Almanac

Doc. JUDr. Ján Mazák, PhD.
President of the Constitutional Court of the Slovak Republic

JUDr. Gabriela Dobrovicová,
Candidate of Sciences Adviser, Constitutional Court of the Slovak Republic

Fundamental Rights Protection and Abstract Constitutional Review after the Amendment to the Constitution of the Slovak Republic in 2001.
Fundamental Rights Protection and the New Type of Complaint Introductory Remarks

Since 1993 the protection of individual fundamental rights and freedoms in the proceedings before the Constitutional Court of the Slovak Republic (hereinafter as Court) has been developed in two principal trends under the Slovak constitutional conditions. Both, the natural and legal persons, until 1 July, 2001 were allowed to appeal to the Court by filing a petition for commencement of proceedings pursuant to Art. 130 (3) of the Constitution of the Slovak Republic (hereinafter as Constitution) or in exactly specified cases by the instrument of a constitutional complaint as set forth in Art. 127 of the Constitution, effective until 1 January, 2002.

The outcomes of such fundamental rights and freedoms protection constitute available sources of this information, on the development of such a protection and results in different cases.

An essential change occurred following the amendment of the Constitution enacted by constitutional statute 90/2001 Coll., (hereinafter as amendment of the Constitution). Art. 127 has become a basis for the revised concept of proceedings on complaints. The purpose of this new power of the Constitutional Court lies in the philosophy that after the motion on commencement of proceedings had been quashed, the complaint remained the only constitutional instrument giving a direct access to natural persons and legal entities to the protection of the constitutionality towards to fundamental (human) rights and freedoms provided by the Court.

Proceedings on Complaint
2.1 On some Procedural Requirements

The Court may hold proceedings and decide on the complaint only in case that during the preliminary discussion, following the proceedings have been commenced, (Art. 25, Constitutional Court Act) it finds that all constitutional an legal (procedural) requirements have been met in the complaint to be accepted for further proceedings and to be decided on the merits.

Complaint

The essential procedural requirement on the proceedings related to the fundamental rights and freedoms protection shall be a complaint that fulfils all the terms defined by law. The mentioned terms shall be those the presentation or submission of which the Court will find sufficient for the purpose that the complaint not to be rejected due to the lack of requirements, stipulated by the law; or the case considered a complaint would be suspended pursuant to § 23a, of the Constitutional Court Act. The given provision allow the Court to suspend the motion if this shall be found evidently unqualified petition for commencement of proceedings and no remedy might be reached upon the appeal and notice of rights, delivered by the Constitutional Court.

The complaint shall have the general requirements (§ 20 Constitutional Court Act). One of the requirements shall be the authorisation for the attorney or commercial lawyer which shall explicitly specify the representation before the Constitutional Court. Failure in submitting the said authorisation, even an additional one upon the Court's notice, shall result in dismissal the complaint due to lack of requirements stipulated by the law. The purpose of obligatory legal representation in the proceedings on complaints shall be a filter that would eliminate unqualified and unsuccessful complaints. Under certain circumstances, the Court may, unless it is an evidently unsuccessful application related to protection of the constitutionality, appoint an attorney on the expenses of the State.

The complainant may, in addition to allegation that fundamental right or freedom has been breached or requirement that a decision, measure or any other encroachment that resulted in such breach of right or freedom to be quashed, propose to the Court to:

a) order that the party, violating the fundamental right or freedom through omission, shall try the case under special regulations,
b) revert the case to further proceedings
c) prohibit continued violation of fundamental right or freedom
d) order to that party which has violated fundamental right or freedom to recover the state, prior to the violation of fundamental right or freedom
e) to impose on the violator of the fundamental right or freedom an obligation to pay appropriate financial compensation
f) decide upon temporary injunction or postpone the enforceability of the final decision, measure or intervention.

The special requirements are the following:

a) specification of the fundamental right or freedom which, upon the complainant's allegation, have been breached,
b) final decision, measure or any other encroachment causing the breach of fundamental right or freedom,
c) specification of the subject against whom the complaint has been raised,
d) a copy of a final decision, measure or evidence on any other infringement,
e) should the complainant demand an appropriate financial compensation, the specification of the amount and grounds for a claim
f) grounds for application of temporary injunction or enforceability suspension

Constitutional Court's Jurisdiction and Subsidiarity Principle

Another procedural requirement in the proceedings upon the complaint shall be the Court's jurisdiction, which, pursuant to the subsidiarity principle, shall be given if the following two basic conditions are met. Under the Article 127 (1) of the Constitution and in a compliance with the provision 49, Constitutional Court Act, the Court's jurisdiction shall be to protect fundamental rights and freedoms unless such a protection falls under other court's jurisdiction.

The aforesaid condition has not been met by exhausting all the regular legal remedies available within the general court system. The cited Article of the Constitution shall be applicable to the court which, in compliance with the general jurisdiction pursuant to Art. 142 (1) of the Constitution shall also have specified jurisdiction stipulated by the law, on fundamental rights or freedom protection. Respecting this, it shall have no constitutional significance, whether there is a court against which a legal remedy (regular or extraordinary) will be raised or the application of legal remedies is limited (for instance in the event of charging order, appellate court's and cassation courts decision). Such applicable legal remedies might be even excluded, as it can happen in the proceedings upon the appeal against administrative courts final decisions being held within the administrative court system (§ 244 and following of Civil Procedure Code). I would like to conclude the issue on the subsidiarity principle effect by saying that it is sufficient if the specific fundamental right or freedom protection falls under the jurisdiction of another court.

