Armenia:

Systems of Constitutional Review in Countries with a Federal State Structure

Constitutional review in the proper sense of the word, taken, however, from the theoretical point of view, can develop only when instead of the principle of the sovereignty of Parliament⁷⁷, there prevails the idea of the supremacy of the Constitution⁷⁸, and when constitutional review is performed by a special body, independent of the legislative and executive power⁷⁹. Such approaches were characteristic of development after World War II. On the other hand, constitutional review also involves the principle of the vertical separation of powers. It emerged in federal states, whereby constitutional review was supposed to exert supervision over the, federal legislature in relation to member states. In Austria and Switzerland, countries with a tradition in the field of constitutional review, the respective body empowered to perform constitutional review was introduced only on the federal level. In Germany constitutional review was introduced on the federal level as well as on the level of provinces. A similar system was introduced in the former Yugoslavia (1963), as well as in Slovenia and other constituent republics of the former Yugoslavia (1963). After the introduction of constitutional review on the federal level, constitutional review has been adopted in Russia since 1990 also by the federal entities of the Russian Federation. The structure of constitutional review on the federal as well as on the level of member states is still preserved in the present Federal Republic of Yugoslavia and in Bosnia and Herzegovina. A certain special position is accorded to Argentina, where the democratic transformation process in a Federal State first developed in its units, marked by the gradually increasing introduction of elements of constitutional review of different intensity by the individual provinces (Tucuman).

Such a structure of constitutional review was not adopted in the former Czechoslovak Republic; there the Constitutional Court was established only on the federal level. In spite of the efforts in Kwazulu-Natal, constitutional review was created only on the level of the South African Federal State.

Some other federations did not adopt the constitutional review on the level of member states, e.g. Brazil, Canada, Comoros, India, Malaysia, Nigeria, Togo, and the USA, where the respective function has been provided by the Supreme Court or by the Constitutional Court.

In Hong Kong, as a special Administrative Territory of China (after 1 July, 1997), a specific system of constitutional review was introduced, where the function of constitutional review is performed predominantly by the Parliament (the National People's Congress) and/or a certain parliamentary body (the Constitutional Committee).

In Switzerland, the Federal Court cannot evaluate federal statutes, generally binding resolutions and ratified international treaties, and in cantons the constitutional review was not introduced. The only federal legislative decisions subject to constitutional review are orders issued by the Federal Executive (Federal Council). The Federal Court exercises its constitutional jurisdiction chiefly with respect to legislative acts and decisions issued by the Cantons. Other disputes brought before the Swiss Federal Court are as follows: conflicts of jurisdiction between Federal and cantonal authorities and disputes concerning voting rights.

On the other hand, some Constitutional Courts are empowered to decide on the conformity of the Constitutions of specific State Regions with the (main) State Constitution (e.g., Georgia, as regards the Abkhasian territory and Uzbekistan, as regards the territory of Karakalpakstan). In addition, the local Karakalpakstan Constitutional Court (the Constitutional Committee of the Karakalpakstan Republic) also exists.

a)Germany

The first integral system of constitutional review on the federal level as well as on the level of member states was introduced in Germany. Beside the Federal Constitutional Court (Bundesverfassungsgericht), the member states (Laender) established their own Constitutional Courts. Their titles are sometimes "the Constitutional Court (Verfassungsgerichtshoo", and sometimes "the State Court (Staatsgerichtshoo". All member states except Schieswig-Holstein adopted the constitutional review. At first the Province of Berlin did not establish such a Court in spite of the respective basic provisions in the Berlin Constitution. In addition, the Federal Constitutional Court developed a certain limited system of legal protection as regards the Berlin Province. However, the Constitutional Court of Berlin was finally established by the Constitutional Court Act of 8 November, 1990. The Schieswig-Holstein Province, on the other hand, under the Federal Constitution transferred the function of constitutional review to the Federal Constitutional Court. In addition, the Constitution of Schleswig-Holstein did not institute a Constitutional Court on the local level⁸⁰. Until 1993, among the five new German member states, only Sachsen, Sachsen-Anhalt and Brandenburg introduced the constitutional review⁸¹. However, the constitutional review was not introduced in all German member states with the same intensity. One of the most famous Courts is the Cdnstitutional Court of Bavaria, situated in Munich, because of its tradition. As a matter of fact, the constitutional review in Bavaria has its roots in the Bavarian Constitutions of 1850 and of 1919.

