The influence of the constitutional bodies upon the appointment or elections of the members of the Constitutional Court differs from system to system. In the election based systems as a rule Parliaments exercise greater influence upon the elections of Constitutional Court Judges as compared to the elections of judges of the ordinary courts. In those systems¹¹⁸ Constitutional Court Judges are exclusively appointed by the legislative body. The same principle is followed by Portugal where Constitutional Court Judges, appointed by the Parliament, co-opt a certain number of other Constitutional Court Judges. In case these systems involve the participation of the executive power, its role is limited to the recruitment of candidates.

The nature of the relation between the Parliament and the Constitutional Court is that the Parliament as a legislature adopts statutes whose conformity with the Constitution is evaluated by the Constitutional Court. Beside this, the Parliament regulates by statute the important questions of the status and functioning of the Constitutional Court and the status of the judges of the Constitutional Court. The Constitutional Court has an important influence on the activities of the Parliament, as it is bound to consider and implement the decisions of the Constitutional Court.
 

- Concerning the Executive branch, the Head of State and the Government:

Appointment Based Systems (without the Participation of a Representative Body): In France three members of the Constitutional Council are appointed by the President of the Republic, three by the President of the National Assembly and three by the President of the Senate. In Japan, Sweden and in many African countries with constitutional/judicial review, judges (of the Supreme Court) are appointed exclusively by the Government. In Burundi, Cyprus, Denmark, Ireland, Senegal, South Africa, Turkey and the USA, Constitutional Court Judges are exclusively appointed by the State sovereign or by the Head of State. In the Argentinean Province of Tucuman one part of Constitutional Court Judges are appointed by an electoral body composed of the judges of the Supreme Court and the rest of the judges are appointed by the executive power.

Mixed systems (appointment and election): In Andorra the appointment of Constitutional Court Judges is subject to the influence of the Head of State (the executive) and the Parliament. In Albania, Armenia, Austria, Bosnia and Herzegovina, Bulgary, Cambodia, Canada, the Czech Republic, Georgia, Kazakhstan, Romania, and Slovakia one part of Constitutional Court Judges are elected by the Parliament or are appointed by the Head of State or by the President of the Parliament, and the rest by the executive power. In Italy, Peru and Spain one part of Constitutional Court Judges are elected by the Parliament, one part is appointed by the Government and the remaining part by the senior judicial officials. With mixed systems, too, the role of the Parliament is prevalent and the role of the executive power is sometimes limited to a mere recruitment of the candidates.

On the other hand, the Constitutional Court is empowered to decide the Proceedings before the Constitutional Court for Establishing the Responsibility of the President of the Republic, the Prime Minister or Ministers (Impeachment proceedings). It is necessary to emphasize criminal liability and civil liability beside the political responsibilities of a Minister. The individual criminal liability of a Minister is made evident through a special procedure. In the case of civil liability, a minister is liable for material damages.

Furthermore, there is the possibility of discovering the responsibility of the Prime Minister and Ministers as regards violations of the Constitution and statutes in the performance of their duties which result in charges of Impeachment against the Prime Minister or against any Minister of State. The Parliament (e.g. the National Assembly in Slovenia) may summon the Prime Minister or any Minister of State before the Constitutional Court to answer charges relating to breaches of the Constitution or of statute, committed during the performance of office. Any such charge is determined by the Constitutional Court.

- Concerning the Executive or Administrative Branch:

Constitutional Court decisions are final and binding. There is no legal remedy against a decision issued by the Constitutional Court. However, some systems allow the Constitutional Court to change its decisions (e.g. Belarus, Latvia, Ukraine).

- Concerning the Judiciary:

In particular systems the composition of the Constitutional Court is predetermined and is composed of top judicial officials. Since the body competent for constitutional/judicial review consists of representatives of the highest national courts in Greece and in some other countries (Hong Kong until 1 July 1997, Mauritius, Rwanda, Sudan) neither the Parliament nor the government exert direct influence on the appointment of Constitutional Court Judges (See Chapter V).

- Concerning State bodies in general:

In most systems only the Constitutional Court is entitled to decide on disputes concerning jurisdiction between State bodies.

In addition, all State bodies have in principle the status of a legitimate (privileged) petitioner in proceedings before the Constitutional Court.

The Constitutional Court and the Judicial Branch

The following relations between the Constitutional Court and the judicial branch are possible:

- One of the powers of Constitutional Courts may be a concrete constitutional review; the European system did not adopt a judicial review system - it is obligatory for ordinary courts to present a case of potential unconstitutionality to the Constitutional Court; In the event that a court, in deciding a concrete case, concludes that a statute which it must apply is unconstitutional, it must stay the proceedings and initiate proceedings before the Constitutional Court. The proceedings in the court may be continued after the Constitutional Court has issued its decision.

- The Constitutional Court may also decide on jurisdictional disputes between ordinary courts and bodies of State administration.