The concept "another court" shall involve any court having general jurisdiction pursuant to the Art. 142 (1) of the Constitution and such a jurisdiction shall be applied to fundamental right or freedom protection upon a legal basis, exercising constitutional regulation of fundamental right or freedom protection. So the concept other court means the whole system of general courts regardless to the functional principle, applied by such a system in a particular case falling under the general courts jurisdiction (as a rule under criminal, civil, public and especially under administrative courts jurisdiction). The adversary conclusion according to which there shall be no other court if no regular or extraordinary legal remedy is applicable, would result in an inadmissible extension of the general court system by the Constitutional Court. Moreover, under such circumstances the Constitutional Court would assume a position of other appeal instance, i.e. the third appeal level (should the second appeal be inadmissible) or even the constitutional court would receive the status of the fourth remedial instance (in the cases when the second appeal is admissible).
However the Constitutional Court may not be incorporated in such a manner into the general courts system since both systems, the constitutional and the general courts jurisdiction work relatively independently and have their own powers. This is why the Constitutional Court, in a compliance with its own powers, shall be authorized to protect fundamental rights and freedoms only in cases if:
a) such a protection does not fall under the jurisdiction of another court
b) fundamental rights or freedoms have been violated by a general court due its decision, action or other infringement and provided such decisions, actions or other infringements are related to the right to judicial protection and fair trial principles.
This is supported by an experience according to which another court may hold proceedings to protect fundamental right or freedom, and the concerned parties before the court shall be the subjects claiming such a protection and the person (natural, legal entity or state) which are alleged to breach such a fundamental right or freedom. For this reason it may be found unreasonable that another court after development of the whole procedural system related to the proceedings held before such a court, should become a kind of secondary violator of the fundamental right or freedom which it shall protect upon specified constitutional and procedural (legal) principles. Those principles are consolidated in Art. 46 and following provisions of the Constitution as well as in the particular procedural codes (Civil Procedure Code, Criminal Procedure Code), which regulate the procedures applied by the general courts in the proceedings under Article 142 (1) of the Constitution. If only the above principles are breached this would result that another court has breached a fundamental right or freedom. Basically, this shall not concern such fundamental right or freedom which were to be breached by some other subject within the pre-procedural stage of proceedings held before another court, however this shall be applicable to such fundamental right (or freedom) that regulate the access to the court and the fair trial principles.

Pursuant to the Constitutional Court's case-law (II. ÚS 54/02 and II ÚS 4/94, II. ÚS 3/97) the allegation regarding the fundamental right or fundamental freedom violation itself, limiting the access to the court or fair trial principles during the proceedings before a general court might result in a conclusion that the Court's power has been constituted. The finding of such a violation would lead to providing a protection to the complainants that the Constitutional Court would decide on the individual complaint to the extent of its power.

The second condition that is to be met in principles and upon which the existence of the Court's power is proved, shall be the requirement that the complainant has exhausted all the legal remedies or other legal instruments that were effectively provided to him by the law to be protected his fundamental right or freedom. The next condition is that the complainant will be entitled to such instruments, applicable upon special regulations.

The complainant shall exhaust all available legal remedies (not only the regular ones) and other legal instruments. The complainant shall have to be independently entitled to such instruments and disregarding the said remedy shall depend on actions applied by another public authority, e.g. by Attorney General.

Other legal instruments, pursuant to the new legal regulations, shall be applicable, particularly with respect to the public authorities passivity other than courts which may result in breach of the right to other legal protection as set forth in Article 46 (1) of the Constitution.

In addition to the unreasonable delays in legal proceeding, the Constitutional Court's present case-law has paid interest also to the passivity of public authorities, e.g. to unreasonable delays occurred in taxation law proceedings held before the real estate register bodies. The said trend in the Constitutional Court's case-law has indicated considerable changes particularly due to the amendment of the Civil Procedure Code, passed by law No. 501/2001 Coll., taking effect by 1 January, 2002.

Pursuant to the amended § 244 of Civil Procedure Code, not only the administrative authorities decisions may be subject to review. The administrative body's procedure shall be its activity through which such an authority implements its power specified upon special laws. The said activity shall, as a rule, include an effective procedure based on procedural and material law standards upon which the administrative body shall be entitled and liable to actions taken during the proceedings. However, under the expressive reading of the § 244 (3), Civil Procedure Code, the administrative authority's procedure shall also imply its inactivity. The passivity shall be considered as the administrative body's passivity in the matters submitted to him for decision unless any legal or actual objection has occurred to prevent such an administrative authority from holding proceedings or taking a decision. Following from the above, the Constitutional Court from 1 January, 2002 has no power to decide on procedures or passivity of public authorities. Such procedures shall fall under the appropriate court's jurisdiction within the administrative court system.

The exception to the subsidiarity principle (its restriction) with respect to the exhaustion of remedies or legal instruments is included into the Act on the Constitutional Court. Pursuant to § 53 (2), Act on the Constitutional Court, the Court shall not reject the complaint even though the condition requiring the complainant to exhaust all available remedies or legal instruments effectively provided to him by the law to protect his fundamental rights or freedom, has not been met. Should the complainant prove the said condition was not satisfied due to reasons worthy to special respect the court shall not reject such a complaint. This restriction of the subsidiarity principle shall only mean that during the preliminary hearing, the Constitutional Court shall not reject the complaint only due to the lack of the Court's jurisdiction.

Evidently ill-founded complaint during the preliminary hearing

The Constitutional Court may reject the complaint, found evidently ill-founded (under § 25 (2), Act on the Constitutional Court). Already the present, relatively narrow case-law of the Court Senates indicates that it shall be respected the current decision making activity related to the construction of the term "evidently ill-founded", however it has been formulated upon the motions requiring the commencement of proceedings. The evidently ill-founded complaint shall be stated particularly in the case if such a breach of fundamental right shall be alleged which the public authority could not violate, since the said violation has occurred prior to the proceedings or decision, made by such an authority, for instance by the general court (II. ÚS 54/02).

Complainant and the person against whom the complaint is being raised

The complainant shall be a natural person or legal entity. The condition for such a procedural legitimacy shall be an unexceptional legal personality.
The concept "natural person" as a petitioner in proceedings on complaint we understand in a certain reduced way.
The complainant can be any natural person. Natural persons, however, belonging to the circle having other procedural legitimacy than procedural right to file a complaint, are excluded while the applied complaint would aim at protection of the constitutionality, connected with the constitutional position of such a complainant.
The concept legal person evokes several problems. First of all it is a legal person whom we can delegate or acknowledge a fundamental right or freedom. If it is not possible then the pure fact that the complainant is a legal person is not sufficient for the conclusion that an entitled person has filed the petition. Secondly it cannot be a legal person that is obliged to take part in fulfillment of positive liabilities of the state related to protection of fundamental rights and freedoms. This applies even if we cannot exclude in a concrete case that an encroachment to a legal person's fundamental rights and freedoms is possible.
From wording of Art. 127 of the Constitution it is not clear who can be marked in the complaint as a violator of fundamental rights and freedoms in such a way that the Constitutional Court could consider such a subject or even non-subject a passive, objectively legitimated participant in the proceedings before the Constitutional Court. Starting point for solution of this issue could be a consideration on the fact that who has positive liabilities in protection of fundamental rights and freedoms and at the same time their violation can occur through a lawful decision, measure or other encroachment, i.e. by acts or activities or passivity in relation to the procedural rules of such procedural facts.
There is a basic conclusion there that the complaint can be directed against all the authorities of the public power irrespective if it is a state administration authority or a self-government authority.

