The Legal Prospective Force of Constitutional Courts Decisions: Reflections from the Constitutional Jurisprudence of Kosovo and Beyond

By Morina, Visar | Nottingham Law Journal, Annual 2016 | Go to article overview

The Legal Prospective Force of Constitutional Courts Decisions: Reflections from the Constitutional Jurisprudence of Kosovo and Beyond


Morina, Visar, Nottingham Law Journal


INTRODUCTION

Constitutions often state that decisions of constitutional courts are legally binding for everyone. However, a number of questions lurk behind the general proposition of their binding effect, which this paper seeks to examine from a doctrinal, comparative and jurisprudential perspective. Sometimes it is unclear to what extent constitutional court decisions are legally binding prospectively, and to what degree such decisions bind the legislature or judiciary in future undertakings. This in parallel goes with the question as to whether constitutional courts decisions attain the status of a precedent in a civil law system by directing institutional behaviours in the centralized systems of constitutional review. This article analyses the nature of the legally-binding effects of constitutional court decisions and examines their prospective legal force. The paper focuses on the case of the Kosovo Constitutional Court (hereinafter as "KCC"), whose decisions over the past few years not only have had a profound impact upon the functioning of state institutions but have occasionally revealed ambiguity and constitutional uncertainty regarding the margins of legal abidingness. The paper initially outlines the characteristics of constitutional review in Kosovo and continues with a comparative analysis, particularly focussed on Germany, regarding the binding nature of constitutional court decisions. The paper then seeks to analyse the parameters of the prospective force of these decisions, and whether and to what extent such courts are entitled to deviate from their prior rulings. Finally, the paper discusses a controversial issue in regards to which parts of a judgment are considered legally binding in a constitutional jurisprudence. By supporting the conception of the prospective force of constitutional court decisions, I argue that in centralized systems of constitutional review it is important that lower courts and other public authorities follow decisions of constitutional courts in the form of legally-binding precedent when deciding subsequent cases with similar issues or facts. Although it is generally uncommon in civil law systems for the courts to be bound by judicial precedents due to the traditional accountability of judges to the law, it will be argued that the precedential nature of constitutional court decisions increases the degree of legal predictability and stability and ensures the so-called constant jurisprudence in the process of resolution of judicial cases.

The principal features of the constitutional review in Kosovo: an overview

The basics of constitutional review in post-status Kosovo have been laid down by the Kosovo Constitution, which is the most recent national constitution to have been adopted in Europe. (1) What is striking to observe is that the Constitution provides for a centralised-type of constitutional review where the powers of constitutional review have been allocated to a nine-member Constitutional Court that operates outside the court system in Kosovo. (2) The competences of the Court are broad but in many ways similar to other European constitutional courts. Key among them are the Court's powers to nullify parliamentary enacted legislation when declared incompliant with the Constitution and the power to assess whether a municipal statute, a proposed referendum or a draft constitutional amendment is compatible with the Constitution. (3) Individuals are also entitled to refer violations by public authorities of their individual rights and freedoms guaranteed by the Constitution. Such alleged violations only become ripe for constitutional review after exhaustion of all legal remedies provided by law. (4) Not surprisingly, the largest number of constitutional referrals to the Court are filed by individuals. According to last year annual report of the KCC, 161 out of 187 total referrals or (86.1%) were filed by individuals. (5) This speaks of the growing importance of this mechanism regarding the protection of constitutional rights. …

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