- The Constitutional Complaint is a special subsidiary legal remedy before the Constitutional Court. The Constitutional Court is limited in its decisions on constitutional matters, and violations of constitutional rights. However, if a violation is determined, the decision may have a cassatory effect as a rule inter partes (and erga omnes if the subject-matter of the decision is a legislative act). The Constitutional Court here retains the position of the highest judicial authority. These courts can be referred to as superior courts of cessation, because Constitutional Courts reviewing decisions of ordinary courts act in fact as the third and the fourth instance. Although the Constitutional Court is not a court of full jurisdiction, in specific cases it is the only competent court to judge whether an ordinary court has violated the constitutional rights of a plaintiff. It involves the review of micro-constitutionality and perhaps the review of the implementation of a law, which, however, is a deviation from the original function of the Constitutional Court. Cases of constitutional complaint raise sensitive questions of defining constitutional limits. In any case, the Constitutional Court is limited strictly to questions of constitutional law. The Slovenian system is specific in that the Constitutional Court may, under specified conditions, make a final decision on constitutional rights or fundamental freedoms themselves (Para. 1 of Article 60 of the Slovenian Constitutional Court Act, Official Gazette RS, No. 15194).

The protection of fundamental rights and freedoms is an important function of the majority of Constitutional Courts, irrespective of whether they perform the function of constitutional judgment in the negative or positive sense. Whenever a Constitutional Court has the function of a "negative legislature", constitutional review is strongest precisely in the field of fundamental rights. Even in other fields (the concretisation of State-organisational and economic constitutional principles) in which the legislature has the primary role even in principle, Constitutional Courts insure that fundamental rights be protected. Precisely in the field of the protection of rights, the Constitutional Court also has the function of the substitute "Constitution-make" (a "positive function"), which means that in specific cases Constitutional Courts even supplement constitutional provisions.

The Constitutional Court is not a part of the judicial branch.

Guarantees of the Independence of Constitutional Justice

A. The Financing (the Budget) of the Constitutional Court as the Basis of its Independence

Bulgary: The Constitutional Court shall have an independent budget (Article 3 of the Constitutional Court Act of 30 July 1991).

Spain: Under the "second additional" Article of the Constitutional Court Act No. 2/1979 of 3 October, 1979, the Constitutional Court proposes the budget, which is managed as a part of the whole State budget. The Secretary General of the Constitutional Court prepares the budget with the help of the Court administration; in addition, he implements the budget and prepares the closing balance.

Portugal: Under Article 5 of the Organisation, Activity and Proceedings of the Constitutional Court Act No. 28/82 of 15 November, 1982, the Constitutional Court disposes of its budget; which is adopted within the scope of "the general expenses" of the State budget.

Germany: Under Article 1 of the Constitutional Court Act (of 12 March, 1951, with amendments), the Constitutional Court has a more independent and autonomous position in comparison with other constitutional bodies. Therefore, the Constitutional Court as a constitutional body is not financially subordinated to any Ministry, but it is an autonomously managed and budgeted independent body. The Court budget may be adopted only as a particular autonomous plan to be included in the whole State budget. The Court may manage the budgetary funds independently. The budget is discussed and adopted by a plenary Court session (Article 1.2 of the Rules of procedure of the Constitutional Court of 2 September, 1975, amended on 5 December, 1978). Consequently, a Plenum of the Court forms a special Budgetary Council (Article 3.1.c of the Rules of Procedure of the Constitutional Court).

Hungary: The Constitutional Court draws up its own budget and submits it, as part of the State budget, for approval to the Parliament (Article 2 of Act No. XXXII of 1989 on the Constitutional Court).

Austria: The Court budget is not regulated either by a statute or by rules of procedure or any other internal regulation of the Constitutional Court. However, in practice the Court has its own budget, as per agreement with the Ministry of Justice. The Court may manage its budget as a part of the whole State budget, adopted by the Parliament. The Court budget constitutes a special section of the State budget, similar to budgets of other State bodies.

Italy: Under Article 14.2.1. of the Organisation and Proceedings of the Constitutional Court Act No. 87/1953 of 11 March, 1953, the Constitutional Court may autonomously manage its expenditures within the scope of funding adopted by statute.

France: The funds required for the activity of the Constitutional Council are determined within the scope of the whole general State budget. The President of the Constitutional Council is empowered to provide budgetary expenses. (Article 16 of the Decree on the Constitutional Council No. 58/1067 of 7 November 1958 with amendments).

Belgium: The funds necessary for the functioning of the Court of Arbitration is allocated under the allocations budget (Article 123.1 of the Special Law of 6 January, 1989, on the Court of Arbitration).