The possible violation of fundamental rights and freedoms can be applied in principles in proceedings against other subjects, e.g. professional chambers, civil associations or similar corporations before general courts (principle of subsidiarity).

Term of filing complaints

Under § 53 (3) of the Act on the Constitutional Court a constitutional complaint can be filed within two months, passing from the entering into force of the decision, announcement of a measure, or instruction on other encroachment. This term runs in case of measures or other encroachment from the day when the complainant learnt about the measure or other encroachment. The term is defined for all cases in which natural or legal person requests the protection of a fundamental right or freedom. And this is a significant difference compared to the former petition, filed by a natural or legal person, under the quashed Art. 130 (3) of the Constitution which has not been limited with any legal term.

Counting of the time, however, will be quite complicated. The complexity is raised by the fact that missing the term to file the petition is excluded. As a starting point to count the term will serve the content of the Procedural Rules under which the decisions, measures or other encroachment have been made.

2.2 Recognizing an adequate financial satisfaction

By virtue of the Constitution the Constitutional Court may award adequate financial satisfaction. By its decision to grant a complaint the Constitutional Court may award reasonable financial redress to persons whose rights subject to Art. 127 section 3 have been violated. This constitutional regulation has become the basis for the law. Under § 50 (3) of the Constitutional Act, should the complainant claim appropriate financial compensation, he/she shall specify the extent he/she demands, and give reasons for such a claim.

Under the law the adequate financial satisfaction shall be a compensation for immaterial damage expressed in money. The Constitutional Court Act has used the term "compensation for immaterial damage expressed in money" which is traditionally used in private law (§ 13 of the Civil Code). The legislator wanted to make this way a distinction from other claims as a claim for damages and measure for unjustified enrichment or some other material harm. The adequacy of this solution has been emphasized through the fact that on the recognizing the claim under § 13 of the Civil Code there is a stabile case-law of general courts which could be a kind of inspiration for Constitutional Court decisions. I suppose however that this inspiration is in the level of understanding the content of the concept "compensation for immaterial damage".

The only constitutional precondition for recognizing the financial satisfaction is that the Constitutional Court grants a complaint. It suffices if the court grants a complaint at least partly, e.g. the Constitutional Court announces the violation of a certain fundamental right or freedom, although in the concerned complaint the violation of several rights and freedoms has been challenged.

It follows from the above that the Constitutional Court of the Slovak Republic does not have any other criteria for recognizing satisfaction than the only fact that it grants the complaint at least partly. We regard it the right approach from the legislator not to state any other criteria for settling this delicate issue of effective domestic tool for the reparation of fundamental human rights and freedoms violations. I consider automatic that the Constitutional Court of the Slovak Republic will create the criteria within its decision-making activity. It is evident too that our court will follow the results of the decision-making activity of the European Court on Human Rights under Art. 41 of the Convention as it is shown in the first decisions on acknowledgment of financial satisfaction.
The acknowledgment of financial satisfaction should not be a rule (finally the Convention stipulates too that the just satisfaction is being awarded only if need be). The satisfaction shall not be awarded if the Constitutional Court of the Slovak Republic can achieve the purpose of the proceedings on complaints (protection of human rights and freedoms) by verdicts under § 56 (3) of the Constitutional Act. Such a process is, however, excluded in proceedings where the violation of the fundamental human right to proceedings without unreasonable delays has been challenged under Art. 48 (2) of the Constitution. In this case there is nothing to quash, restore or repair otherwise than by acknowledgement of the satisfaction.

The principle under which the acknowledgement of the satisfaction shall not be a rule shall be reflected in the reasoning of the Constitutional Court decisions. Briefly it is to say the reasoning shall follow the fact that the satisfaction is needed, it is fair and inevitable for completion of the protection of fundamental rights and freedoms.

The satisfaction shall be a compensation for immaterial damage. For this reason it shall be emphasized the immaterial sphere of the complainant while considering its acknowledgement. The mentioned immaterial sphere of the complainant shall be concentrated on the depression, limitation or disabling of the complainant possibilities to assert him/herself in the work, entrepreneurship in personal or social life. Other fields include the violation of one's dignity, psychical status, discrimination of the complainant or feelings of frustration, moral damage or helplessness in relation to proceedings before the violator of rights and freedoms.

Should the constitutional court decide that it grants an adequate financial satisfaction, the authority that has violated the fundamental right or freedom shall be obliged to pay the adequate satisfaction for the complainant within two months from entering into force of the Constitutional Court decision. The Constitutional Court verdict is an efficient executive title and its content is enforceable under general rulings on civil distraint. The payment obligation is directed on the law-breaker (authority) which is a significant difference in compare to decisions under Art. 41 of the Convention where the obligatory subject shall be always the state. This is the reason why it is not possible to demand the payment of the satisfaction from the Slovak Republic or some other subject of law.

2.3. The ways of the protection against violation of fundamental rights or freedoms

If the constitutional court gives a verdict that a fundamental right or freedom has been violated it can under the petitioner's motion (§ 20 (3) of the Constitutional Court Act):

