation of statutory provisions by the Constitutional Tribunal. the Supreme Court openly refused to apply interpretative resolutions of the Tribunal. 190.Jurisprudence of the Chamber of Administration. relating to the interpretative decisions of the Constitutional Tribunal. § 1. in 1996 and 199 7. . 1996." but. a question arose as to whether other courts and judges were bound to follow the interpretations established by the Constitutional Tribunal. 23. HIARN 93/95 (OSNAPiUS 1996. But in numerous obiter dicta. at the same time. the Supreme Court judges.. The same discussion continued under the 199 7 Constitution.e." Potsh CONsT. No. art. the establishBRUNNm & LEC GARUCm." which confirm that a contested provision is constitutional only if understood in a manner prescribed in the operative part of the judgment. as yet. the application and interpretation of ordinary statutes are the province of the Supreme Court and to the High Administrative Court. A more sensitive area of confrontation relates to the powers of statutory interpretation. VERAsment of "universally binding interpretation of statutes" (see GEORG sUNGsGEmcrrSBAMmT IN POLEN: ANALYSEN UNDENTSCHmUNGSSAMMUNG 1986-1997 [CONSrmnONA LAW JURSDIMTON IN POLAND: CoLLEcrm ANAYsEs AND DEcLsIONS 1986-1997] ) 67-68 (Nomos 1999). I PZP 2/95 (OSNAPiUS . 1995. in Poland. have observed that-under the delimitation of competences established in the 199 7 Constitution-they are not obliged to follow the Tribunal's interpretation.

60 I-CON January 2007 Vol. Poland may be regarded as a unique example of "constitutional activism" on the part of ordinary judges. On the one hand. has the power to decide on constitutional complaints. even when the Tribunal finds that the contested statute is. Nevertheless. In the Czech Republic. the Tribunal refrains from making its own interpretation and assesses the constitutionality of the existing interpretation. there remains a significant area of potential con41 flict between the courts. but. the constitutional delimitation of the competences of different courts is not clear. but not the manner of its application in an individual case. it is no different from several other countries of the region. supra note 3 7... and that court may not be ready to take into account all aspects of 4 2 the Tribunal's judgment. The authors of the 199 7 Constitution did not provide a solution. unconstitutional. they were unwilling to accord the Constitutional Tribunal a superior position within the judicial branch. There are two principal obstacles to the elaboration of a consistent modus vivendi between the two Polish courts. The party who prevails in the constitutional complaint procedure must then petition the ordinary court to reopen his or her case. The constitutional complaint may be raised only against the legal provision on which an individual judgment is based. The Czech Supreme Court openly revolted against the Constitutional Court's decisions. for example: [T]he issue of the binding force of the Constitutional Court's precedents grew into a major systemic crisis. the Tribunal is usually confronted with judgments already made by the Supreme Court or by the High Administrative Court. it does not allow for the possibility of directly challenging the constitutionality of an individual judgment or decision. claiming that 41 For more detailed presentation. Furthermore. the Tribunal lacks a mechanism by which to impose its legal positions on the other Courts. unlike its Italian homologue.. each of the courts can claim the same competences. it does not automatically invalidate the individual judgments and decisions that applied that provision. 5: 44 included in the operative portion of a Tribunal judgment. . indeed. But the Polish version of constitutional complaint remains limited. On the other hand. Since such complaints are admissible only after appellate procedures have been exhausted. Thus. As a result. See Garlicki. with respect to the existence of conflict between the superior courts. the Tribunal reviews the law per se. the Tribunal adopted and developed the living law approach: once a clear interpretation of a legal provision has already been established in the case law of the Supreme Court (or the High Administrative Court). 42 One may recall a recent controversy concerning the scope ofreopening the cassation proceedings before the Supreme Court that found its resolution only when the legislature "helped" the Tribunal by adopting necessary amendments to the Code of Civil Procedure. supra note 3 7. At the same time. see generally Garlicki. It is true that the Polish Tribunal.

