Dissenting/Concurring Opinion

There is an essential difference between decisions issued by constitutional courts in Europe and those of the Anglo-American type. The former are issued "impersonally" by the Court as a whole, whereas in the latter, individual judges make their personal contributions. In the first case the decision itself does not show whether it was adopted unanimously or by a majority of votes; moreover, it is absolutely not clear in any decision the way an individual judge actually voted. In the second case, however, it is not only evident when a majority or unanimous decision was adopted and how individual judges voted, and the judges who do not agree with the majority add their interpretation of the decision in either:

- a concurring opinion, when a judge agrees with the ruling but differs as to its reasoning, or
- a dissenting opinion, when a judge objects to the ruling itself.

At first the dissenting/concurring opinion was recognised only in the USA as well as in other Common Law based or American tradition based countries of the British Commonwealth, Central and South America, Scandinavia and Japan. After many theoretical and political objections the dissenting/concurring opinion became gradually accepted in the countries with Continental (European) legal systems. Although individual European systems of constitutional/judicial review departed from the decision-making mode characteristic of the Austrian model, they remained half-way to an American type of decision that introduced the dissenting/concurring opinion into Constitutional Court decisions.

As far as publication is concerned, a distinction may be made between two types of dissenting/concurring opinions:
- open, published together with the respective decision;
- anonymous, only added in writing to the internal part of the case.

Some constitutional judicial review systems do not accept dissenting/concurring opinions but keep the voting results secret, without publishing either the voting results or the names of judges²⁰⁴. The dissenting/concurring opinion is known above all in Croatia²⁰⁵, Germany²⁰⁶, Greece²⁰⁷, Hungary²⁰⁸, Portugal²⁰⁹, Slovenia²¹⁰, Chile²¹¹ and Spain²¹². In Portugal, however, the publication of votes including names is a matter of judicial tradition because the decisions issued by the Constitutional Court strictly include names also. On the other hand, much attention was aroused by the frequent occurrence of the dissenting/concurring opinion in Spain, where this practice appeared in both forms (dissenting opinion, concurring opinion). The dissenting/concurring opinion is, however, not recognised by the Court of Justice of the European Community in Luxembourg, but was recognised by the European Commission²¹³ and is recognised by the European Court of Human Rights in Strasbourg²¹⁴.

Temporary Orders

Pursuant to the regulation in force, a temporary order may refer to both a general and an individual act. It could be applied in the proceedings of an abstract review, a constitutional complaint as well as impeachment. The Constitutional Court considers this type of decision-making to be its own discretionary right. The disputed provision formally still remains in force, but it is prohibited to use it. Accordingly, the temporary order (because of the temporary situation as well as due to legal security) cannot be legally implemented by itself, unless the Constitutional Court itself specifies the respective implementation mode.

The Constitutional Court can adopt a temporary order either with a special ruling (if the proceedings is initiated on the request of a privileged applicant) or with a ruling on a general subject. If the Constitutional Court adopts a special ruling on a temporary order, but the constitutional proceedings are subsequently discontinued, the Constitutional Court, by issuing a ruling that discontinues the proceedings, explicitly orders that the temporary order itself is no longer in force either. Otherwise the term of the temporary order is considered to expire according to the final Court decision.

Whether the applicant's proposal for a temporary order is accepted or refused depends on the decision of the Constitutional Court. The Court weighs whether not-easily-reparable damages are probable, which could justify the temporary order. On the other hand, it may also weigh the possible damages following the adoption of the temporary order. Accordingly, the Court decides not to adopt the temporary order if it is of the opinion that the damages resulting from the temporary order might exceed the risk of an unconstitutional interpretation of the disputed legal provision in a concrete case. The Constitutional Court may refuse the applicant's request for a temporary order with a special ruling, but may do it in a ruling on the non-acceptance of a popular complaint.

Suspending the implementation of an act can be total or only partial provided that the implementation thereof could involve not-easily-reparable consequences. If during the term of the temporary order the consequences of the respective ruling are interpreted in different ways, the Constitutional Court may, by a special decision, specify the manner its decision must be implemented.

With reference to the Slovenian system, a temporary order is not limited in time, as in the German constitutional review system (Para. 6 of Article 32 of the Federal Constitutional Court Act/BverfGG). The ultimate limit of its duration extends to the issuance of the relevant final Constitutional Court decision. However, the Constitutional Court is free to order the termination of its validity at any time during its term.