The Russian Federation: Under Article 124 of the Constitution, the courts are financed only from the Federal budget, thus providing for the complete and independent administration of justice in accordance with Federal Law. In addition, the Federal Constitutional Law on the Constitutional Court of the Russian Federation of 24 June, 1994 contains exhaustive provisions guaranteeing the activities of the Constitutional Court (Article 7 of the Law): the Federal Constitutional Court is independent of any other body in organisational, financial, and material and technical terms. Court funding is provided for in the federal budget and ensures the independent and comprehensive performance of constitutional judicial proceedings. The federal budget annually allocates the separate funding needed to ensure the activities of the Constitutional Court of the Russian Federation, and is managed by the Court autonomously. Spending estimates of the Court may not be reduced as compared to a preceding financial year¹²⁰. The Court autonomously and independently arranges information and personnel support for its activity. The property required by the Court to perform its activities and managed by it is federal property. The Court may vest the right to manage the mentioned property in the structural units comprising its staff. No restrictions of legal, organisatorial, financial, information, material, technical or other conditions on the activities of the Court, as prescribed by the present Constitution, are permitted.

Lithuania: The freedom and independence of the Constitutional Court from other institutions is ensured by financial, material, technical as well as organisatorial guarantees secured by law (Article 5-1.1 of the Constitutional Court Act No. 1-67 of 3 February, 1993, as amended by Act No. 1-1475 of 11 July, 1996). The Constitutional Court is financed by the State budget by ensuring the Constitutional Court the ability to independently and properly perform the functions of constitutional review. The estimate of expenditures must be approved by the Constitutional Court, which also independently disposes of the funds that are allocated to it (Article 5-1.2 of the Constitutional Court Act). The buildings and other possessions which are used by the Constitutional Court are State property transferred into the possession, use and disposal of the Constitutional Court on trust. These possessions may not be seized or transferred to other subjects without the consent of the Constitutional Court (Article 5-1.3 of the Constitutional Court Act). Restrictions of legal, organisatorial, financial, information, material, technical and other conditions of Court activities provided by the Constitutional Court Act are prohibited (Article 5-1.5 of the Constitutional Court Act).

Belarus: Guarantees of the activity of the Constitutional Court: Funding for the Constitutional Court is drawn from the budget of the Republic and guarantees the complete independence of legal proceedings before the Court. A separate item in the annual budget of the Republic provides for the funds required to guarantee the work of the Constitutional Court, and the Court is free to use those funds as it sees fit (Article 24.1 of Constitutional Court Act No. 2914/XII of 30 March, 1994).

The premises required by the Constitutional Court to carry out its duties are the property of the Republic; the Court is responsible for their day-to-day management (Article 24.2 of the Constitutional Court Act).

Latvia: The Constitutional Court is financed by the State budget (Article 37 of the Constitutional Court Act of 5 June, 1996).

Georgia: Under Article 4.2 of the Constitutional Court Act of 31 January 1996, expenses connected with the organisation and activities of the Constitutional Court are determined by a separate section of the State budget. The President of the Constitutional Court submits a draft of expenses connected with the activities of the Constitutional Court by a procedure determined by law.

Romania: Under Article 50 of the Organisation and Activity of the Constitutional Court Act No.47/1992, the Court has its own budget as a part of the whole State budget. A draft budget must be approved by the judges of the Constitutional Court by a majority of votes and proposed for adoption to the Government and included in the whole State budget.

Croatia: Under the Constitutional Court Act (Narodne novine, No. 13/1991, with amendments), the Constitutional Court has its own budget which is adopted as a special part of the State budget by the representative chamber of the Parliament on the proposal of the Constitutional Court.

Slovakia: The Constitutional Court has a separate section in the State budget (Article 77 of the Act on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the Status of Judges, of 20 January, 1993).

Turkey: The Constitutional Court, within the framework of the general budget, administers its own budget (Article 56 of the Law of the Organisation and Trial Proceedings of the Constitutional Court No. 2949 of 12 November, 1983). In the first instance, the President is responsible for covering expenses out of the budget. In the second instance, responsibility for expenses is assigned to the Secretary-General. Accounting is managed by the Department of Accounts established within the Constitutional Court. The payment of expenses is administered by the Directorate of the Financial Department of the Court. The Minister of Justice, or by consent, the Secretary General of the Court participates in discussions relating to the budget and conducted before the Parliamentary Assembly. The President and members of the Court may not, however, be summoned to present oral explanations.

Ukraine: Financing the Constitutional Court is regulated by the State budget in a separate item (Article 31.1 of the Constitutional Court Act). Proposals as to the size of the budget of the Court as well as the draft of the respective estimate are submitted by the President of the Court to the Cabinet of Ministers of the State and the Parliament during the formulation of the proposed State budget for each following year (Article 31.2 of the Constitutional Court Act).

Armenia: Under Article 7 of the Constitutional Court Act, the President of the Constitutional Court shall present to the Government for inclusion in the State budget the projected expenses of the Constitutional Court.