DemocraticRepresentation. in particular. See also Pavel Holldnder. The Constitutional Court. As Sadurski notes.. supra note 2. in Hungary.' . The Role of the Constitutional Court for the application of the Constitution in case decisions of ordinary courts. "[Riussia provides a good example of such a conflict. ranked among the most active courts in the region. deeply suspicious of the Constitutional Court and its new philosophy.. in CoNsTrnrnoAIAL JuSncE. 86 ARcnIv FUR REcsrrsuNa SozILPHILmsoPHIE 537 (2000). supra note 2. under the presidency of Ldszl6 S61yom. . See also Jiri Priban. despite profound differences in their legal traditions and political history. at 20-21. at 204-207. It is only in regard to sub-statutory acts that the regular courts may directly apply the Constitution rather than the act." Sadurski.. it resulted 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. The ordinary judiciary was supported and praised by a part of a domestic legal scholarship. . See Schwartz. at 83.43 Tensions of a similar nature have also become apparent in other countries of the region. either in abstracto or in concrete cases. the "living law concept"). RIGHTS BEFORECoURTs 21-23 (Springer 2005).. The expression "war of judges" was 11Zdenek Kuhn. The Constitutional Court repeatedly quashed decisions of the ordinary judiciary in which the ordinary courts had opposed the constitutional jurisprudence. 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.. JudicialPower vs. The HungarianApproach to ConstitutionalReview: The End of Activism? in CONS'rUTIONAL JUSTICE. it has developed several techniques of review of the jurisprudence of ordinary courts (in particular. 11 The Hungarian Constitutional Court.Garlicki I Constitutional courts versus supreme courts the latter's opinions are not binding on the Supreme Court since the Continental legal system was not based on the system of precedents. supra note 2. the issue is still far from being resolved. 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. Although tensions have eased since 2000.. taking the form of a binding interpretation of the Constitution. in a decision of 16 June 1998. WojcmcH SADURsI. reminded the courts that it was itself the only body competent to decide upon issues of constitutionality. 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"). While it does not have direct powers to review the constitutionality of individual judicial decisions. supra note 38. at 223-225. 45 Nor are such tensions foreign to Western European systems..44 but also in Russia. 45 The Russian courts attempted to establish their autonomous right to set aside unconstitu- tional statutes. supra note 43.

Herbert Steininger. the Conseil is equipped with no procedural mechanism by which to impose its interpretations on the Cour de Cassation and the Conseil d'ttat."] Francis Delp6r6e Belgique.46 while the Austrian Supreme Court expressed clear opposition to proposals to extend the procedure of constitutional complaint. Empfiehlt es sich. at least since 19 71. far from being generally accepted. Conflict between Tribunal Constitucionaland TribunalSupremo--A NationalExperience. The authority of numerous opinions of the constitutional jurisdiction runs into real resistance. 47 and in Spain an endemic conflict sur4 faced suddenly in 2004. the Conseil has developed a vast jurisprudence on fundamental rights and resorts frequently to various techniques of "conforming interpretation" (interpretationconforme). . (I'CON) 151-162 (2006) (offering another interesting presentation of this conflict and discussing several earlier clashes between the two courts). That the Conseil Constitutionnel finally 46 "Tout ne va pas pour le mieux dans le meilleur des mondes.Constitution.. Juliane Kokott. Spain: Qui Custodiet Ipsos Custodes?: The Struggle for Jurisdictionbetween the Tribunal Constitucional and the Tribunal Supremo. XX ANNUAIRE irNATIONALE DEJUSTICE CONSTITTmONELLE 176 (2004). However. the viability of the Conseil's legal positions has depended on the voluntary compliance of other jurisdictions. has evolved into a far-reaching institutional conflict.' following an equally unprecedented ruling of the Tribunal Supremo condemning the judges of the Tribunal Constiticional to a fine of 500 euros each. Les relations entre la Cour d'arbitrage et les deux autres jurisdictions suprmes. Leslie Turano. 