a) order that the subject which violated a fundamental right or freedom with its passivity should proceed in the case under special regulations i.e. under procedural codes especially the Code of Civil Procedure and Code of Criminal Procedure. The proceedings under special regulations should be arranged in a way that the concerned authority shall not continue to breach the fundamental rights or freedoms. The Constitutional Court of the Slovak Republic has used the verdict on general court's obligation to proceed without unreasonable delays (after finding violation of the fundamental right to proceedings without unreasonable delays under Art. 48 (2) of the Constitution).
b) The Constitutional Court may return the case for further proceedings while a required precondition to this is the quash of the challenged decision or measure. The Constitutional Court quashes a decision (measure) if a precondition exists that the public authority being bound by the Constitutional Court's legal opinion can during the further proceedings repair the violation of a fundamental right or it can remove its consequences. An example of such a verdict could be the quash of the court's ruling on ceasing the proceedings through which the breach of the fundamental right to judicial or other protection has occurred under Art. 46 sect. 1 of the Constitution. The binding force of the Constitutional Court's legal opinion (§ 56 (6) of the Constitutional Court Act) acts in the same extent as it is in case of lower courts on the basis of legal remedies under procedural rules, generally appeals, highest appeal, complaints on breaching the law and some others.
c) prohibit continued violation of this right or freedom. This verdict is a complementary to the one to hold further proceedings without violation of fundamental right or freedom. The aim of this verdict lays in the fact that the prohibition as a single measure suffices to stop the concerned public authority (law breaker, breaching a right or freedom) in its proceedings which is held in an unconstitutional way, and finally
d) order that the authority violating rights or freedoms should reinstate the conditions obtaining before the violation took place. In order to reinstate the previous conditions the law breaker, breaching a fundamental right or freedom, shall apply the regulations regulating the proceedings before it which expressly adapt or enable the return to the conditions obtaining before the violation took place. These regulations are mainly decisions or measures. The specific applied method depends on the law breaker who shall use up all the available and possible means for the renewal of the correct constitutional state before the unlawful proceedings took place.

2.4. Guaranteeing means in proceedings on complaints

Since January 1, 2002 the Constitutional Court of the Slovak Republic can apply procedural guarantee for achievement and guarantee the goal of the proceedings on complaints (the submitting of the complaint itself does not have suspending effects). This act has two basic forms:

a) temporary measure
b) suspending the enforceability especially of a decision or measure.

The content of the temporary injunction abide by the requirement on temporary adaptation of the complainant-lawbreaker relation in term of the appropriate rights and freedoms. The aim of this measure lays in creation of a state enabling the constitutional court to discuss and decide the case without thwarting the final decision (to grant the complaint) through the failure in temporary adaptation of the relations of allegedly violated rights and freedoms. The temporary injunction shall not have effects usually having the verdict on the merits of the case especially when it is the possibility under § 56 (3) of the Constitutional Act. By means of temporary measure it is possible to cancel the effects of the challenged decision especially when the case can be settled by the suspension of enforceability. It means that such decisions temporarily do not derive any rights or duties.

A temporary injunction does not prejudge and cannot influence the proceedings result of the complaint. The acceptance of the complaint does not mean the automatic success of the complainant in proceedings on merits. The validity of the temporary injunction expires at latest by entering into force of the decision on merits of the case unless the Constitutional Court of the Slovak Republic decides on its later quashing. The temporary injunction may be quashed without any motion, should the reasons for which it was imposed, lapsed.
Under the petitioner's motion the Constitutional Court may suspend the enforceability of the challenged lawful decision, measure or other encroachment. Suspending the enforceability shall be taken into consideration in case of such acts, challenged in a complaint, content of which is an enforceable duty or right of another subject to proceed in a certain way. This should be defined in the verdict of the concerned act, which are in most of the cases certain decisions.

The suspension of the enforceability shall not contradict to an important public interest. By their interpretation the same rules apply as to other proceedings before the Constitutional Court, especially in proceedings on conformity of legal regulations. The immediate execution of the challenged regulation, measure or other encroachment must result for the complainant bigger damage then which might arise through suspension of the enforceability (under the law an error does not change the aim of this legal precondition). The suspension of the enforceability means that the Court shall impose to such a body that in the complainant's opinion has violated his/her fundamental rights or freedoms temporarily to desist from execution of the lawful decision, measure, or other encroachment and the Constitutional Court shall impose on third parties temporarily to desist from their power, recognized by means of lawful decision, measure, or other encroachment.
We cannot exclude however some other wording of the verdict too, especially when the execution of the challenged act would be a subject to enforcement before another authority and not before that one which allegedly breached the concerned right or freedom.

II. The abstract constitutional review with special aspect to proceedings on conformity of legal regulations
The amendment of the Constitution, Constitutional Statute 90/2001; Collection of Laws, has brought several specifications to the Court's abstract decision-making process, and thus for the activity which is not closely related to particular legal cause. The purpose is to eliminate certain limitations in the power of the Court during the decision-making on legal regulations conformity (Article 125 of the Constitution). Generally, the subject of proceeding on legal regulations conformity shall be the conformity of legal regulation with lower legal force with that of higher virtue. Pursuant to the both amendments, the Constitution and the Law by the National Council of the Slovak Republic, No. 38/1993 Coll., On Organization of the Constitutional Court of the Slovak Republic, on the Proceedings before it and on the Status of its Judges (hereinafter as „Constitutional Court Act") the term legal regulation shall also cover sources such as international law and international treaties.

Moreover it specified the proceedings subject on legal regulations conformity and so the Court shall decide on the conformity of:
a) laws with the Constitution, constitutional statute and international treaties those approved by the National Council, ratified and promulgated by the manner as stipulated by the law
b) decrees of the government, public statutes of ministries and other central governmental authorities with the Constitution, constitutional statute and international treaties those affirmed (approved) by the National Council those ratified and promulgated by the manner as stipulated by the law and conformity with the laws,
c) generally binding rulings as set forth by Article 68 (so-called self-government ordinances of self-government authorities) with the Constitution, constitutional statute and international treaties those affirmed (approved) by the National Council those ratified and promulgated by the manner as stipulated by the law and conformity with the laws, unless does not fall under the jurisdiction of another court.
d) public statutes of local state administration authorities and generally binding rulings of self-government authorities pursuant to Article 71 (2) (issued by self-government authorities at process of exercising state administration powers) with the Constitution, constitutional statute and international treaties, adopted by the National Council and ratified, promulgated by the manner as stipulated by the law and conformity with the laws, decrees of the government, public statutes of ministries and other central governmental authorities, unless they do not fall under the jurisdiction of another court.

The original wording, Article 125 c) and d) of the Constitution has neglected an instrument of reviewing the municipality's generally binding rulings conformity with constitutional statutes, however, in the hierarchical system of the legal regulations, they occupy the same position as the Constitution does.

The legal force of the municipality's and higher administrative unit's generally binding rulings related to territorial self-government subject, on the area of so-called delegated government administration (Article 71, (2), may be inferred from the current Constitution (Article 68).