Concerning temporary orders in the Slovenian system, the Constitutional Court decision may be as follows:

1. The Abstract Review

- An abstract review can result in the possible stay of the implementation of a general act pending a final decision.

2. The Constitutional Complaint

- A ruling on the suspension of the implementation of an individual act which is the subject of a constitutional complaint can be issued while deciding on a constitutional complaint.

- A ruling on the possible suspension of the implementation of a general act pending a final decision can be issued while deciding on a constitutional complaint. The above mentioned possibility of a temporary order parallels the temporary order foreseen in the abstract review proceedings.

The Constitutional Court may decide on a temporary order on a general act only in a plenary session, not also in an a camera session.

The Constitutional Court decides on temporary orders in proceedings examining a constitutional complaint and/or may suspend the implementation of a disputed individual act only if the constitutional complaint is accepted. If procedural prerequisites are lacking and/or if the constitutional complaint is not accepted, the Constitutional Court does not decide on the applicant's request for a temporary order.

3. Other (Specific) Proceedings

- The court may issue a decision suspending the President/Prime Minister/Ministers from office - while deciding on impeachment. The Constitutional Court may decide for such a temporary prohibition by a two-thirds majority of votes of all judges.
 

The Character of the Decisions of Constitutional Courts and their Publication

Contents and effects of decisions

1. Contents

1.1. Abstract Review

The following forms are possible, particularly concerning the Slovenian system of constitutional review:

- The abrogation (ex nunc) in whole or in part of unconstitutional statutes is effective immediately or within such a period of time, not exceeding one year, as specified by the Constitutional Court.

The regulation in force allows to the Constitutional Court to abrogate a general act with deferred effect, i.e. the respective decision comes into effect on the expiry of the period specified by the Constitutional Court. In this case, too, the Constitutional Court evaluates whether the specific circumstances of the respective case justify such a measure. On one hand, the reasons for an abrogation with deferred effect are opposite to the reasons for a temporary order: the absence of the direct risk that the further implementation of the general act could cause considerable or even irreparable damage. On the other hand, however, the Constitutional Court may, as a rule, impose this measure whenever it chooses to avoid a legal gap resulting from abrogation when it presumes that the legislature would be able to change the unconstitutional or unlawful provision in the respective period and to bring it into conformity with the Court's decision.

Beside deciding upon constitutional complaints regarding violations of human rights, the most important new element is that the Slovenian Constitutional Court is empowered to abrogate (ex nunc) a statute directly. Due to the Principle of the Unity of Powers and the Supremacy of the Parliament, the former function of the Constitutional Court focused on assessing the unconstitutionality of a statute. This changed into an active relationship not only involving the abrogation of statutes, but also offering guidance to the legislature for the creation of Law. However, the Constitutional Court agreed to allow the legislature the opportunity to review disputable regulations within a due period of time, following the guidelines of the Constitutional Court in a specific decision.

In this way the Court assumed the role of a "negative legislature". In a period of transition the legislature is not always able to follow developments nor to impose standards for all shades of the legal system and its institutions. The so-called interpretive decisions issued by the Constitutional Court and the appellate decisions include certain instructions from the Constitutional Court to the Legislature on how to settle certain questions or specific issues. However, in compliance with the Principle of Judicial Self-Restraint, a clear limit has been imposed on the Slovenian Constitutional Court by the Court itself, which indicates that the Constitutional Court has already been creating legal rule (usually reserved for the Legislature). On the other hand, there is the question whether the Constitutional Court actually creates the law, because it also involves the review of legislative activity. In any case, the Legislature cannot avoid the existence of contemporary Slovenian Constitutional Case-Law in its activity.

- The abrogation (ab initio/ex tunc or prospectively/ex nunc) of other unconstitutional or unlawful executive regulations and other general acts.

- The declaration of the unconstitutionality and illegality of statutes, other general acts or general acts for the exercise of public powers which were made to conform with the Constitution and statute or which cease to be valid if the consequences of their unconstitutionality or illegality are not eliminated.