Provincial Constitutional Courts were established in the following German Provinces:

Baden-Wuerttemberg (based in Stuttgart);
Bavaria (based in Munich);
Berlin (based in Berlin);
Bremen (based in Bremen);
Hamburg (based in Hamburg);
Hessen (based in Wiesbaden);
Niedersachsen (based in Buckeburg);
Nordrhein-Westfalen (based in Muenster);
Rheinland-Pfalz (based in Koblenz);
Saarland (based in Saarbrucken).

The powers of the Constitutional Courts did not follow any common model, so there are some differences between present Constitutional Courts. In addition, between the Federal Constitutional Court and Provincial Constitutional Courts powers are separated with regard to the principles which represent the general grounds for the separation of powers between the Federal State and the member states. Accordingly, the Federal Constitutional Court is empowered to decide in all cases of federal constitutionality (concerning conformity with the Federal Constitution), while the Constitutional Courts of the member states are empowered to decide in cases of Provincial constitutionality (concerning conformity with their Provincial Constitutions). However, both proceedings can be simultaneous and parallel if the same regulation is concerned. In such cases both Courts (the Federal and the Provincial) coordinate their proceedings. As a rule, the freedom to decide on such issues as "foreign" law is limited, provided that the competent Constitutional Court has already decided the case with erga omnes effect. Thus, Provincial Constitutional Courts are bound by the decisions of the Federal Constitutional Court concerning matters of Federal constitutional law, whereas, the Federal Constitutional Court is bound by the decisions of Provincial Constitutional Court cases concerning matters of Provincial constitutional law. The relationship between the Federal Constitutional Court and the Constitutional Courts of member state is expressly determined not only in the German system, but also in some other systems (e.g. the FRY).

b) The Russian Federation

Under the Constitution of the Russian Federation of 12 December 1993, the Constitutional Court of the Russian Federation consists of 19 judges (Article 125). The Court, on the request of the President of the Federation, the State Duma, one-fifth of the members of the Federation Council of Representatives of the State Duma, the Government of the Federation, the Supreme Court of the Federation, the Supreme Arbitration Court of the Federation, or bodies of the legislative and executive branches of members of the Federation, resolves cases concerning compliance with the Constitution of the Federation of:

federal statutes, normative acts of the President of the Federation, the Federation Council, the State Duma and the Government of the Federation;
republican constitutions, charters, as well as statutes and other normative acts of members of the Federation published on issues pertaining to the jurisdiction of bodies of State power of the Federation and the joint jurisdiction of bodies of State power of the Federation and bodies of State power of members of the Federation;
agreements between State bodies of the Federation and bodies of State power of members of the Federation, and agreements between bodies of State power of members of the Federation;
international treaties of the Federation that have not entered into force.

In addition, the Constitutional Court resolves jurisdictional disputes:

between the Federal State bodies;
between State bodies of the Federation and State bodies of the members of the Federation;
between supreme State bodies of members of the Federation.

The Constitutional Court of the Federation, in proceedings following complaints concerning the violation of the constitutional rights and freedoms of citizens and requests from courts, reviews the constitutionality of the statute applied or due to be applied in a concrete case in accordance with proceedings determined by federal statute.

The Federal Constitutional Court, on the request of the President of the Federation, the Federation Council, the State Duma, the Government of the Russian Federation, or legislative bodies of members of the Federation, interprets the federal Constitution.

Acts and their provisions deemed unconstitutional do not have force. International treaties of the Federation may not be enforced and applied if they violate the federal Constitution.

The Federal Constitutional Court on request of the Federation Council rules on compliance with established proceedings when charging the President of the Federation with state treason or other serious crimes.

Judges of the Federal Constitutional Court are appointed by the Federation Council following nomination by the President of the Federation (Article 128).

The powers of the federal Constitutional Court are established by federal statute.