The budget of the Constitutional Court shall be part of the State budget.

Slovenia:

The Budget of the Slovenian Constitutional Court: The material basis of the real autonomy and independence of the Constitutional Court also depends on autonomy as regards management of the budgetary funds. Therefore, statute declares that the funds for the work of the Constitutional Court are determined by the National Assembly following the proposal of the Constitutional Court, and constitute a part of the Republic of Slovenia Budget (Article 8.1 of the Constitutional Court Act). The Constitutional Court is not dependent on the Government in proposing the budget, which otherwise proposes the State budget. The Constitutional Court decides on the use of the mentioned funds (Article 8.2 of the Constitutional Court Act).

Control of the use of these funds is performed by the Court of Auditors (Article 8.3. of the Constitutional Court Act), which is the body with the ultimate responsibility for auditing State finances, the State budget and monies expended for public purposes (Article 150.1 of the Constitution).

Ukraine: The costs incurred by parties in constitutional examinations are compensated by budgetary funds as decided by the Constitutional Court of Ukraine (Article 59 of the Constitutional Court Act).

Slovenia: in proceedings before the Slovenian Constitutional Court each participant bears his own costs, unless the Court decides otherwise (Article 34.1 of the Constitutional Court Act). If a party fails to provide the necessary information for the Court due to unexcused absence, lack of preparedness or some other reason and, as a result, the hearing must be postponed, the Court may decide that the postponement of the hearing shall be at the expense of this party (Article 34.2 of the Constitutional Court Act). Petitioners pay court fees in accordance with a special statute (Article 34.3 of the Constitutional Court Act). Such a statute has not been passed to date.

Today, however, constitutional review decisions are no longer limited to the mere function of cessation, and the so-called positive decisions issued by constitutional Courts are gradually gaining importance:

- One of these forms involve appellate decisions (Germany, the USA), in which the Constitutional Court instructs the legislature (explicitly or implicitly, with or without a time limit) to adopt certain regulations in a particular domain. Recently certain countries have even imposed special provisions regarding the right of constitutional/judicial review bodies to instruct the legislature. Such a "positive" authorisation of constitutional justice in a rather narrow form exists in the German, Austrian and Polish systems, and even more intensely in the Italian, Portuguese, Hungarian and Brazilian systems of constitutional/judicial review. The Portuguese Constitutional Court is provided with the express constitutional authorisation to identify the existence of unconstitutionality due to an omission. This does not involve the fact that the proceedings of an abstract review of rules might reveal legislative omissions due to the insufficient or incorrect solution to a specific issue, but aims at direct and independent evaluation and identification of omissions caused by the legislature. The nature of the Portuguese Constitution, which imposes upon the legislature the obligation of legislative activity, has influenced the fact that the Portuguese Constitutional Court actually acquired such power. Considering the sensitive nature of this power, the Constitutional Court can only be active in the particular domain on the basis of the role of a narrow circle of legitimate petitioners. The Hungarian Constitutional Court, too, has jurisdiction to eliminate an unconstitutional situation that has developed due to some omission of a government body; proceedings can be initiated by the Constitutional Court alone or on the proposal of any government body or aggrieved person. The Brazilian constitutional/judicial review system features special abstract complaint due to omission whereby government bodies, political parties represented in the Parliament and political organisations act as the main legitimate petitioners of the proceedings. At the same time, this system has a special individual complaint against an omission caused by the legislature (mandado de injuncao). The Italian constitutional review system is, above all, characterised by the so-called creative decisions with which the Constitutional Court may even change or add wording to the regulation in question.

- Another factor in the decision-making process is the guidelines issued following a constitutional/judicial review; such guidelines for the future action of the legislature, the government and the administration may include appellate decisions, and partly also other decisions (decisions of abrogation, decisions of annulment, possibly also declaratory decisions relating to conformity with the Constitution).

Sometimes such decisions already clearly indicate the essential point of the legal regulation, so that the legislature has only to elaborate the details and to provide for official adoption of the statute. This phenomenon is sometimes referred to as the negative legislative activity of Constitutional Courts or as the paralegislative or superlegisiative activity of modern Constitutional Courts. Nevertheless, from a global point of view, positive decisions of constitutional justice are of a substitutional character. The extent of this function is proportional to the intensity with which constitutional rights are affected.

- The court may issue decisions on unconstitutionality with reservation or with interpretations created by the Constitutional Court itself (interpretative decisions). In these decisions the Constitutional Court insures with its own interpretation that in the future the implementation of the statute complies with the Constitution.

