Legal Power of the Constitutional Court Rulings in Regard to Time
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Abstract
In this article one examines how do the rulings of the Constitutional Court of the Republic of Lithuania, whereby a legal act is recognised as the one which is in conflict with the Constitution (or a law), act in regard to time.
Various European countries use different ways to solve this issue. Legal power and consequences of the Constitutional Court rulings by which one holds that a legal act is non–constitutional in regard of time, as well as a need to respectively correct such consequences basically depends upon which of the two doctrinal theories (invalidity or repealing), interpreting the notion of non–constitutionally in different ways, the model of constitutional justice of particular country is based.
In the article the author reviews the basic models of regulating consequences caused by the decisions of constitutional justice institutions and, on the basis of the jurisprudence of the Constitutional Court of the Republic of Lithuania as well as practice of Lithuanian courts, she analyses whether the power of rulings of the Constitutional Court of the Republic of Lithuania is directed solely to the future (ex nunc), or whether the rulings are valid retroactively (ex tunc) in certain situations thus influencing legal relations which had aroused prior to the moment of coming into force of the said decisions.
It is stressed in this article that although the control over the constitutionality in Lithuania is based on the concept of repealing, this does not deny the possibility of retroactive (ex tunc) validity of the Constitutional Court rulings. One may notice that Paragraph 1 of Article 107 of the Constitution, under which a legal act may not be applied from the day of official promulgation of the decision of the Constitutional Court that it is in conflict with the Constitution, which is often assessed in legal literature as the one which means that the power of the Constitutional Court rulings is directed to the future, and that they are effective ex nunc, in fact is more alike to the Italian regulation considered to be under ex tunc model rather than the classic Austrian ex nunc model, wherein the common rule exists that the annulled legal act continues to be applied in regard to legal relations which originated prior to its annulment. As distinct from Austria, where the Constitutional Court rulings are effective strictly ex nunc, in Lithuania a legal act, which has been recognised as being in conflict with the Constitution, under Paragraph 1 of Article 107 of the Constitution may never be applied not only in the case the investigating court of which applied to the Constitutional Court, but in any parallel case. Therefore, in regard to the cases related to legal relations which originated prior to the moment of coming into effect of the Constitutional Court ruling, the ruling applies ex tunc, as they must be solved by taking account of the new legal situation.
In this article the author also analyses other cases of retroactive effect of the Constitutional Court rulings as well. Alongside, attention is drawn to the fact that the Constitutional Court, having used the possibilities provided for by the concept of repealing to “model” consequences caused by its rulings and having evaluated the necessity to guarantee justice and equality of persons which originates in certain cases, in some cases could grant such a retroactive power to its ruling, which would provide an opportunity to correct legal consequences caused by a non–constitutional legal act.
Various European countries use different ways to solve this issue. Legal power and consequences of the Constitutional Court rulings by which one holds that a legal act is non–constitutional in regard of time, as well as a need to respectively correct such consequences basically depends upon which of the two doctrinal theories (invalidity or repealing), interpreting the notion of non–constitutionally in different ways, the model of constitutional justice of particular country is based.
In the article the author reviews the basic models of regulating consequences caused by the decisions of constitutional justice institutions and, on the basis of the jurisprudence of the Constitutional Court of the Republic of Lithuania as well as practice of Lithuanian courts, she analyses whether the power of rulings of the Constitutional Court of the Republic of Lithuania is directed solely to the future (ex nunc), or whether the rulings are valid retroactively (ex tunc) in certain situations thus influencing legal relations which had aroused prior to the moment of coming into force of the said decisions.
It is stressed in this article that although the control over the constitutionality in Lithuania is based on the concept of repealing, this does not deny the possibility of retroactive (ex tunc) validity of the Constitutional Court rulings. One may notice that Paragraph 1 of Article 107 of the Constitution, under which a legal act may not be applied from the day of official promulgation of the decision of the Constitutional Court that it is in conflict with the Constitution, which is often assessed in legal literature as the one which means that the power of the Constitutional Court rulings is directed to the future, and that they are effective ex nunc, in fact is more alike to the Italian regulation considered to be under ex tunc model rather than the classic Austrian ex nunc model, wherein the common rule exists that the annulled legal act continues to be applied in regard to legal relations which originated prior to its annulment. As distinct from Austria, where the Constitutional Court rulings are effective strictly ex nunc, in Lithuania a legal act, which has been recognised as being in conflict with the Constitution, under Paragraph 1 of Article 107 of the Constitution may never be applied not only in the case the investigating court of which applied to the Constitutional Court, but in any parallel case. Therefore, in regard to the cases related to legal relations which originated prior to the moment of coming into effect of the Constitutional Court ruling, the ruling applies ex tunc, as they must be solved by taking account of the new legal situation.
In this article the author also analyses other cases of retroactive effect of the Constitutional Court rulings as well. Alongside, attention is drawn to the fact that the Constitutional Court, having used the possibilities provided for by the concept of repealing to “model” consequences caused by its rulings and having evaluated the necessity to guarantee justice and equality of persons which originates in certain cases, in some cases could grant such a retroactive power to its ruling, which would provide an opportunity to correct legal consequences caused by a non–constitutional legal act.
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Please see Copyright and Licence Agreement for further details.