There was also eliminated the obscurity concerning the power of the Court in decision-making on conformity of Constitution with international treaties. Furthermore the revised wording Article 125 (1) of the Constitution, pursuant to the Article 7 (4), has incorporated international treaties into the law system of the Slovak Republic.

On the other hand, the legislator has reduced the workload of the Court by giving an opportunity to the Court, through regular law, to delegate powers in adjudication on conformity of local government authority's generally binding rulings and self-government's generally binding ordinances with legal regulations having higher virtue to other courts; i.e. the delegation of powers to general court within exercising its powers that would fall under the administrative justice jurisdiction. However only further application of the aforesaid provision in everyday legal practice may prove whether it is reasonable the matters on conformity with legal regulations to be decided by general courts.

Pursuant to the Article 130 (1) of the Constitution:
„The Constitutional Court shall commence proceedings if the motion is submitted by:
a) at least one-fifth of all Members of Parliament,
b) the President of the Slovak Republic,
c) the Government of the Slovak Republic,
d) a court,
e) the Attorney General,
f) everyone whose right is to be adjudicated in cases provided in Arts 127 and 127a,

Act on the Constitutional Court, Section 37 (1), specifies who shall be authorized to initiate proceedings on the conformity of legal regulations: the cited provision includes only subjects defined in Art 130 (1 a) - e) of the Constitution. This definition has remained unchanged also after the recent amendment of Act on the Constitutional Court (Act No. 124/2002 Coll.).

Referring to the said provision, the Court since the very beginning of its performance, has denied motions filed by individuals related to the conformity/unconformity of legal regulations. Reasoning related to the proceedings on the conformity of legal regulations is quite simple: the law here does not concede to any individual the active procedural legitimacy.1 As for the proceedings on constitutional complaint or on the motion respectively, the Court has stated that in proceedings which fall under other court jurisdiction, the Constitutional Court would not be authorized to review the conformity of legal regulations.

The Constitutional Court has not modified its approach to the motions submitted by individuals not even following the last amendment of the Constitution. For instance, by its Ruling of 6 February, 20022, the Court has rejected the constitutional complaint filed by a natural person claiming unconformity of the local government authority's generally binding ordinance with the Constitution and laws. The Court in the reasoning, referring to its stabilized case-law, among others, has also noticed: „Notwithstanding that the Court, during the preliminary hearing of the claimant's complaint, took into consideration that the revised constitutional regulation of the Court's activity (constitutional statute No. 90/2001 Coll., as amended by the Constitution No. 460/1992 Coll., as amended) has generally extended and specified particular proceedings before the Court and in relation to the Art 127 of the Constitution, the proceedings on complaints constitute an effective legal instrument to protect the natural person's and legal entity's human rights and fundamental freedoms. On the other hand, the said amendment shall not apply to the rule under which and within the particular proceedings no other proceedings shall be held before the Court, provided such pending proceedings once commenced as separate trial before the Court."3

In the juristic theory, on the above issue, there is no common (unified) opinion. We encounter with such opinions that respond to the reasons of the Court4, but there are also such opinions which are based on foreign legal regulations, encourage the right of an individual to challenge a legal regulation within the proceedings on the conformity of legal regulations or on the constitutional complaint respectively.5

Moreover the amendment of the Constitution expressly specified that any final decision given by the Court and within the abstract constitutional review or legitimacy control or other legal regulations review shall be generally binding6. This new feature of the Court's decisions binding force has definitely included them among regular sources of law. The Constitutional Court consolidated the proper construction of the legal concept "final decision" in Article 133 of the Constitution. Although in the literature, with respect to the regulation of the court's decision legal force constitutionality, we may find such a regulation as extremely casuistic7, however the grounding of the Court's finding legal force still remains an open issue. Regarding the legal force of a law, this may be compared only with the Court's finding derogatory effect upon which expired the effect of the legal regulation, in whole or in part or its particular provision.

For such a source of law is typical that it results from the standard making activity of such a body which is not conferred with the „traditional" legislative power (law making initiative) and due to this it has no authority to make any changes in such sources of law. It is correct that from formal and procedural point of view, Art 125 (6) of the Constitution consolidates the manner how the Court promulgates the non-conformity related decisions, however it would be reasonable if their legal force would be also subject to regulation. The purpose of forming hierarchy in legal regulations is to ensure an internal consistency in legal system. And if such a rule is being applied under which one legal regulation may be superseded by another one having identical or higher legal force, then no doubts on particular findings legal force should occur. The rule occupying higher position in the legal system hierarchy, i.e. having higher legal force, shall be always a result of standard making function of a body taking higher rank within the state power structure than the authority enacting norm with lower legal force or the power of which to enact norms having higher legal force shall be one of the instrument for ensuring a balance among the particular powers.8 The Constitutional Court is the body the decision making authority of which on the matters of conformity with the legal regulations shall be an instrument to guarantee a balance towards to legislative power and so it may be presumed that decisions in the subject of conformity with the legal regulations shall enjoy the law's legal force. In Federal Republic of Germany, the potential problems related the Federal Constitutional Court's decisions legal force were anticipated and the provision 31 of Court Rules set forth that all the Federal Constitutional Court's decisions shall be binding to each federal and land constitutional bodies as well as to any general courts or authorities. Moreover the Section 2 of the said Rules further specifies that the selected and particularly listed decisions shall have the legal force of law.

The constitutional amendment conferred the Court with an optional competence, to suspend any challenged legal regulations effect or its part or some of their provisions, after the motion for commencement of proceedings on conformity with the legal regulations has been accepted, unless fundamental rights and freedoms are threatened due to their applications or if there is a risk of severe economic damage or other serious irrecoverable consequence (Art 125, 2 of the Constitution).