One specific feature of the Slovenian system is the use of the so-called appellate judgment issued by the Constitutional Court, and of content-related guidelines. The novelty of the Constitutional Court Act is that it allows for the possibility of the Constitutional Court assessing whether the Legislature has omitted a necessary legal regulation arising out of the Constitution. If the Constitutional Court determines that a statute, a regulation or a general act for exercising public powers is unconstitutional or illegal because a certain matter which it should regulate is not regulated or is regulated in a manner which makes it impossible to be abrogated either retroactively or prospectively, a declaratory judgment is adopted. The Legislature or the body that issued such an unconstitutional or illegal general act must abolish the ascertained unconstitutionality or illegality within a period set by the Constitutional Court (Article 48 of the Constitutional Court Act). In this way the Constitutional Court Act offers new possibilities (techniques, modes) of Constitutional Court decision-making, among which the Constitutional Court is free to choose when looking for an adequate form for its decision. Thus, for example, interpretative decisions are necessary and reasonable whenever in practice a disputed provision is understood and applied in several ways whereof certain ones are constitutionally acceptable and others are not. In such a case abrogation of the provision would not be reasonable because it would also affect those who have already applied the provision in conformity with the Constitution; accordingly, it is necessary to use the interpretative decision, through which the Constitutional Court preserves the disputed provision in the legal system in its undisputed extent or its meaning that conforms with the Constitution, at the same time indirectly eliminating from the legal system the use of the disputed provision if it is inconsistent with the Constitution (through the duty of ail government bodies to act in compliance with any decision issued by the Constitutional Court)¹²¹.

Irrespective of the above, the Constitutional Court in its relation to the Legislature usually follows the principle of self-restraint: the interpretation of the provision does not exceed its limits, ie. there is no direct amendment or modification of the provision by the Constitutional Court.
 

D. lmmunities, lncompatibilities, Material Independence, and Protocol Rank

A special feature of the office of Constitutional Court Judge is its incompatibility with certain activities. In almost all systems the office of Constitutional Court Judge is compatible with scientific and artistic activities, but incompatible with political and commercial activities. With reference to political activities there may be various grades of restrictions, ranging from the absolute prohibition of membership in a political party (e.g. the Czech Republic) to the prohibition of membership for a certain period prior to elections (e.g. Austria) or to the prohibition of membership in the bodies of a political party (e.g. Slovenia). The prevailing opinion regarding the activities of Constitutional Court Judges in public is that they cannot be exclusively closed within the circle of their institution and that their activities in public contribute to the transparency of the Constitutional Court as well as to the pluralism of opinions.

Some significant systems in force are, as follows:

Georgia: Under Article 4.3 of the Constitutional Court Act of 31 January, 1996, the State is obliged to guarantee to a member of the Constitutional Court appropriate conditions for their work and life to ensure their independence. The State guarantees the security of members of the Constitutional Court and their family (Article 4.4 of the Constitutional Court Act). The social guarantees to the members of the Constitutional Court are regulated by special Act No. 293-11G of 25 June, 1996.

Belarus: Guarantees of the independence of the Constitutional Court: The independence of Constitutional Court judges is guaranteed by their permanence of office, their immunity, their equal rights as judges, the procedure for the suspension and termination of the appointment of judges established by this Law, the right to a pension, the obligatory nature of the established procedure for constitutional legal proceedings, the prohibition of any form of interference in court activities, the guarantee of judges' material and social circumstances, and guarantees of security corresponding to their elevated status (Article 25.1 of the Constitutional Court Act).

The salaries of the President, Vice-President and judges of the Constitutional Court are determined on the same scale as that governing the salaries of the Chairman, First Vice-Chairman and Vice-Chairmen of the Supreme Council respectively (Article 25.2 of the Constitutional Court Act).

Constitutional Court judges not possessing living space, or who have flats with several tenants or need better accommodation for other reasons are to be granted comfortable accommodation in the city of Minsk at the expense of the budget of the Republic, no later than six months after their election to the post of judge or the advent of the reasons mentioned hereinabove (Article 25.3 of the Constitutional Court Act).

If a Constitutional Court judge's term of office ceases before they reach retirement age or, in particular cases provided for in the Constitutional Court Act, they may, at their request, return to their former post or be offered equivalent work if the post is not available (Article 25.4 of the Constitutional Court Act).

The employment positions offered to former Constitutional Court Judges is the responsibility of the Supreme Council of the Republic of Belarus. In this connection, the length of judges' service in the Constitutional Court is counted as part of the period of service completed in their previous work (Article 25.5 of the Constitutional Court Act).

Constitutional Court judges, including those who have resigned or retired, enjoy the guarantees provided for in legislation on the status of judges in ordinary courts. In the event of other legislative acts affording Constitutional Court judges greater guarantees of independence than provided for in this Law, the provisions of those acts shall apply (Article 25.6 of the Constitutional Court Act).

Ukraine: The Constitutional Court is the sole body exercising constitutional review in Ukraine (Article 1.1 of the Constitutional Court Act of 16 October, 1996). Guarantees for the activity of judges of the Constitutional Court of Ukraine are as follows: the Independence of Judges (Article 27 of the Constitutional Court Act), the immunity of judges (Article 28 of the Constitutional Court Act), and the social and material provisioning of judges (Article 29 of the Constitutional Court Act).
 