- The declaration of the unconstitutionality or illegality of a statute, other general act or a general act for the exercise of public powers because a certain matter which it should have regulated was not regulated or is regulated in a manner which makes it impossible to be abrogated retroactively (ex tunc) or prospectively (ex nunc). The Legislature or body which issued such unconstitutional or illegal general act must abolish the ascertained unconstitutionality or illegality within the period set by the Constitutional Court. The Constitutional Court Act has not foreseen any "sanction" if the Legislature fails to bring the disputed provision into conformity with the Constitution following the Court decision. The Legislature is bound only by the general provision on legally binding decisions of the Constitutional Court. The disputed regulation remains in force, and this has been confirmed by constitutional case-law.

- Any affected person is entitled, based on a Constitutional Court decision regarding the constitutional review of general acts, to request an amendment or retroactive abrogation (ex tunc) of an individual act or the elimination of detrimental consequences or even claim damages within three months from the day of the publication of a Constitutional Court decision.

1.2. Constitutional Complaint

The following results are possible:

- The abrogation, retroactive (ex tunc) or prospective (ex nunc), of an individual act and return of the case to the empowered body.

- The abrogation, retroactive (ex tunc) or prospective (ex nunc), of a general act (while deciding on a constitutional complaint).

- The final decision on a contested human right or freedom based on a constitutional complaint (entailing the replacement of the disputed individual act by the Court decision), in the case of a retroactive abrogation (ex tunc) of an individual act, if such proceedings is necessary in order to eliminate consequences that have already occurred on the basis of the abrogated individual act, or if such is the nature of the constitutional right or freedom, and if a decision can be reached on the basis of the information in the document. At first the above power of the Constitutional Court gave rise to a discussion of whether in this case the Constitutional Court represented an instance above the ordinary courts (especially above the Supreme Court). Present constitutional case-law, however, proves that the Constitutional Court is limited to the evaluation of pure constitutional issues, e.g. to the strict evaluation of breaches of certain constitutional rights.

1.3. Other (Specific) Proceedings

Other proceedings, mainly adopted by systems of constitutional review, can result in the following:

• Stating the empowered body in jurisdictional disputes.
• Finding a proposal for impeachment to be unfounded.
• Deciding on the grounds for impeachment, deciding on the suspension of the President's/Prime Minister's/Minister’s office.
• The annulment of an unconstitutional political party act or activity, or an order requiring a deletion from the register of political parties.
• The annulment of a decision of the National Assembly, or a decision on a representative's election.
• An obligatory opinion on the conformity of international treaties with the Constitution.
• A declaration of the unconstitutionality of a request concerning a call for a referendum.

If necessary, the Court specifies which body must implement its decisions (regarding the constitutional review of general acts), and in what manner. The Constitutional Court may order the temporary suspension of the implementation of individual acts, based on a general act abrogated by the Court decision.

The replacement of a disputed individual act by a Court decision is implemented by the body empowered for the implementation of the individual act retroactively abrogated (ex tunc) by the Constitutional Court and replaced by the decision of the same. If there is no such empowered body according to the current regulations, the Constitutional Court appoints one.

3. Effects

Under the main accepted principle of constitutional review systems, the decisions of the Constitutional Court are binding and produce effects erga omnes.

Exceptions to this rule are constitutional complaints and jurisdictional disputes where decisions have effect only inter partes, but even here effects are felt erga omnes, when the Constitutional Court acts ex officio.

Rehearing of Proceedings Before the Constitutional Court

The decisions of the Constitutional Court are binding (e.g. Para. 3 of Article 1 of the Slovenian Constitutional Court Act, Official Gazette RS, No. 15/94) and executable (Para. 2 of Article 40 of the Slovenian Constitutional Court Act). The rules concerning the proceedings before the Constitutional Court do not include any exceptional legal remedy against a Constitutional Court decision, which also includes any rehearing or, in general, repetition of proceedings concerning an already adjudicated constitutional dispute.