Since 1993 has been proved the need for such a regulation as pursuant to Art 125, the decisions on nonconformity with the legal regulations shall take effect by day promulgation in the Collection of Laws and their effect shall be ex nunc. Finding a proper solution for legal consequences of those invalid legal regulations shall be a substantial and difficult issue even in other countries9 and similar legal regulation may be found in abroad as well. This is way it is possible at least partially to prevent from an occurrence of further and unwanted consequences, related to the nonconformity of legal regulations. Decisions taken in the subject of privatization process related legal regulation which appeared in practice and that may be found in the Court's current case-law, can give convincing examples on severe economic damage caused due to the application of unconstitutional legal regulation.10

The two Court rulings11which decided on legal regulation suspension only have justified the viability of that provision consolidating the Court's said power. In both cases, the Court, upon the petitioners´ appeal, suspended the effect of legal regulations and giving grounds that further application of those may threat fundamental rights and freedoms. Although on the provision consolidating the Court's capacity to suspend effect of the legal regulation, no conclusions may be drawn so far, however the second case, when the effect of the legal regulations was suspended, the proceedings on the challenged legal regulations conformity was abated, since the Parliament, following the above ruling had been issued, passed a law that responded to the claimant's petition. The said ruling grounds indicate that legal regulations provisions (in the said case the Ordinance, Ministry of Finance and Order Ministry of Finance were concerned) were subjects to review pursuant to Art 125 1 a) and b) of the Constitution and regarding the proceedings on conformity with the Constitution, have been revised and so their validity has expired giving grounds the proceedings to be stopped.

Should the Court take the advantage of that power and if under the said conditions shall decide on suspension of the challenged legal regulations, its part or some their provisions, his decision shall be promulgated by a manner as set for the promulgation of laws. This means that it shall be published in the Collection of Laws, Slovak Republic. The decision on suspension of the effect of the legal regulation shall have analogical effects as the decision on legal regulation nonconformity, however the suspension of those challenged legal regulations shall have only provisional nature and the legal regulations shall remain valid and they shall be considered as the Slovak legal system source. So the decision on suspension of the challenged legal regulations effect, its parts, or some of their provisions shall expire at latest by date when the Court's decision on the merits is promulgated unless the Court earlier has quashed the decision on suspension of the challenged legal regulations effect since the reasons due to which they were made, have passed away.

To examine whether in the given case any reasons occurred for the suspension of the legal regulation effect or to be quashed a decision upon which the effect was suspended, shall be subject to the Court's further consideration. This is provided to the Court as it is considered to be an independent and responsible judicial body intended to protect the constitutionality which also enjoys the trust of the general public due to his impartiality in decision making process12. When applying such a power, the Court shall have to take into account also those negative impacts that may accrue from the potential suspension of the challenged legal regulations effect, their part or some of their provisions.

Another area where the Court's activity was affected by the amendment of the Constitution was the construction of the Constitution and constitutional statutes. The Court, pursuant to Art.128 of the Constitution, provides a construction of the Constitution and constitutional statutes, only if the matter is disputed. The said amendment has removed several limitations regarding the construction of the Constitution and constitutional statutes, as the former regulation was raising some doubts whether the Court was in authorized to provide construction of the Constitution as well. The Court coped with this situation by issuing a decision I. ÚS 39/93, where regarding the issue of relation between the Constitution and constitutional statutes in the law system, stated that "from the point of law shall have the relevance only to be distinguished between the law passed by qualified majority of MP votes and between the laws that shall require simple plurality to be passed. Hence the provision of Art.128 (1) of the Constitution authorizes the Court to provide a construction of any law, passed, amended or modified upon the qualified majority of MP."

In the course of application of Art.128 of the Constitution, at the proceedings on construction of the Constitution, has been established such a practice upon which providing of a construction should be related to particular dispute between the public authorities. Moreover the Court is required to be vested with a real power to get into the mutual conflict when providing construction of a constitutional norm. The Court has affirmed this conception in several of its legal opinions such as follows: „The purpose of proceedings on the constitutional statutes construction, under Art. 128 (1) of the Constitution shall be providing definite construction of the particular law's disputable provision on such a way that it would eliminate in the future any dispute that raised grounds for the commencement of proceedings in the current case by the Court. However one of the conditions for proceedings on providing construction of the Constitution before the Court shall be an occurrence of particular dispute between the Slovak public authorities and in a particular time, the Court's ruling on the construction of the Constitution's disputable provision shall receive „erga omnes" effects having durable validity (until further amendment or quash of that Constitution given provision, which was subject to construction by the Court)."13

So far, the essential procedural requirement for commencement of proceedings before the Court was to be proved the disputability of the constitutional statute construction. So it was not only based on the petitioner's allegation but also upon the fact that the particular constitutional article upon which the constitutional statute confer right and liabilities to the state authority, is wrongly construed. The Court at any proceedings concerning construction of the constitutional statutes, firstly and foremost already during the preliminary hearing has justifiably required to be proved a relevant dispute on providing construction of the constitutional statutes and only further proceedings related motions and to the extent of the proved dispute were received.

