Abrogation of the institute of the authentic interpretation of a law

In case No. U-I-462/18 (Decision dated 3 June 2021, Official Gazette RS, No. 105/21), the Constitutional Court decided on a request of the State Prosecutor General for a review of the constitutionality of the fourth paragraph of Article 153 and the second paragraph of Article 154 of the Criminal Procedure Act (which were no longer in force at the time of the decision-making of the Constitutional Court), according to which material obtained through covert investigative measures was destroyed under the supervision of the investigating judge if the state prosecutor declared that he or she would not initiate criminal proceedings against the suspect or if he or she did not make such a declaration within two years after the covert investigative measures ceased to be carried out. The applicant alleged, inter alia, that the challenged statutory regulation disproportionally hindered criminal prosecution and thus the protection of the rights of victims of criminal offences. Since the legislature adopted an authentic interpretation of the challenged statutory provisions and the Constitutional Court was faced with the question of the conformity of the institute of an authentic interpretation with the Constitution, it first assessed the constitutional conformity of the provisions of the Rules of Procedure of the National Assembly that regulate the authentic interpretation of a law.

According to established constitutional case law, the authentic interpretation of a regulation forms an integral part of such regulation from the moment of its entry into force, irrespective of its subsequent adoption. This entails that the authentic interpretation is binding or that the regulation must be regarded as having the meaning given to it by the authentic interpretation and that the authentic interpretation also has a retroactive (ex tunc) effect. An authentic interpretation may, however, not amend the law, which means that it may not give a statutory provision content that it did not have upon its entry into force. Amendments of laws can namely only be adopted through the constitutionally determined legislative procedure. If an authentic interpretation thus gives a law content that, at the time of its entry into force, could not be deduced from the statutory text by established methods of interpretation, there is a violation of the constitutionally prescribed legislative procedure.

The Constitutional Court held that the institute of the authentic interpretation of a law, as such is regulated by the provisions of the Rules of Procedure of the National Assembly, is inconsistent with the principle of the separation of powers (the second paragraph of Article 3 of the Constitution) and the principle of the independence of judges (Article 125 of the Constitution). The provisions of the Rules of Procedure namely give the legislative branch the possibility to interpret a law authoritatively after it has been adopted, with retroactive effect (ex tunc). This allows it to influence decisions on the application of the law to individual legal subjects in concrete cases. This influence extends not only to all those legal relationships that have not yet been decided on by the courts when the authentic interpretation comes into force; by means of an authentic interpretation the legislature can also achieve that court decisions that have already been issued are changed. This enables the legislature to influence ex post the outcome of individual court proceedings and thus interfere with the constitutional competence of the judiciary and the executive branch of power. In view of the established inconsistency, the Constitutional Court abrogated the provisions of the Rules of Procedure of the National Assembly that regulate the authentic interpretation of a law. Consequently, it found that the concrete authentic interpretation of the challenged provisions of the Criminal Procedure Act was also inconsistent with the Constitution.

The Constitutional Court then also assessed the constitutional conformity of the challenged provisions of the Criminal Procedure Act in their wording before the entry into force of the authentic interpretation thereof. It explained that the right to privacy of individuals is not only interfered with by the implementation of covert investigative measures, but also by the retention of data obtained through these measures. As the retention of these data may, after a certain period of time, become an excessive interference with privacy and thus a violation of the right to privacy, the law must set time limits as regards the retention thereof in a clear and predictable way in order to prevent such violations. On the other hand, the statutory regulation of the collection and retention of evidence must not be so restrictive as to disproportionately hinder criminal prosecution and thereby interfere with the right of others to security.

In the view of the Constitutional Court, the challenged statutory regulation could not be reproached for having provided an excessively short retention period of data obtained through covert investigative measures in all cases. The law should, however, adequately address cases in which the public prosecutor does not, for justified reasons, file a request to initiate criminal proceedings within two years after these measures have ceased to be carried out. In the Constitutional Court’s view, since the law did not provide a special regulation for such cases, it disproportionately interfered with the right of individuals to security determined by Article 34 of the Constitution. As the challenged regulation ceased to be in force during the proceedings before the Constitutional Court, the Constitutional Court merely found that it was inconsistent with the Constitution.