Izvorni znanstveni članak
On reception of changes that appear through constitutional practice and other case law in substantive law of the legis causae state
Nikola Gavella
; Professor emeritus, Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
When conflict of laws rules of the forum law refer to the substantive law of another state (lex causae), a rule is that a court or another competent authority of a forum state should act in a manner in which the legis causae authority would act (a prerequisite is that under forum law, the foreign law is applied ex officio). The application of such a rule should not be problematic when the lex causae changed, if the change was introduced by a provision of law, and the legis causae authority (judicial or administrative body) strictly follows the principle of legality. In addition, the application of a new provision should not be problematic when the provision of law which would usually be lex causae was put out of force by an express decision of the constitutional or other appropriate court. In the Croatian legal order, the Constitutional Court shall, in its procedure of evaluating compliance of laws with the Constitution and the compliance of other acts with the Constitution “abolish a law or some of his provisions if it finds that it does not comply with the Constitution or abolish another act or some of its provisions if it finds that it does not comply with the Constitution or another act”. In that manner, what was abolished will not be valid from the day of publication of the decision in “Official Gazette”, if another period is not determined by the Constitutional Court (55/1-2 Constitutional Act on Constitutional Court of RoC). And if the Court determines that human rights and fundamental freedoms guaranteed by the Constitution are violated by some act or that individuals, groups or associations are put in more or less favourable position by an act – it will revoke such an act by its decision (55/3 Constitutional Act on Constitutional Court of RoC) . In all the mentioned cases, the competent authority of the forum law will easily conclude which substantive law provisions the judicial or administrative authority of legis causae state would apply, considering the changes which appeared. In addition, it will easily perceive when those changes appeared.
However, in cases when lex causae can be influenced by constitutional court case law, or any other case law which does not directly change the provisions of substantive law (it does not replace them, revoke them or set them aside), but expresses a different, even an opposite comprehension of provisions – a question will occur how would a legis causae authority act in such a situation? This is actually a possible non-institutional influence of constitutional practice and case law and of practice of other pubic authorities on the operation of legis causae authorities. If there is such a non-institutional influence, a question rises – should it be taken into account when assessing how would in a particular case a legis causae authority act, and if yes – from which moment is such an influence authoritative? In order to reach an answer, we should observe the understandings of the Constitutional Court of RoC expressed through its decisions and orders delivered in procedures for protection of human rights and fundamental freedoms guaranteed by Constitution. Since the Constitutional Court is the highest legal authority in Croatia, the practice of other courts and administrative authorities could not influence the Croatian substantive law more than the Constitutional Court case law. It is not difficult to notice that whatever was decided by the Constitutional Court in the procedure for protection of human rights and fundamental freedoms did not directly change the substantive law. Standpoints taken by the Constitutional Court in these proceedings do not directly affect the substantive law, even though the standpoints can be seen from the explanations of decisions published in “Official Gazette”. However, although there is no direct influence of the standpoints taken by the Constitutional Court in the procedures for protection of human rights and fundamental freedoms, there is an indirect influence of those standpoints.
Due to stringency of used argumentation and due to authority of the Constitutional Court, its standpoints taken in procedures for protection of human rights and fundamental freedoms will affect decision-making in judicial and administrative proceedings. From there, a case law of interpretation and application of substantive law will be formed, as usually formed under activities of the Supreme Court of RoC and other higher courts. The same can appropriately be applied on the practice of administrative authorities. If the judicial or administrative practice deviates from the previous interpretation and application of substantive law provisions, through that judicial or administrative practice as a factual legal source, substantive law will change, or to be more exact – its interpretation and application. If such changes of Croatian substantive law occur, they should be considered by a competent authority of the forum law, since they would be considered by a Croatian authority, being a legis causae authority.
When assessing whether modifications of Croatian substantive law occurred through judicial or administrative practice, it is necessary to thoroughly assess whether a practice of interpretation and application that deviates from the previous interpretation and application was formed, what kind of practice and since when is it operative. This assignment is neither easy nor simple, and it is especially difficult to determine when the changes of substantive law through practice appeared. If the forum authority does not manage to determine with reasonable certainty whether judicial or administrative practice on provision in question was formed, or does not manage to determine whether the substantive law was modified through practice and if it does not determine that the change appeared in time relevant for the assessment – we think that there are not enough evidence to deem that Croatian authority, being a legis causae authority, would act as if the law was changed. If it is not certain that some provisions of substantive law changed under indirect influence of judicial or administrative practice, that under such an influence previous interpretation and application of those provisions changed, Croatian authority should apply those provisions unchanged (notwithstanding eventual different standpoint taken by the Constitutional Court of RoC in its decisions or orders, delivered in procedure for protection of human rights and fundamental freedoms guaranteed by Constitution). Having that in mind, competent forum state authority whose conflict of laws rules refers to application of those substantive provisions, should apply those provisions unchanged – notwithstanding eventual different standpoint taken by the Constitutional Court of RoC in its decisions or orders, delivered in procedure for protection of human rights and fundamental freedoms guaranteed by Constitution.
Ključne riječi
lex causae; provisions of laws; constitutional practice; case law; procedure for protection of human rights and fundamental freedoms guaranteed by Constitution
Hrčak ID:
93125
URI
Datum izdavanja:
3.5.2012.
Posjeta: 1.474 *