U-I-227/14, Up-790/14

Reference no.:
U-I-227/14, Up-790/14
Judicial review before an independent and impartial court constituted by law must be ensured in accordance with the first paragraph of Article 23 of the Constitution with regard to an individual act by which the rights of an individual are decided on. Judicial protection of human rights and fundamental freedoms is in particular and expressly guaranteed by the fourth paragraph of Article 15 of the Constitution. It follows from these constitutional provisions that the legislature must determine the competent courts, the procedure for their decision-making, and their competences when deciding on the rights or obligations of individuals. Judicial protection must be effective, meaning that the rules regulating the judicial procedure must not ensure merely a formal decision, i.e. a decision that only seems to be based on the merits of the claim. One of the essential aspects of the effectiveness of the right to judicial protection is to ensure appropriate procedural rules that prevent, while proceedings before a court are still pending, situations in which judicial protection cannot achieve its purpose.
The statutory regulation in the Deputies Act regarding a decision on the termination of office of a deputy does not ensure effective judicial protection and in fact denies such right. There is also no other law ensuring effective judicial protection in such disputes. This manner of statutory regulation entails a hollowing out of the right to judicial protection determined by the first paragraph of Article 23 of the Constitution. Whenever the assessed regulation entails an interference with a human right so significant that it is considered a hollowing out of the human right in question, a review of the admissibility of the interference does not require weighing the proportionality between the interference with the human right, on the one hand, and the possible constitutionally admissible objective, on the other. Namely, no matter how admissible an objective is, it cannot justify the denial of the right to judicial protection.
The second paragraph of Article 82 of the Constitution allows for the possibility of a law determining who may not be elected deputy (i.e. ineligibility). The legislature refrained from regulating this issue, therefore it cannot, by means of interpretation, extend the meaning of the statutory provision (indisputably) regulating the early termination of office of a deputy on grounds that only arose during his or her term of office in such a manner so as to allow an interference with the right to vote also on grounds that had already arisen in the candidature procedure. Such an interpretation would entail the covert introduction of rules that in reality would have the effect of creating ineligibility. Ineligibility is an institute of electoral law of such importance and also in itself such a severe interference with the passive right to vote that it should be expressly and clearly regulated by law. Consequently, the interpretation of the National Assembly in accordance with which the third indent of the first paragraph of Article 9 of the Deputies Act allows for the termination of office of a deputy not only in cases where the grounds for such arose during the term of office, but also in cases where they already existed and were known during the procedure for the confirmation of candidacies, entails an inadmissible interference with the right to exercise office acquired in elections in conformity with the second paragraph of Article 43 of the Constitution.
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Type of procedure:
review of constitutionality and legality of regulations and other general acts constitutional complaint
Type of act:
statute individual act
Date of application:
Date of decision:
Type of decision adopted:
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute annulment or annulment ab initio