5: 44 recently used in connection with developments in Belgium. in THE FUTURE OFTE EUROPEAN JUDIciAL SYsTEm INA CoMINR'Arvw PERsPEcnvE (Ingolf Pernice. experience moments of tension. CoNsT. Cheryl Saunders eds. Nevertheless. the Court of Cassation and the Council of State. XX ANNuAm NrERNATIONALE DEJUSTICECONSTITUTIONNELE: ESPAGNE [CONSTrrroNAL JusrncE ANNUAL: SPAIN]. under the headline 'A constitutional crisis. In February [2004] the then three living former presidents of the Constitutional Court issued an unprecedented public declaration. la Cour de cassation et le Conseil d'ttat. die Zustandigkeiten des Verfassungsgerichtshofs durch Enfuhrung einer umfassenden." ["Not everything goes better in the best of worlds. 4 INT'L J. in VFAssuGcsrAG [CONsTrrnoNAL DAILy] 1994 (Verlag Osterreich 1995). the constitutional court of France is in the weakest position. 18 7-189 (2004). see also Francisco Javier Matia Portilla. 17 41"After more than a quarter of a century since the coming into force of the 19 78. auch Akte der Gerichtsbarkeit erfassenden Individualverfassungsbeschwerde zu erweitern? [Is it advisable to expand the responsibilities of the Constitutional Court through the introduction of an individual constitutional complaint that is comprehensive and covers acts of jurisdiction?]. L. who quotes the opinions of Jacques Van Compernolle and Marc Verdussen. Nomos 2006) 111. 1 In the specific context of this discussion. the respective place of each of the Spanish top courts. The relations between the Court of Arbitrage and the two other supreme jurisdictions. Since the Conseil Constitutionnel decides on the constitutionality of statutes only in a procedure of a "preventive review. L'autorit6 de plusieurs arr&s de la juridiction constitutionnelle se heurte Ade veritables resistances.62 I-CON January 2007 Vol. This solution reflects the initial resolve to separate the Conseil from the judicial branch. connaissent des moments de tension." Pedro Cruz Villal6n." there is no direct link between the jurisdiction of the Conseil and the judicial implementation of statutes. Espagne.

3. rdponse d ChristianAtias [Constitutionaland Civil Law Reports. 51 In other words. A state of persistent or endemic tension seems to be as natural for the developed democracies as for the postcommunist newcomers. at 21. Conclusion: Endemic tension or unavoidable conflict? Several general observations may be submitted in conclusion.1. at 110-111. TUTIONNEL [LANDmARu DECISIONS eds. supra note 48.Garlicki I Constitutional courts versus supreme courts managed to win recognition from other jurisdictions49 must be attributed to the intellectual caliber of the Conseil's case law as well as of those. Heun.C. particularly in the traditional area of the civil law. this cannot but produce problems in mutual relations. Lesfondements constitutionnelsdu droit civil [Constitutional bases of civil law]. CONsTITImoN OF THE RePiuc] 50But conflicts between jurisdictions remain constantly present.D.7 REVUE FRAN AISEDE DROrr CONSTITrunoNH l [R. 2 REVUE TRIMMsRM. Jean Yves Cherot. 2005). the existence of a certain level of conflict or. supra note 43. GRNoEs DECISIONS DU CONSEIL CONSTIOF THE CONsTItTONAL COUNCIL] 163-169 (Louis Favoreu & Loic Philip.F. But it would be naive to suggest that any pattern of coexistence could be completely free of tensions and problems. to put it more mildly.D. in particular. 436 (1991) (Fr. While the Kelsenian model has proven to be efficient and attractive in Europe. certain tensions among the courts constitutes a necessary component of every system of centralized judicial review. Sometimes it may develop or. a pattern of conflict between these courts on the one hand and the supreme courts (plus other ordinary courts) on the other. e. Aix-Marseille 1994).g. '5 2 This may be 4 See. It was recently observed that there is "a more general trend that whenever constitutional courts have been established in post-authoritarian countries. an exchange of views of Franqois Luchaire. [General introductory report] in LA CoR DE CASSATION ET LA CONSTITUTION DE LA RE UBuOuE [ThE COURT OF CASSATION AND THE (Presses Univ. for illustration. Once a distinct constitutional court coexists with one or more supreme courts. A systemic tension First. Louis L.. a Response to Christian Atias].] 