Review article
Limits in constitutional adjucation initiated by constitutional complaint
Dubravko Ljubić
; Ustavni sud Republike Hrvatske
Abstract
The Constitutional Court in Croatian constitutional law organisation is the highest constitutional body of its kind in whose authority the protection of the supremacy of the constitution lies. It exerts its authority in the protection of constitutional rights infringed by certain legal acts of judicial bodies by way of the institute of constitutional lawsuit. In the case of assessing the material legal contents of certain acts with the contents of the basic norm, the Constitutional Court must retain its constitutional position refraining from encroaching into the powers that the regular courts have
in a specific case. In order to be able to fulfil its authority and that, in doing so, its activity does not overlap with the authority of regular courts, the Constitutional Court must build its own system of competent rules to justify its activity in proceedings initiated by constitutional lawsuits. Assessing the harmonisation of the material legal contents of a certain act with the contents of the basic norms, the Constitutional Court must react in all those situations where the particular disputed act is not founded on competent regulation. This is independent of the fact of the general non-existence of legal basis of decision making or where decision making in the disputed legal situation is carried out on the basis of obvious and serious error in the choice of legal foundation. Every act of the judiciary body which has no basis in major premise is an act of self-volition and as such must not generate legal effects. The Constitutional Court must act in every situation where the certain act is in opposition to recent court practice. Legal standards like the standard established by the basic norm are not always explicit. Therefore, in practice, many situations arise in which legal provisions are developed through court practice. In all of these cases where the individual act deviates from the usual practice of regular courts in a way that it is in obvious opposition to it, that act can be characterised as being legally unfounded or arbitrary. Limiting the powers of the Constitutional Court and of regular courts is demanded by situations in which the regular courts interpret the content of legal regulations during their application in the concrete case. Most constitutional good is protected by the Constitution derogably. The constitution maker can give the legislation generally or specifically established optional authority to create limitations to fundamental human rights and freedoms. This occurs if there is justifiable constitutional need for some other constitutionally protected good on condition and in the manner regulated by the constitution.
Every legal formulation of a certain constitutional right contains limits arising due to other people’s rights from the fact of communal living.
Constitutional rights cannot be excessively limited leading to rescinding the essence of constitutionally protected good.
Legislation is not authorised to formulate legal frameworks to achieve certain acts or states, even when constructional authority exists, in the measure and in the way which is in constitutionally acceptable.
Interpreting the law on the part of regular courts in a concrete situation must not lead to a result which the legislator in normative activity would not be authorised to prescribe. Contrarily, by an individual act the constitutionally protected good is infringed upon, the content of which is formulated by general norm. This is because the activity of the regular court is limited by constitutionally acceptable limits.
Keywords
Constitutional Court; regular court; constitutional adjudication; rule of law; principle of constitutionality and legality; legal security; constitutional appeal; limiting authority; material legal content of a certain act
Hrčak ID:
100308
URI
Publication date:
15.4.2013.
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