 

Armenia:

Guarantees of the independence of the Constitutional Court:

A Member of the Constitutional Court shall be independent and only subject to the law (Article 97 of the Constitution). Any exerting of influence on a Member of the Court in relation to his/her activities is prohibited and shall be persecuted by law (Article 10 of the Constitutional Court Act).

A Member of the Constitutional Court may not hold any other public office or be engaged in any other paid occupation, except for scientific, educational and creative work. A Member of the Constitutional Court may not be a Member of any political party or engage in any political activity. (Article 98 of the Constitution, Article 3 of the Constitutional Court Act).

A Member of the Constitutional Court may not be an author or co-author of legal acts that are envisaged by Sections 1 and 2 of Article 100 of the Constitution (Article 3 of the Constitutional Court Act, an amendement adopted on December 9, 1997).

A Member of the Constitutional Court shall be irremovable and may hold office until the age of 70. A Member of the Constitutional Court may be removed from office on the grounds and by the procedures specified by the Constitution and the Constitutional Court Act ( Article 11 of the Constitutional Court Act).

A Member of the Constitutional Court shall have personal immunity.

A Member of the Constitutional Court may not be detained and subjected to administrative or criminal prosecution through judicial proceedings without the consent of the body that has appointed him/her and a decision of the Constitutional Court. In case of the arrest or search of a Member of the Constitutional Court, the President of the Constitutional Court and the body that has appointed him/her must be immediately informed. A Member of the Constitutional Court may be arrested or searched only with the warrant of the Prosecutor-General of the Republic of Armenia. The security of the Court and its Members is ensured in a manner prescribed by the law. ( Article 12 of the Constitutional Court Act).

In order to ensure the activities of the Member of the Constitutional Court, the state provides the Member with adequate living and working conditions. The level of compensation of the President and Members of the Constitutional Court shall be determined by law (Article 13 of the Constitutional Court Act).

Slovenia:

The Position of the Constitutional Court in the National Hierarchy of the Courts: The Constitutional Court is the highest body of judicial power for the protection of constitutionality, legality, human rights and basic freedoms (Article 1. 1 of the Constitutional Court Act).

Present Situation/Standard Legal Reference: The Constitution of the Republic of Slovenia of 1991 again brought about changes in the position and powers of the Constitutional Court (Official Gazette RS, No. 33191). A new Constitutional Court Act (Official Gazette RS, No. 15/94) specified in detail the provisions of the powers and proceedings. New Internal Regulations of the Constitutional Court are in the process of being adopted.

Incompatibilities and lmmunities: The following activities are incompatible with judicial function (Article 166 of the Constitution and Article 16 of the Constitutional Court Act):

• office in government bodies;
• local government offices;
• office in political parties;
• other offices and activities deemed incompatible with the office of a judge of the Constitutional Court, in accordance with the constitutional Court Act.

A judge of the Constitutional Court may not be held legally responsible for an opinion or a vote expressed at a public hearing or session. They may not be detained, nor may criminal proceedings be instituted against them without the permission of the National Assembly, unless the judge commits a crime for which a sentence of over five years is prescribed (Article 18 of the Constitutional Court Act).

Working Conditions of Constitutional Court Judges:

a) Salary and allowances

The President of the Constitutional Court is entitled to a salary and additional payment based on his office equal to the amount determined for the President of the National Assembly. Judges of the Constitutional Court are entitled to a salary and an additional payment based on their office equal to the amount determined for the Vice-President of the National Assembly. The Constitutional Court determines the salary of the Secretary of the Constitutional Court. It is determined proportional to the salary of a judge of the Constitutional Court (Article 71 of the Constitutional Court Act).

Judges of the Constitutional Court are entitled to compensation equal to their proportional salary for the period of their annual leave and for the first 30 days of absence from work due to illness or injury (Article 72 of the Constitutional Court Act).

b) Employment period and social insurance

The time during which judges of the Constitutional Court perform their office is counted as part of their employment period. During the performance of their office as a judge of the Constitutional Court, judges enjoy social insurance in accordance with the social insurance regulations for persons in permanent employment (Article 73 of the Constitutional Court Act).

c) Other personal incomes and reimbursements

Judges of the Constitutional Court are entitled to:

• reimbursement of travel expenses to and from work,
• reimbursement of expenses for business trips (a travel allowance, daily allowance, hotel expenses),
• an allowance for meals during work,
• an annual leave allowance,
• a displacement allowance,
• reimbursement for costs incurred for travelling from the place of their business residence to the place of permanent residence and back,
• reimbursement of expenses for moving from their permanent residence to their business residence and back,
• reimbursement of training costs,
• a long-service bonus,
• a retirement bonus (Article 74.1 of the Constitutional Court Act).