435. . it would be erroneous to regard such tensions as an aberration that should not exist in the judicial system of a democracy. s1Similarly. La civilisationdu droit constitutionnel.). supra note 11. Hence-and this is my first concluding remark-the presence of tensions among the highest courts is systemic in nature. 0 3..C. Rapport gdn~ral introductive. Christian Atias. 7 R. who-like Louis Favoreu-provided a conceptual framework for that case law." and only then would the relations between courts approach an aberrational level of conflict.E DE DROrr cnla 245 (1982). See. Pavoreu & Thierry Renoux. at 162. 441 (1991). Turano. has emerged. rather. Les rapportsdu Droit Constitutionnelet Droit Civil. 12 Sadurski.F. degenerate into a "war of courts. Dalloz-Sirey 13th ed. 439. it contains also some builtin deficiencies.

the evolution of relationships among courts is necessarily conflict-free. Clark.. Sadurski. in COMPARATIVE AND PRIVATE INTERNATIONAL LAW: ESSAYS IN HONOR OF JOHN HENRY MERRYMAN ON His SEVENTIETH BIRTHDAY. conflicts between courts nonetheless occur in those two countries. 11BRUCE AcKERmAN. many courts. in this context."3 this does not imply that. France and Belgium present the only examples of constitutional jurisdictions that were not established as one of an array of democratization devices. (David S. in the "constitutional temperament" of constitutional judges (who often come from academia. Ruti Teitel. 5: 44 true.64 I-CON January 2007 Vol. Ackerman observes further: "[s]urely it is well within the court's capacity to construe its statutory jurisdiction narrowly. Although a clear connection between democratic transition and the establishment of a separate constitutional court has been observed. . Thus. THE FTrruR OF LImAL REVOLtrnON 143 (Yale Univ.2. Louis Favoreu: American and EuropeanModels of ConstitutionalJustice. 106 YALE L. Press 1992). as a consequence." 14 the desire to amass powers and competences is an aspect of human nature as well as of public bodies. Factors such as professional self-esteem. 51 See. g. In brief." 5 sLeslie Turano. at 161. but it should not be forgotten that the usefulness of the comparative perspective. TransitionalJurisprudence:The Role of Law in PoliticalTransformation. The propensities of judges and the pervasiveness of constitutions The existence of tensions and conflicts between the courts can often be traced to the natural inclination of judges to expand the scope of their authority. 2032 (1996). ed. there is a subjective element in developments at the highest judicial level. sometimes. However different the basic structure of their relations with other courts from what is found in ostensibly classic systems of constitutional review. in countries not haunted by their past. even beyond the limit. supra note 48. e. supra note 43 at 40-58. here. But both of those jurisdictions are hardly typical: the Conseil Constitutionnel emerged in the rather particular context of the beginnings of the Fifth Republic and primarily undertakes preventive review. 5 institutional dignity. Duncker & Humblot 1990). the basis for such conflicts seems to lie in more general structural problems and not solely in the transition from an authoritarian history. s6Several authors note. differences in the professional background and. remains limited due to the fact that almost all the constitutional courts in Europe have emerged in postauthoritarian countries. and not too often from the judiciary) and supreme court judges (who usually spend most of their professional lives within the judicial system). While it seems legitimate to ask "whether it is prudent to make use of power that will lead to political catastrophe. have made many efforts to exploit their powers to the limit or. sometimes from politics. 3. the Cour d'Arbitrage emerged from the equally distinctive process of Belgian regionalization. and even simple dislike of competitors 6 may also contribute to a certain expansionism on the part of the courts.J. constitutional as well as supreme. Over the last decades.