In the Russian Federation the Constitutional Courts of the following federal entities were established in addition to the federal Constitutional Court: Adigea (based in Majkop); Baskhiria (based in Ufa); Buryatia (based in Ulan-Ude); Dagestan (based in Mahachkala); lrkutskaya Oblast (based in lrkutsk); the Kabardino/Balkar Republic (based in Nalchik); Karelia (based in Petrozavodsk); Komy (based in Siktivkar); Northern Ossetia (based in Vladikavkaz); Tatarstan (based in Kazan) and Tuva (based in Kizil); and Yakutia/Sakha (based in Yakutsk). Subsequently, Constitutional Courts were also introduced in the following federal units: Altai, Chuvashia, lngushia, Khakassia, the Karachaewo-Cherkez Republic, Kalmikia, Marii-El, Udmurtia. Particularities of constitutional review systems of federal entities are presented in detail in Chapter XIV. Particularities of the Constitutional Reviewin Some Countries/Constitutional Review in the New Democracies.

c) Argentina

Particularities of the Argentinean constitutional review system are presented in detail in Chapter XIV. Particularities of the Constitutional Review in Some Countries/Central and South America/The Particular Systems of Constitutional Review/Argentina.

d) The Former SFRY and Present FR of Yugoslavia

Before 1963 the Yugoslav system for the protection of constitutionality and legality included the review of the constitutionality and legality of rules under the principle of self-review within the parliamentary system. The authors of the project that introduced constitutional review came to the conclusion that this review lacked efficiency because - in so far as it was practiced - it was mainly oriented to the conformity of the policy expressed in some rules and less to legality in its literal meaning. As far as the latter is concerned it was too tolerant, and therefore inefficient. This led to a search for a new solution to these problems. Practice, however, revealed that legislative and executive bodies were, mainly for objective reasons, unable to review the constitutionality and legality of the rules objectively and critically, because they were themselves their authors.

The experiences from elsewhere in the world proved the same - it was a period of many new constitutional review systems. On these grounds it was generally believed that the protection of the constitutionality and legality of rules would favour special autonomous bodies, independent of the legislative and executive powers. In this period more and more countries introduced special bodies of constitutional review, especially Constitutional Courts, whereof the main task was to evaluate the conformity of legal rules with the Constitution as well as to abrogate and annul unconstitutional or illegal rules. Such decisions issued by the Constitutional Court actually have the power of Law, because they affect everyone to whom such invalidated provisions refer; as such this encroaches upon the sphere of the legislature or other measure-imposing bodies. Leaving decisions on such disputes to a third, neutral, body which is supposed to issue decisions mainly with reference to reasons based on constitutional law and after certain proceedings before the Constitutional Court, actually entails the depolarisation of such disputes and minimises arbitrariness, which is in the interest of the stabilisation of the legal system. Constitutional review was expected to contribute to the faster and more efficient elimination of unconstitutional and illegal phenomena and negative tendencies; at the same time it should also introduce more democratic methods and flexibility when solving such problems. If such functions were performed by government bodies, they would, according to the then belief, not only deal with the problems of legality, but would also interpose themselves as eager political agents.

Hence, this all led to the introduction of special constitutional bodies, whereof the constitutional review would limit the field of legislative, and partly also executive, power, and which would be, above all, apolitical supervisory bodies of special types, featuring various additional, distinctly judicial, powers, including the basic power to review the constitutionality of statutes. The intention of the Yugoslav constitutional order was that the new Constitutional Courts were supposed to act as a part of the parliamentary system and not as classical judicial bodies such as might be inferred from the name itself. This, however, did not mean that the decision-making process of existing Constitutional Courts could be identified with the legislative function. The then theory on constitutional law, however, did not accept Kelsen's view whereunder decisions issued by the Constitutional Court relating to the constitutionality of statutes is actually a legislative function, but rather considered that in such cases decisions issued by Constitutional Courts should be understood as individual acts rather than general acts. On the introduction of constitutional review, the political aspect of constitutionality and legality was attributed great importance. At the same time Constitutional Courts should have the least possible restriction on the method of their operation, their preparations for decisions, discussions and decision-making process (except for the basic rules of procedure specified by law). In all cases, however, Constitutional Courts depended on applications lodged by petitioners or proponents.

The 1963 Yugoslav Federal Constitution as well as the 1963 Constitutions of former constituent republics introduced the constitutional review on the federal as well as on the level of constituent republics. The Constitution of the Republic of Slovenia of 1963 (Official Gazette SRS, No. 10/63) envisaged the first former constituent republic Constitutional Court⁸².