d) Annual leave and other days off

Judges of the Constitutional Court are entitled to annual leave of 40 days (Article 75.1 of the Constitutional Court Act). Judges of the Constitutional Court are entitled to extraordinary paid leave not exceeding 7 days each year for personal reasons (Article 75.2 of the Constitutional Court Act). In exceptional cases judges of the Constitutional Court may be allowed to take extraordinary leave not exceeding 30 days each year (Article 75. 3 of the Constitutional Court Act). The conditions and examples mentioned in the preceding paragraphs are determined by the Constitutional Court (Article 75.4 of the Constitutional Court Act).

e) The rights of judges of the Constitutional Court after the expiration of their term of office

Judges of the Constitutional Court who, until their election as a judge of the Constitutional Court, performed the office of court judge or some other permanent office in a State body, have the right, after the expiration of their office, to return to their previous office, if they fulfill all conditions for performing such office and if, within three months after the expiration of the said office, they notify the competent body of their wish to return to their previous function office (Article 76 of the Constitutional Court Act).

Judges of the Constitutional Court who, until their election as a judge of the Constitutional Court, were employed in a State body, public company or public institution, have the right to return to their job within three months after the expiration of their office, or to another job corresponding to their education and their level of professional skill (Article 77 of the Constitutional Court Act).

Judges of the Constitutional Court whose office has expired and who, for objective reasons, are unable to perform in their previous office, or who cannot find other suitable employment, and have not yet reached the age of retirement according to general regulations, have the right to compensation in the amount of the salary they received as a judge until such time as they find new employment or fulfil] the conditions for retirement according to general regulations, but for no longer than one year after the termination of their office (Article 78.1 of the Constitutional Court Act).

The right to compensation under the preceding paragraph may be prolonged until the conditions for retirement are fulfilled according to general regulations, but for a period of no more than one further year (Article 78.2 of the Constitutional Court Act).

The period from the two preceding paragraphs is included in the employment period of judges of the Constitutional Court whose office has expired. During this period judges enjoy social insurance in accordance with the social insurance regulations for persons in permanent employment. If judges are entitled to annual leave during this period, they also are entitled to an annual leave allowance. They are entitled to a retirement bonus upon retiring (Article 78.3 of the Constitutional Court Act).

f) Wages, allowances, other incomes and reimbursements of other personnel of the Constitutional Court

The regulations which regulate the rights of officials in State bodies are applied mutatis mutandis when determining the rights of the Secretary of the Constitutional Court to receive wages, allowances, other incomes, reimbursements and other rights (Article 79 of the Constitutional Court Act).

The regulations which regulate the rights of officials in State bodies are applied mutatis mutandis when determining the rights of a director of a special service of the Constitutional Court or an adviser of the Constitutional Court to receive a salary, allowances, other incomes, reimbursements and other rights (Article 79.2 of the Constitutional Court Act).

The provisions of regulations concerning employees in State bodies are applied mutatis mutandis when determining the rights of other employees of the Constitutional Court to receive salaries, allowances, other incomes, reimbursements and other rights (Article 79.3 of the Constitutional Court Act).
 

E. The Appointment/Election of Judges to the Constitutional Court

1. APPOINTMENT BASED SYSTEMS (Without the Participation of a Representative Body).

2. ELECTION BASED SYSTEMS: As a rule Parliaments exercise greater influence upon the election of Constitutional Court Judges as compared to the election of judges of ordinary courts.

3. MIXED SYSTEMS (Appointment and Election): With mixed systems, too, the role of the Parliament is prevalent and the role of the executive power is sometimes limited to a mere recruitment of the candidates.

4. PREDETERMINED COMPOSITION FROM HIGH JUDICIAL OFFICIALS: Because the body competent for constitutional/judicial review consists of representatives of the highest national courts neither the Parliament nor the government exert direct influence on the appointment of Constitutional Court Judges.

The independent position of the Constitutional Court is further symbolized by the mode of appointment of the President of the Constitutional Court. Its independence is even greater if the President is appointed by his/her colleagues - Constitutional Court Judges themselves (Italy, Belgium, Cambodia, the FRY, Slovenia, Spain, Tuva/Russia, Yakutia/Russia); otherwise, the President is appointed by a qualified body outside the Constitutional Court (Austria, Bashkiria/Russia, France, Germany, the Kabardino-Balkar Republic/Russia, Karelia/Russia, Komy/Russia, Montenegro/the FRY, Northern Ossetia/Russia, Poland, Serbia/the FRY, the Serbian Republic of Bosnia, Tatarstan/Russia).

Nearly everywhere the qualifications and the required professional experience of Constitutional Court Judges are subject to high standards: the candidates must not only have more than average legal experience but also a high degree of sensibility for the political effects of their decisions. In practice Constitutional Court Judges are selected exclusively from first-class lawyers with many years of experience, such as judges of ordinary courts, attorneys at law, senior government officials, professors of law, or politicians. Sometimes special qualifications are required (Belgium: command of the corresponding national language).
 

