Constitutional courts in search for attention to be heard – also with the perspective of the Slovenian Constitutional Court

| EUdentity 2019

with Nincs hozzászólás
Mr. Rajko Knez
President of the Constitutional Court of the Republic of Slovenia

I. Introduction

The system of the protection of rights, i.e. national, international, and European rights in Europe is rather complex. The reasons for that are numerous. On the one side, national judicial systems are diversely regulated, and procedural sovereignty is preserved to a large extent. On the other side, rules stemming from the international and European levels are influencing the national legal orders. Therefore, national judicial systems, which are independent and autonomous, need to take that into account. In and of itself, this should not be a problem if international and European rules did not require priority application, meaning that national rules have to give them precedence. And even this would not be a problem, at least not a substantial one, if the basic legal frameworks that stem from the highest national acts – which in most cases are constitutions – were not in a certain way the door through which international and European rules enter the national legal systems. These doors open as soon as a State accesses to a certain international or European act (by a signature, and later on by a ratification) and even this – at this stage – should not cause problems.[1] In other words, we let a “guest” in our “house” because we share his viewpoints and attitude. We let him in because we trust him. The problems emerge when the viewpoints of the guest are not congruent with ours, when we have doubts, or when the guest is not acting in accordance with our expectations.

The present article is not typical, in fact it is far from the usual articles in which European constitutionality issues are analysed – not only is my style different, also the story itself is different. I will try to present a picture in which we can find the elements of the Europe of today and today’s relations between the European courts, on the one side, and national courts, on the other. In this presentation, the protagonists are two guests who are welcomed by the master of the house and by family members. The first guest is the Court of Justice of the European Union (the CJEU), the second guest is the European Court for Human Rights (the ECtHR), the master of the house is an individual constitutional court (the CC), and the family members are the national regular courts. I am fully aware that this approach may appear striking. Even the starting point is questionable – namely, who really the guest is – is a Member State a guest in an international organisation or vice versa? I am not at all going to address this question and the readers are asked to not question this starting point either. It is irrelevant for the message that I would like to convey in the last part of this article. The main idea is to come to a conclusion as to how national constitutional courts can be involved in the search for the core values that stretch all the way from the national identity, on the one hand, to the core European values, on the other.

The topic mentioned above will be presented in the first part of this article that follows this short introduction. In the second part of the article, I will express some reflections regarding the mentioned relations in the Europe of today.

Ön itt egy előadásrészletet talál, ami a 2019. március 8-án, Constitutional EUdentity 2019 címmel megrendezett konferencián
hangzott el. A teljes előadás szövegét az Alkotmánybírósági Szemle 2020. évi különszámában nyomtatott változatában olvashatja el. Előfizetni a folyóiratra itt tud.

[1] This is how the States accessed to the European Convention on Human Rights (the ECHR), the Treaty on European Union (the TEU), and the Treaty of the Functioning of the European Union (the TFEU).