Speech by the Judge Jānis Neimanis at International Conference “Human Rights and National Security: Ensuring the Balance of Human Rights and the Interests of the State. The Role of the Body of Constitutional Jurisdiction”
Dr.iur. Janis Neimanis
Judge of the Constitutional court of Republic of Latvia
Kiev 27 June 2019
The Role of Ordinary and Administrative Courts: Improving the Protection of Citizens’ Fundamental Rights
Ladies and gentlemen!
Comprehensive protection of persons’ rights and effectiveness of legal remedies are decisive for national security. If protection of rights has not been ensured to persons or if it is ineffective a person cannot feel safe either about his life and property or his other interests. This directly affects also the national security and stability of the state.
In the circle of the continental European law, an application or a claim to a court of general jurisdiction or an administrative court should be regarded as the central legal remedy for protecting infringed fundamental rights. The constitutional complaint, in turn, should be regarded only as a subsidiary or subordinated legal remedy for the protection of infringed fundamental rights. Therefore the role of a judge of a court of general jurisdiction or of an administrative court and the range of procedural measures available to the judge become particularly important in conducting legal proceedings effectively and in making of a fair judgement.
In accordance with the constitution of any democratic state, the judicial power should be separated from the legislative and the executive power; a judge should be independent and subject only to legal rules and the law. Being subject to legal rules and the law means being subject to legal norms. However, a judge cannot be subject to legal norms that are not in force. Legal norms, which are contrary to legal norms of higher legal norms, are void from the very beginning. In adjudicating the case and applying law, a judge may not apply a law, which is not in force, and grant to it legal consequences/ effect, therefore it is his duty to verify, every time, compliance of the applicable legal norms with the legal norm of higher legal force, including the constitution.
In verifying compliance of the applicable legal norms with a legal norm of higher legal force, including the constitution, every judge has the obligation to specify and define the content of legal norms, features of legal elements and legal consequences. A judge may need to work not only with the government’s regulations but also laws and even the constitution. This means that the judge may have the obligation to interpret and define also the content of constitutional norms.
In establishing the content of the applicable legal norms, a judge may not refuse to apply the constitution directly. The constitutional norms, although characterised by a higher level of abstraction, still are a part of applicable law. Moreover, the constitutional norms may cause direct legal consequences in an individual case, not only in the case of a person’s dispute with the State but also in a civil law dispute. If in an appropriate situation, where a judge should apply the norms of the constitution but he refuses to do so, he refuses to apply law or acts obstructively and violates the principle of a state governed by the rule of law.
In the course of applying legal norms, a judge may find that the applicable legal norms are incompatible with a legal norm of higher legal force or violate fundamental rights. Therefore the mechanisms of a judge’s actions in a situation like this become of principal importance. In the majority of European states, a judge has been granted the right to suspend legal proceedings before a judgement is passed and submit an application to the constitutional court for the constitutional court to verify the judge’s opinion regarding the incompatibility of legal norms.
“Centralisation” of the verification of the compatibility of legal norms at the constitutional court prevents the possibility that various courts could assess differently the compatibility or incompatibility of the same legal norm with legal norms of higher legal force.[1] The constitutional court can provide clarity and legal certainty on a matter of dispute regarding the compliance of a legal norm with a legal norm of higher legal force. The institution of a court’s application reinforces the competence of the constitutional court to be the only one that recognises laws as being void. However, this does not deprive courts of the right and the obligation to apply independently law and, in particular, the constitution, and to interpret these. Every court has the obligation to interpret the applicable law in accordance with the legal system (legal norms of higher legal force and the constitution). Courts do not have the right, by referring to the institution of a court’s application, to refuse using this methodology of interpreting legal norms
The purpose of a court’s application is to ensure to a court the possibility to refuse, in a certain procedure, from being subject to law, which the court considers being incompatible with legal norms of higher legal force, retaining subordination to the legal system.
In Ukraine, pursuant to Article 10 of the Civil Procedure Code, Article 6 of the Code of Administrative Proceedings, Article 11 of the Commercial Procedural Code, if a court finds that a law or another legal act contradicts the Constitution of Ukraine the court does not apply this law or another legal act and applies directly the norms of the Ukrainian Constitution. In such a case, after adoption of the decision, the court turns to the Supreme Court so that the Supreme Court would decide on submitting an application to the Constitutional Court of Ukraine regarding the constitutionality of a law or another legal act. Pursuant to Article 36 of the law “On Judicial Power and the Status of Judge”, the Supreme Court submits an application to the Constitutional Court of Ukraine regarding compliance of a law or another legal act with the Constitution, as well as regarding the official interpretation of the Constitution of Ukraine. In accordance with Article 46 of the law, this application is approved by the plenary meeting of the Supreme Court.
Thus, Ukraine has centralised a judge’s right to submit an application to the constitutional court by granting this right only to the Supreme Court, its plenary meeting.
On the one hand, a judge of the court of general jurisdiction or an administrative court is deciding independently on the collision of legal norms and applies the norms of the constitution directly.
On the other hand, a centralised model like this presents a number of shortcomings:
1) the Supreme Court, the plenary meeting is burdened with issues that could be decided on independently by a court (a judge) of lower instance; even more disputable is referring the matter to the plenary meeting of the Supreme Court in a case, where a panel of the Supreme Court, in examining a case, has expressed an opinion regarding incompatibility of a legal norm;
2) to decide whether an application should be submitted regarding the constitutionality of a legal norm, a judge must delve into the facts of the case and applicable legal norms; to decide on a judge’s application, the Supreme Court, in fact, must adjudicate the case anew.
3) differences of the Supreme Court’s and a judge’s opinion regarding the constitutionality of a norm, if the Supreme Court refuses to submit an application to the Constitutional Court, will not solve the problem, since the Constitutional Court has not had the final word.
4) the request to the Supreme Court to submit an application to the Constitutional Court is submitted after the judge already has made the final judgement in the case: this gives twofold signals to the parties of the case; i.e., indicates that there still is disputable unresolved legal problem in the case, which could change the outcome in the case.
5) the established procedure, due to psychological reasons, most probably would make a judge refrain from approaching the Supreme Court because he would be afraid of the Supreme Court’s judges’ opinion about the particular problem, would be afraid to become ridiculous. For example, in Latvia, the judges of the Supreme Court have submitted the largest number of applications to the Constitutional Court.
I believe that a judge’s independence in adjudicating a case should be facilitated by granting to every judge the right to submit an application to the Constitutional Court and verify his opinion regarding the compliance of a legal norm with legal norms of higher legal force. This would bring also very interesting legal issues to the Constitutional Court but the protection of persons’ individual rights would be significantly reinforced beginning already with the legal proceedings in the first instance court.
[1] Endziņš A. Par tiesas pieteikumu Satversmes tiesā. Latvijas Vēstnesis Jurista vārds, 2002. 10. septembris, Nr. 18