The problem of rehearing proceedings was discussed in constitutional theory and practice in the eighties²¹⁵. The discussions looked for inspiration in foreign systems, however not in the American system, which includes accessory constitutional review in ordinary cases with an in inter partes judgment effect of the judgment, but first of all in the Austrian and Italian systems²¹⁶; even though also in these systems the rehearing of proceedings is excluded. Therefore, there were some proposals²¹⁷ concerning the subsidiary implementation of rules of other proceedings for the rehearing of proceedings before the Constitutional Court following the example of the regulation governing rehearings in administrative disputes: i.e. on the grounds of a worse violation occurring during the proceedings, or on the grounds of a particular criminal offence, when a party uncovers new facts or they have an opportunity to be able to submit new evidence with which a case may have been adjudicated more advantageously for the party if such facts or evidence had been submitted in the previous proceedings. First of all, a rehearing in a constitutional dispute (taking into consideration its particularities, because the object of adjudication in such a dispute is a normative act) would be reasonable if after the issuance of the Constitutional Court decision, new facts or evidence were uncovered which, if they had been known and applied previously, would have caused a different Constitutional Court decision. The rehearing of proceedings would be reasonable in all kinds of Constitutional Court decisions, except when the Constitutional Court by its previous decision has abrogated or annulled a particular normative act²¹⁸. If the rehearing was implementable in the case of such a normative act, and the previous Constitutional Court decision on an abrogation or annulment were abolished, the Constitutional Court would without competency, in fact, enter into the normative function of the legislature or other author of normative acts which determine the legal order in a particular field.

Concerning the conditions or reasons for rehearing, the same reasons may be applied as for the rehearing of an administrative dispute. In view of what has been explained above, in a constitutional dispute it would not be reasonable in a rehearing to abolish a previous Constitutional Court decision and to replace such a decision with a new one on the grounds that in the confrontation of a normative act with a certain constitutional or statutorial provision, such a provision had not been correctly interpreted and was mistakenly legally implemented. However, this does not mean that the Constitutional Court may not even without a formally held rehearing proceeding following a request of a party in the same case, and in a special proceeding, revise the Court's previous decision. In the constitutional case-law of the former Yugoslavia, in some cases a case before the Constitutional Court was reheard, the previous Constitutional Court decision was overturned and replaced by a new one²¹⁹. The rehearing of a Constitutional Court case is not a rehearing in the classical judicial sense (despite the subsidiary implementation of rules concerning judicial proceedings). As a matter of fact, it is a special kind of rehearing of Constitutional Court proceedings that may result in overturning previous Constitutional Court decision and its replacement with a different decision.

Properly speaking, the Constitutional Court is internally procedurally bound by the text of its decision and/or with the "irrevocability" of the decision²²⁰. Such irrevocability means that the Constitutional Court may not abrogate or change a decision which has already been issued. "Any promulgated or issued decision is no longer in the disposition of the Constitutional Court"²²¹.

Consequently, the decisions of the Constitutional Court are indisputable for the parties. However, as an exception it is necessary to consider the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, which gives individuals the right to the so-called individual complaint against a national final Constitutional Court decision²²². Because there is no (national) legal remedy against Constitutional Court decisions, they become formally final when issued.

In a majority of Constitutional Court systems, Constitutional Court decisions are declared final, sometimes they are explicitly defined as irrevocable²²³. In this way, constitutional courts are prevented from changing their decisions after their enforcement, with the exception of corrections of obvious incorrectness²²⁴. So, constitutional courts are completely internally-procedurally bound by their own decisions.

However, the generally accepted principle of the irrevocability of Constitutional Court decisions may be loosened or even partially waived by particular systems. A certain "relaxation" of the above principle means that such systems authorise constitutional courts to interpret their own decisions²²⁵. Such systems render a relative touch to the finality of Constitutional Court decisions²²⁶.

On the other hand, the Belorussian, Lithuanian and Ukrainian systems authorise the Constitutional Court to change its decision ex officio subsequently, without any external request or petition²²⁷. The Belorussian and Lithuanian systems require that some circumstances become known which had not been known by the Constitutional Court when issuing its decision, or that the constitutional provision which was the basis for the Constitutional Court decision was changed²²⁸. The Lithuanian system requires that in such cases the Constitutional Court have an appropriate new decision²²⁹. Under the Ukrainian system the required condition is that new circumstances are discovered connected with the case which were not previously discussed and existed at the time the case was discussed and decided²³⁰. In addition, the Belorussian Constitutional Court is empowered to intervene in such cases ex officio²³¹. The Lithuanian Constitutional Court, however, may react only on the basis of an "external" request²³². Otherwise, the mentioned systems do not determine a legal remedy against Constitutional Court decisions. Therefore, Constitutional Court decisions are indisputable. An exception is the suspensive veto against a Constitutional Court decision which may be submitted by the President of State and the President of the Parliament, as determined by the Constitution of Kazakhstan²³³.