The Constitutional Court of the Slovak Republic has created a constant case-law from which several reasons of rejecting a motion follow e.g. if the motion is filed by a person who is evidently not entitled to file a motion, or for not fulfilling the requirements provided by law or for evidently ill founded motion.
It depends on consideration of the Constitutional Court of the Slovak Republic which rulings on interpretation have general character and will be published in the Collection of Laws. Exactly this is the formulation that evoked doubts on the issue that the constitutional court's interpretation for whom and in what amount has a binding force. The Constitutional Court of the Slovak Republic being aware of the not very good solution of this problem in the Constitution of the Slovak Republic and in the Constitutional Court Act has published all the interpretations of the Constitution and constitutional statutes in the Collection of Laws. This fact has been respected during the constitutional amendments and it follows from it that the given interpretation has a generally binding force and the constitutional court decisions on interpretation of the Constitution or constitutional statutes shall be promulgated in the Collection of Laws.
Other procedural issues came up in connection with decision-making during proceedings on interpretation of constitutional statutes14, as they have not been regulated in the previous legal regulations. This fact has been reflected in mutually contradictory constitutional court decisions when in decision II. ÚS 69/99 it has been stated: Under the Constitution of the Slovak Republic and under any other legal act, interpretation of the Constitution of the Slovak Republic given by the Constitutional Court of the Slovak Republic pursuant to Article 128 (1) of the Constitution of the Slovak Republic may not have a retroactive effect and be applied to the period which preceded the publication of the interpretation of the Constitution or even its announcement by the Constitutional Court of the Slovak Republic." An opposite opinion has been presented in other decision: "An opinion on effectiveness of the interpretation ruling given by the Constitutional Court only after its publishing in the collection of laws is unacceptable. It contradicts definitely to provision of § 33 section 4 of the Statute 38/1993 Coll. which does not obligatorily provide for publication of the decisions on interpretation in Collection of Laws and to § 1 of Law 1/1993 Coll. which lists in details what shall be published in the Collection of Laws…."15 The conclusion that a decision on interpretation shall have effect only for the future has been proved by amended provision of § 128 of the Constitution which says that the interpretation is generally binding since its day of promulgation. This solved the dispute on the time of arising of legal effects in connection with the interpretation of the Constitution and constitutional statutes.
It is a positive feature too that the motion requiring interpretation will be decided by the plenary session and not by the senate as it happened before. The interpretation given by the Constitutional Court of the Slovak Republic is a legal interpretation having general binding force and it results that the constitutional court acts here as a law creating subject. It was an unsatisfactory situation before when the law had been made by the senate i.e. in fact three judges of the constitutional court acted in this capacity. Besides this fact another non-desired situation has been eliminated when the senate gave the interpretation and it could result that different senates within their decisions arrived to different legal opinions expressed in proceedings on interpretation of constitutional statutes.
The next new type of proceedings is the one on the motion for a decision on the conformity of a negotiated international treaty with the Constitution or with a constitutional law under Art. 125a of the Constitution of the Slovak Republic where a preventive review on constitutionality of international treaties is given. The aim of these proceedings is to avoid a situation that a valid international treaty which is binding for the Slovak Republic would be in unconformity with the Constitution of SR or with a constitutional statute. If the constitutional court has decided that the negotiated international treaty is not in conformity with the Constitution or with constitutional laws, it cannot be ratified. Under Article 125a sect. (1) of the Constitution of SR this competence of the Constitutional Court of the Slovak Republic does not include all the negotiated international treaties but only those ones which require the consent of the National Council of the Slovak Republic. They are listed in Article 7 section 4 and Art. 86 point d) of the Constitution: The validity of international treaties on human rights and fundamental freedoms, international political treaties, international treaties of a military character, international treaties from which a membership of the Slovak Republic in international organizations arises, international economic treaties of a general character, international treaties for whose exercise a law is necessary and international treaties which directly confer rights or impose duties on natural persons or legal persons, require the approval of the National Council of the Slovak Republic before ratification.

The Constitutional Court of the Slovak Republic does not have any experience with this type of proceedings, however the need of its regulation follows from Article 27 of the Vienna Convention on contractual law according to which a party cannot refer to provisions of its domestic law as a ground for failing to fulfill the treaty.

Subjects to proceedings before the Constitutional Court could be international treaties that the Slovak Republic through its President or an entitled authority has assented but they are subject to further internal debates and adoption. Only after this proceedings, resulting the ratification-document, or document on adoption, approval or acceptance can an international treaty enter into international validity.

Entitled persons to file a motion to commence proceedings under Art. 125a of the Constitution are in accordance with Art. 102 point b) the President of the Slovak Republic and under Art. 119 h) the Government of the Slovak Republic. These subjects have stipulated their rights in our Constitution but this is not an obligation to file a motion to the Constitutional Court of the Slovak Republic. The Constitution sets a possibility for the discretion of both the President and the Government of the Slovak Republic whether respecting the circumstances of the preparatory proceedings of the specific international treaty they will use their constitutional right and decide to file a motion to the Constitutional Court or they will decide alone on the fact if the content of the negotiated international treaty is in conformity with the constitution and constitutional statutes. In case the President and the Government shall not apply the option of the preventive constitutional review of the negotiated international treaty and the valid treaty, binding for the Slovak Republic, would be contradictory to the Constitution or some constitutional statute there would occur an undesirable situation while respecting the Constitution or constitutional statutes an international treaty would be violated.

While the President of the Slovak Republic or the Government of the Slovak Republic, prior to submitting it for the debate at National Council of the Slovak Republic, may submit to the Constitutional Court of the Slovak Republic a motion for a decision on the conformity of a negotiated international treaty so from the aspect of time the concerned international treaty shall be submitted to the Parliament concurrently with the Constitutional Court decision on its conformity or non conformity with the Constitution or some constitutional statutes. 16
Requirements of the motion to commence proceedings under Art. 125a of the Constitution are put down in § 41c of the Law on the Constitutional Court and in accordance with this it should contain besides the general requirements the following:

a) designation of the negotiated international treaty
b) documents, serving as a basis for negotiating the international treaty
c) reasons leading the petitioner to his/her doubts on the conformity of the negotiated international treaty with the Constitution or with constitutional laws.

The law stipulates that the concerned international treaty shall be attached to the motion too. The specific features of the proceedings under Art. 125a of the Constitution put on the petitioner some special requirements. The Constitutional Court prior to its decision on the conformity of the international treaty provision with the Constitution or constitutional statute shall this provision interpret while it shall follow the interpretation rules of the international contractual law.
If the constitutional court has decided that the negotiated international treaty or some of its parts are not in conformity with the Constitution or with constitutional laws so the court decision is binding for the President or the Government of the Slovak Republic and such a treaty cannot be ratified. Its ratification is available just after the National Council of the Slovak Republic has changed the contradictory provisions of the Constitution or constitutional statutes. Considering that the Constitutional Court decisions are binding only for the President or the Government of the Slovak Republic, as it has been said they shall not be published in the Collection of Laws of the Slovak Republic, however they shall be delivered to the petitioner and to the National Council of the Slovak Republic.
Another new constitutional provision is that of Art. 125b which also enables the constitutional court to give a preventive review in the field of reviewing the subject of the referendum prior to its announcement by the President of the Slovak Republic. Article 125b of the Constitution relates to presidential competences under Art. 95 sect. (2) of the Constitution. The aim of this new Constitutional Court competency is to evaluate the conformity of the referendum question with the provisions of Art. 93 sect. (2), (3) and Art. 99 of the Constitution.
Under Art. 93 (2) a referendum may also be used to decide on other crucial issues of the public interest. It is an optional referendum and its subject has been specified very broadly and in general level. In case of review of the conformity of the referendum subject under Art. 93 sect. (2) of the Constitution the Constitutional Court´s primary task shall be to interpret the concept of „public interest". The aim of a referendum is to enable the citizens to decide on the referendum-subject issues. Considering the fact that it is difficult to predict what kind of future problems will be raised in the society to which the citizens´ direct participation will be desired, the legislator did not specify the referendum subjects in details. However the subject has been formulated through an indefinite concept, and so a discretionary power has been provided to the referendum-initiator. While specifying the mentioned concept „public interest" we could take, for example, the definition from the Black´s Law Dictionary which gives the following: It is "the interest in matters concerning the administration of the municipality, state or federation which is common for all the citizens."17
Although the referendum subject is regulated in our Constitution only on general level the legislator nevertheless specified in details the negative referendum subjects i.e.: No issues of fundamental rights, freedoms, taxes, duties or state budget may be decided by a referendum. Notwithstanding that the subject is defined in details the Constitutional Court could face a difficult task while interpreting the concept of "fundamental rights and freedoms".
Respecting the original provision of Art. 99 sect (2) of the Constitution all referendum subjects should be deemed unconstitutional if the referendum on the same issue is repeated earlier than three years after the previous referendum had been held. According to the Constitution a referendum on the same issue may be repeated not earlier than three years after the previous referendum had been held. If a referendum is to be held under the citizens´ petition or the National Council of the Slovak Republic ruling (Art. 93 (1)) it is the Constitutional Court of the Slovak Republic that shall decide (if requested so by the President of the Slovak Republic) whether a referendum, held three years before, decided the same issue like the planned next referendum.
The subject of the obligatory and ratifying referendum under Art. 93 (1) of the Constitution i.e.: „A constitutional law on joining a union with other states or the secession from it, shall be confirmed by a referendum" - respecting its nature cannot be adjudicated within proceedings under Art. 125b of the Constitution.
The only entitled subject for motion on commencing proceedings under Art. 125b submitted to the Constitutional Court can be the President of the Slovak Republic prior to declaring a referendum, if he/she has doubts on whether the subject of referendum is in conformity with the Constitution or a constitutional law. It is necessary to emphasize that the President has the right but not the obligation to file such a petition to the Constitutional Court requesting to review the referendum subject. The President, however, him/herself can also review this issue as it has been before. Besides he/she can evaluate further connected issues, e.g. the validity and number of signatures on the petition.