The constitutional courts were a new institution for the protection of constitutionality and legality that had not existed in the former constitutional system: the Constitutional Court as an independent body with precisely specified powers in the field of constitutionality and legality protection, a special body in addition to the bodies of the parliamentary system in the narrow sense of the word and in addition to the already existing bodies within the system of ordinary justice. At first constitutional review was concerned with discussions on its compatibility with the principle of the unity of powers, as this was the leading principle of the legal system. The actual turning-point in favour of the introduction of the constitutional review into the legal system was brought about by the positive attitude of the leading political structure to the institution of the constitutional review in the proceedings preceding the adoption of the Constitution of 1963. In addition to the Federal Constitutional Court in charge of protecting federal constitutionality, constituent republic constitutional courts were also established in charge of protecting constituent republic constitutionality; they did not represent a different instance in relation to the Federal Constitutional Court⁸³.

The Constitution of 1974 reorganised the position and the powers of the Slovenian Constitutional Court (Official Gazette SRS No. 6/74); more detailed provisions on powers and proceedings were defined in the Constitutional Court of the Socialist Republic of Slovenia Act (Official Gazette SRS, No. 39/74 and 28/76); new Rules of Procedure of the Constitutional Court were also adopted (Official Gazette SRS, No. 10/74).

Under constituent republic Constitutions of 1974 the jurisdiction of their Constitutional Courts was based on the separation of jurisdictions between the Federation and the constituent republics and Autonomous Provinces; each of these Constitutional Courts acted with due institutional independence in compliance with the powers specified in the constitution of the appropriate level, whereby the Constitutional Courts were in no hierarchical relation to one another and the Federal Constitutional Court was not an instance above other Constitutional Courts, nor was the constituent republic Constitutional Court an instance above provincial constitutional courts. However, the Federal Constitutional Court was empowered to decide on jurisdictional disputes between the Constitutional Courts of constituent republics and/or Autonomous Provinces. The proceedings before the Constitutional Courts followed the rules of procedure adopted by the Constitutional Courts themselves, pursuant to the idea that the proceedings before the Constitutional Court should omit formality and any bureaucratic approach to the benefit of efficiency and promptness. Therefore, elements of traditional and contradictory judicial proceedings were omitted from the rules of procedure.

Accordingly, the Constitutional Courts were established and their powers were specified in compliance with the Constitution. In individual constituent republics and autonomous provinces their position and the respective proceedings were also specified in detail in Constitutional Court Acts or even in internal regulations that, as a rule, regulated only their organisation and internal operation. Individual Constitutional Courts had different numbers of members. The Constitutional Court Judges were elected by the Parliaments, their term of office was eight years without the possibility of re-election to the same Court. The President of the Constitutional Court was elected from among the judges for a shorter term of office, most often for a period of 4 years, without the possibility of re-election to the same office. The judges enjoyed parliamentary immunity.

On one hand, stress was laid on the autonomy and the independence of the Constitutional Court, on the other hand, the courts stressed the need for cooperation with government bodies and the protection of constitutionality and legality, because the Constitutional Court could not be an isolated and closed institution.

This initial period was characterised by a small number of applications lodged with the Constitutional Courts (also due to the relatively low normative power of the constituent republics), and individual petitions prevailed. In spite of the rare notion that the powers of Constitutional Courts should be extended, in particular to electoral cases, impeachment, the constitutional review of referenda, the preventative constitutional review of international treaties, or even to the constitutional review of the then citizens' associations, officially the opinion was adopted that the usefulness of the constitutional judiciary should be preserved in the legal system, without extension of its powers. The Constitutional Courts should limit themselves to constitutionality and legality, whereas all other questions relating to the individual belong to the sphere of other bodies outside the Constitutional Courts.

The present constitutional review in the FRY has been carried out by the Federal Constitutional Court and the Constitutional Courts of the Republic of Serbia/the FRY and Montenegro/the FRY. The Constitution of the FRY (Official Gazette FRY, No. 1192) and the Federal Constftutional Court Act (Official Gazette FRY, No. 36/92) regulate the organisation, proceedings, as well as the powers of the Federal Constitutional Court. The Constitution of the Republic of Serbia (Official Gazette, No. 1/90) and the Proceedings Before the Constitutional Court of Serbia and the Legal Effect of its Decisions Act (Official Gazette, No. 32/91), the Constitution of the Republic of Montenegro (Official Gazette, No. 48/92) and the Constitutional Court of Montenegro Act (Official Gazette, No. 44/75) regulate the organisation, powers and the proceedings before the Constitutional Court of both constituent republics. The Constitutional Courts of the constituent republics are independent of the Federal Constitutional Court⁸⁴. The Federal Constitutional Court does not have the position of the highest court, or even the position of a "Supreme Court". The Federal Constitutional Court is composed of seven members (Para. 1 of Article 2 of the Federal Constitutional Court Act) with a tenure of 2 years. The Powers of the Federal Constitutional Court under Article 124 of the Federal Constitution reflect the relation between the Federation and constituent republics. The Federal Constitutional Court decides on:

the conformity of the Constitutions of constituent republics with the Federal Constitution (in meritum);
the conformity of laws and executive regulations with the Federal Constitution and with ratified international treaties (the unconstitutional law/executive regulation can be abrogated);
the conformity of the laws and executive regulations of constituent republics with Federal Law (the illegal law/executive regulation can be abrogated);
the conformity of other federal regulations with Federal Law;
the conformity of acts and activities of political parties with the Federal Constitution and Federal Law;
constitutional complaints in relation to violations of constitutional rights by individual acts;
jurisdictional disputes between Federal bodies and constituent republics and between constituent republics themselves;
appeals in relation to violations of rights concerning Federal elections.

e) Bosnia and Herzegovina⁸⁵

According to the Dayton Agreement, the Constitutional Court (Annex 4, Article VI) has appellate jurisdiction over constitutionality issues arising out of a judgement of any other court in Bosnia and Herzegovina (Article VI, Para 3 (b); this may include human rights disputes (cf. Article 11).

The Court is to have jurisdiction over issues referred to it by any court in the country on whether a law on whose validity its decision depends, is compatible with the Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols or with rules of public international law pertinent to the court's decision (Article VI, Para 3 (c)).

It also has jurisdiction to decide any dispute between the entities that arises under the Constitution between the Entities (the Federation of Bosnia and Herzegovina and the Serbian Republic of Bosnia) and the Central Government, and between the Entities themselves, or between institutions of Bosnia and Herzegovina including the question of the compatibility of an Entities' Constitution with the Constitution of Bosnia and Herzegovina (Article VI, Para. 3 (a)).

The Court is composed of nine members: four from the Federation of Bosnia and Herzegovina, two from the Serbian Republic of Bosnia and three non-citizens of Bosnia and Herzegovina from countries selected by the President of the European Court of Human Rights.

The Constitution of the Serbian Republic of Bosnia: The Constitutional Court (Article 120 - Article 125) decides on:

the conformity of laws, other regulations and general enactments with the Constitution;
the conformity of regulations and general enactments with the law;
conflicts of jurisdiction between agencies of legislative, executive and judicial authorities;
conflicts of jurisdiction between agencies of the Republic, and regions, cities and municipalities;
the conformity of programs, statutes and other general enactments of political organisations with the Constitution and the law.

In accordance with Amendment XLII, the Constitutional Court monitors constitutionality and legality by providing constitutional bodies with opinions and proposals for enacting laws to ensure the "protection of the freedoms and rights of citizens".

The Constitutional Court may initiate proceedings on constitutionality and legality itself. Moreover, anyone can initiate such proceedings.

The Court is composed of 7 Judges with a tenure of 8 years, after which they cannot be re-elected. The President of the Constitutional Court is elected by the National Assembly for a three-year term, after which he cannot be re-elected. Its proceedings, the legal effect of its decisions and other questions of its organisation and work are regulated by law.

The Constitution of the Federation of Bosnia and Herzegovina (proposed in the Washington Agreement of February 1994): The primary functions of the Constitutional Court (Chapter IV, Section C, Articles 9-13) are to resolve disputes between Cantons; between any Canton and the Federation Government; between any Municipality and its Canton or the Federation Government; and between or within any of the institutions of the Federation Government.

It also determines, on request, whether a law or a regulation is in accord with the Constitution of the Federation. The Supreme Court, the Human Rights Court or a Cantonal Court has the obligation to submit any concerns of whether an applicable law is not in accord with the Constitution to the Constitutional Court. Decisions are final and binding.

According to the Federation Constitution (Chapter 11, A, Article 6) "all courts... shall apply and conform to the rights and freedoms provided in the instruments listed in Annex to the Federation Constitution" (this includes the European Convention for Human Rights and Fundamental Freedoms).

The Court is composed of nine Judges.

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