F. Public Control/the Public Nature of the Activities of the Constitutional Court

- public hearings;

Save where expressly provided by statute, all Court proceedings are conducted in public and all decisions are delivered in open Court (the public nature of court hearings; the public nature of delivering decisions).These public activities function as a control or supervision of the impartiality and legality of the decision-making process. Beyond that, the Constitution sometimes provides for the so-called legal reservation: the exclusion of the public is reserved in order to protect the interests of a minor or of public morality.

Slovenia: The activities of the Slovenian Constitutional Court are to be conducted in public in accordance with the Constitutional Court Act (Article 3 of the Constitutional Court Act). The principle of the public nature of the activities, declared by this provision, are of general importance concerning all kinds of proceedings; the purpose of the mentioned principle is to ensure a control on the activities of the Court to the parties of the proceedings and also other citizens (the unlimited circle of individuals). The respective function is ensured e.g. also by the statutorial provision on public hearings before the Constitutional Court (Article 35 and 36 of the Constitutional Court Act).The Constitutional Court may exclude the public from a hearing or part thereof on the grounds of protecting public morals, public order, national security, the right to privacy and personal rights (Articles 37 and 38 of the Constitutional Court Act). The public nature of the activities of the Slovenian Constitutional Court results also from some internal regulations or systems adopted by the Constitutional Court¹²².

- the publication of Court decisions in official gazettes, official digests, as well as in legal journals;

Slovenia: Providing information to the public concerning decisions of the Constitutional Court is, moreover, one of the functions, following the principle of the public nature of the activities of the Constitutional Court, set forth in laws and in other regulations¹²³. The Constitutional Court applies this principle by publishing its decisions in official publications (Official Gazettes, see Article 42 of the Constitutional Court Act and Article 46 of, the Rules of Procedure of the Constitutional Court) and by allowing access to information on its decisions in its database.

Slovenian constitutional case-law has been published and offered to interested parties:

- in Odlodbe in sklepi Ustavnega sodisea (Official Digest of the Constitutional Court; Slovenian full-text version, including dissenting/concurring opinions, and English abstracts);

- in the Pravna Praksa (Legal Practice Journal; Slovenian abstracts, with the full-text version of the dissentinglconcurring opinions);

- since 1 January, 1987, via the on-line STAIRS database (Siovenian full text version; English full-text version since 1992); for this purpose a special English-Siovenian glossary was created containing terms on constitutional law;

- the first original CD-ROM containing the Slovenian Constitutional Case-Law (in Siovenian) was issued in May 1998;

- since 1992 in the Bulletin on Constitutional Case Law of the Venice Commission of the Council of Europe (including English and French summaries of the most important current decisions), as well as in the CODICES database issued on CD-ROM (Siovenian and English fyii-text versions and summaries in English and French);

- since August 1995 on the lnternet (Siovenian constitutional case law of 1994, 1995, 1996 and partially 1997 as well as some important cases prepared for the Bulletin of the Venice Commission from 1992, full text in Slovenian as well as in English "http://www.sigov.si/us/eus-ds.html"); since 1 January, 1997, also on a mirror site in the USA: "http://www.iaw.vill.edu/us/eus-ds.html";

- since 1995 some important cases in English full-text versions in the East European Case Reporter on Constitutional Law, published by BookWorld Publications, The Netherlands. The East European Case Reporter is available also on the lnternet (http://www.bwp-mediagroup.com/bookworld/eecrcl.htm).

- the circulation of information through several computerised information systems;

Legal information on constitutional review matters as supported by different means of communication or media, taking into consideration the principle of the public nature of the activities of any Constitutional Court, circulate from the Constitutional Court as a decision issuer, to the public, the potential petitioners before the Constitutional Court, who receive information which may motivate their new petitions. This stream of information constitutes a certain procedural circle due to the nature of proceedings before any Constitutional Court, which are in principle proposed proceedings (jurisdiccion voluntariea): only a permanent inflow of petitions to the Constitutional Court actually justifies the existence, function and activities of the Constitutional Court.

Slovenia: The initial purpose of the legal databases of the Slovenian Constitutional Court was to provide more flexible processing of legal information, primarily constitutional case-law as a support to the Constitutional Court in its decision-making processes. The activities of the Constitutional Court are conducted in public (Article 3 of the Constitutional Court Act, Official Gazette RS, No. 15/94; Article 5 and Articles 53 to 55 of the Rules of Procedure of the Constitutional Court, Official Gazette RS, No. 49/98). Therefore, the corresponding databases were not created for internal users only (judges and legal advisers of the Court); from the very beginning they were intended for external users of legal information concerned with practice and theory related to constitutional review.