As for the referendum prerequisites, the provision of § 41f of the Law on the Constitutional Court stipulates that the motion besides the general requirement, shown in § 20 (1) shall contain:

a ) the subject of the referendum
b) legal basis for announcing the referendum
c) reasons, leading the petitioner to his/her doubts on the conformity of the referendum subject with the Constitution or with constitutional laws.

This type of proceedings is not an ordinary type of legal proceedings while there is no contradiction between the petitioner and the other party. It is more an issue on giving a binding professional standpoint on the constitutionality of the referendum subject which shall have the form of a finding. The petitioners committee shall be the second party to the proceedings if the referendum is announced under the petition of not less than 350 000 citizens, or if it is initiated by the National Council of the Slovak Republic.
Article 125b sect. (3) of the Constitution stipulates the issue of the constitutional court-decisions binding force as follows: "if the Constitutional Court holds in its decision that the subject of referendum to be declared upon a petition of citizens or a resolution of the National Council of the Slovak Republic according to Art. 95 (1) of the Constitution is not in conformity with the Constitution or constitutional law, the referendum cannot be declared." A negative decision is an invincible obstacle for announcement of the referendum. In other case after confirming decision of the Constitutional Court on the referendum subject with the Constitution or constitutional law the President shall announce the referendum unless he/she has other reasons not to do so, for example finding a failure in the required number of petitioners, asking for referendum, or some other required constitutional or legal conditions.

The Constitutional Court shall decide on a proposal pursuant to paragraph 2 within 60 days from the date of its delivery. In fact there are no legal means enabling the Constitutional Court to apply its competency under Art. 125b in the legally stated term. The review of the referendum subject could prolong the term for its announcement by the President of the Slovak Republic from 30 up to 90 days from accepting the citizens´ petition or the ruling of the National Council of the Slovak Republic.
This type of proceedings we expect to be very rare and the Constitutional Court of the Slovak Republic has not had any experience in it so far.

Used sources:

1. Bröstl, A., Klucka, J., Mazák, J.: Constitutional Court of the Slovak Republic (Organization, process, doctrine). Košice 2001, published within Phare project (Russian, German, English version)
2. Relevant decisions of the Constitutional Court of the Slovak Republic 1993-2000, published on http://www.concourt.sk/;
Annually published Collection of Findings and Rulings of the Constitutional Court of the Slovak Republic

1. Decision PL. ÚS 4/93 Collection of Findings and Rulings of the Constitutional Court of the Slovak Republic 1993-1994. Košice 1995, p. 33
2. II. ÚS 5/02. Ruling of the Constitutional Court of the Slovak Republic of February 6, 2002
3. Ibid
4. Bröstl, A., Klucka, J., Mazák, J.: Constitutional Court of the Slovak Republic (Organization, process, doctrine). Košice 2001, s. 87-88
5. Repík, B.: Ludské práva v súdnom konaní. Bratislava 1999, s. 124,
Kvasnicková, J.: Možnost jednotlivca napadnút na ústavnom súde právny predpis. Justicná revue No. 6-7/2002, p. 679-694
6. Article 125 (6) Constitution of the Slovak Republic
7. Kuhn, Z.: Pusobení rozhodnutí ústavního soudu ve vztahu k soudum
obecným. Právny obzor No. 6/2001, p. 468
8. Prusák, J.: Teória práva. Bratislava, I. vyd. 1995, s. 245
9. Blahož, J.: Soudní kontrola ústavnosti. Praha 2001, s. 28
10. E. g. PL. ÚS 1/02. Ruling of the Constitutional Court of the Slovak Republic of 10 January, 2002; PL. ÚS 4/02. Ruling of the Constitutional Court of the Slovak Republic of 24 January, 2002
11. Drgonec, J.: Ústava Slovenskej republiky - komentár. Šamorín 2001, s. 211
12. ÚS 61/96. Zbierka nálezov a uznesení Ústavného súdu SR 1996. Košice 1997, s. 242
13. Bröstl, A., Klucka, J., Mazák, J.: cited above, p. 99; Drgonec, J.: cited above footnote No 12, p. 244-246
14. ÚS 48/1999. Ruling of the Constitutional Court of the Slovak Republic of 20 December, 1999. Zbierka nálezov a uznesení Ústavného súdu Slovenskej republiky 1999, p. 448-449
15. Klucka, J.: Material not published
16. Black´s Law Dictionary II vol., 6th edition, 1993, p. 1144
17. Bárány, E., Dobrík, L.: Material not published

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