the former permeates the entire structure of the latter. arriving at ground already occupied by the supreme courts and trying to interfere with the well-established practices of the judicial branch. Two developments. Thus. . other courts claim an independent competence to examine the constitutionality of statutes and to refuse the application of unconstitutional statutory provisions. hence. in that supreme courts have a longer history and greater experience than constitutional courts. the real conflict develops within the area of what may be termed "negative" lawmaking. it is impossible to delimit any clear border between the constitutional law and the rest of the legal system. originating in the evolution of the role of modern constitutions. Thus. This has the effect of making the constitution relevant. just as it is true that traditional spheres of law have a longer history and more-developed jurisprudence than constitutional law. at least in Europe. Constitutional courts are sometimes depicted as newcomers. to disputes arising within the traditional areas of law. where the previous supreme courts had to be "revitalized. The upshot is that the functions of constitutional courts and those of ordinary courts are bound to overlap. 57See Sadurski. a useful tool in disputes before courts. supra note 43. these same countries also account for most of the "constitutional court" countries in Europe. as well. First is the judicialization of constitutions. there is no reason to ascribe more seniority to the supreme court than to the constitutional court. This may be true. As long as we are in the domain of constitutional law. In effect. the more basic reason for tension is an objective one. and this cannot but produce tensions and conflicts. and both have had to establish their place in the evolving constitutional context. both the constitutional and the supreme courts have had to approach this new constitutional paradigm at the same time.Garlicki I Constitutional courts versus supreme courts However. The second element is the constitutionalization of specific areas of law. only within the last six decades in the West and two decades in the East. whereby the constitution becomes a legal instrument directly applicable before all courts and. at 19-25. This is exactly the age of most constitutional courts in the region. mentioned in the initial section of this article.5 7 While no one challenges the constitutional courts' sole discretion to invalidate-with an erga omnes authorityunconstitutional statutes. But the modern understanding of a constitution emerged. meaning that ordinary statutes are applied and interpreted on the basis of constitutional principles and provisions. A preference for "positive lawmaking" It is the power to find statutes unconstitutional that is sometimes identified as the main area of conflicts between the courts.3. are particularly important factors. 3. This is particularly true for the postauthoritarian systems." Now.

the influence of the country's legal tradition. 3. the statute survives. While the incidence of creativism. Suffice it to say. Quite often. Thus-my next concluding remark-the main body of conflicts between the courts develops within the area of interpretation. to realign the statutory law with the national constitution. Statutory interpretation has always been among the competences of the ordinary courts. conclusions proposed by each of those courts may not always be the same. the authority of the national constitution. From this perspective. In effect. they seek. has varied among different countries and different historical periods. contemporary constitutional courts focus more on the constitutional interpretation of statutes than on declarations of unconstitutionality. However. so called. It is scarcely necessary to repeat that.66 I-CON January 2007 Vol. All the partners within the judicial branch agree that this power should remain reserved to the constitutional court. Also. It is not necessary to raise here the question of the legitimacy of this version of judicial review. Thus. that is. within the area of positive lawmaking. the constitutional setting differs considerably from one country to the next. It seems that many. However. But. rather. the balance of power between the courts depends mainly on the scope of competences vested in the constitutional court. and positivism. at least by the realists. All . The established rules of the political culture. Once the process of the constitutionalization of particular areas of law had emerged. it has always been recognized. so called. in this respect. in several other countries (such as Germany and Spain). 5: 44 This may be true in respect of some countries. and the authority of the parliament delimit what area is left for the judicial branch and determine the ways and means of conflict resolution. although its meaning and scope of operation may change considerably in the process.4. this is the reality of the jurisprudential activity of constitutional courts in most contemporary systems. to establish an interpretation of the statute in question that allows it to survive judicial scrutiny. It alters the traditional balance of powers between the constitutional court and the parliament and also has a profound impact on the relations within the judicial branch. the Polish example being one of the most prominent. the constitutional courts themselves do not regard the invalidation of statutes as their main tool in deciding constitutional issues. there are profound differences among the constitutional court countries. that judicial interpretation entails some component of lawmaking. The weaker position of constitutional courts The outcome of those conflicts depends mainly on the general environment in which the judicial branch operates in a given country. the courts began to use constitutional provisions in the process of statutory interpretation. constitutional courts act more often as positive lawmakers than negative ones. This means that both the supreme court and the constitutional court strive. if not most. the ordinary courts show comparatively less interest in taking final decisions on unconstitutionality. simultaneously.

The limited versions of the Verfassungsbeschwerde (Poland. yet it is still not enough to compel other courts to follow the "constitutional" interpretation of statutes as estabfished by the constitutional court. Of course. Spain. and it leaves to the same court the final decision as to how to apply the constitutional court's judgment. if it finds that a court has applied a statute in an unconstitutional manner. Even in those countries. On the other hand. This gives them.is deprived even of such possibility. however. It may be argued that only in those countries (Germany. in the last three decades. instead. Only in this way can the constitutional court set aside any judicial decision. and procedures before. Only in a few countries have constitutional courts been given legal instruments adequate to control the case law of ordinary courts. the Conseil has appeared more and more successful in that persuasion. effectively. the Czech Republic. Hungary. the last word in conflicts with parliaments. As it has already been mentioned. the court always has the competence to invalidate a statute. the constitutional courts varies considerably. But such a drastic option may be exercised only in exceptional circumstances and can hardly be reconciled with the court's preference to remain within the arena of positive lawmaking. s9The Conseil Constitutionnel. they are able to impose their legal positions on all other branches of government and all other segments of the judicial branch. 59 One of the grounds for such invalidation may be that the practice of the ordinary courts has constructed the statute in a manner incompatible with the constitutional interpretation established by the constitutional court. Thus. The positive powers of constitutional courts remain. . on positive constitutional/statutory interpretation. Austria. Slovakia) that have adopted a genuine concept of constitutional complaint (Verfassungsbeschwerde)5 is the Constitutional Court sufficiently equipped to impose its legal positions on other segments of the judicial branch. Other procedures do not offer such a possibility. as long as they are willing simply to delete unconstitutional statutes. less formidable. the current activity of many constitutional courts has become focused. Constitutional courts were conceived as negative lawmakers and. VEFASSUNSGERIChITSBART IN POLEN [CONSTITUTIONAL COMPLAINT IN POLAND] 48-52 (Nomos 1999). constitutional courts are unable 11See Brunner's distinction of "echte" and "unechte" procedures of constitutional complaint in GEORGBRUNNER. Systems based on the abstract review of statutes (France) separate the judicial review from adjudication of individual cases. persuasion seems to be the only way to convince ordinary and administrative courts to follow the Conseil's interpretation of the Constitution. due to the French system of contr6leprgalable. Russia) are focused on the review of statutory provisions and do not allow for direct invalidation of individual judgments.Garlicki I Constitutional courts versus supreme courts constitutional courts have the power of judicial review and invalidation of unconstitutional statutes and statutory provisions. The procedure of incidental referrals of constitutional questions (Italy) is dependent on the initiative of the court a quo. The spectrum of other powers of.

Thus. nowadays. 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. in case of conflict. 5: 44 logistically to intervene in all but exceptional cases. . they are not always able to deliver that last word. That is why the interpretation of statutes (which. always takes into account the provisions of constitutional law and supranational law) remains primarily within the province of the supreme courts. My final concluding remark is that constitutional courts appear as weaker participants in that process and. for the constitutional court. dialogue and persuasion seem to be more effective than open conflicts and confrontations with other jurisdictions.68 I-CON January 2007 Vol.6 0 60 Mutatis mutandis.