Effects of the Decisions of the Constitutional Courts

The Venice Commission did not explicitly take into consideration the possibility of leaving to the states the choice between strong and weak systems of judicial review. In some systems, courts have a general authority to interpret the constitution.

In fact, the preference is to attribute generally binding effects to the decisions of courts that imply the nullification of unconstitutional legislative provisions. The entrustment to the courts of the mere competence of providing only an official interpretation of the constitu­tion is criticised as in this case a law remains in force even if it is invalid in the light of the binding interpretation adopted by the court.^[304] The attribution of both ex tunc and ex nunc effects to the decisions of nullification is ‘sometimes found to need attenuation’.^[305] However, as the ex tunc effects have to be limited to exceptional circumstances only, the solution requires great caution.^[306] Vice versa, only exceptional circumstances could authorise tran­sitory derogations of the rule of the ex nunc effects, which is normally accepted. This is because ‘limiting the effects of the constitutional sentences to future cases and cases which have not yet been settled in final instance has an advantage from the viewpoint of legal certainty’^[307] These developments cannot be automatic; rather, they depend on a decision of the interested court providing for exceptional effects ex tunc or exceptionally derogating the rule of the ex nunc effects.

As was said in the introductory remarks, Germany is frequently quoted as an example of a constitution that authorises the constitutional court to introduce specific rules for tran­sitory suspension of the ex nunc effects of its decisions in view of the modification of the invalid rules by the parliament. This example has been followed by Bosnia-Herzegovina and Ireland. In Austria, as in Poland, the court can adopt an 18-month delay of the effects of its decisions concerning legislative acts, while in Turkey the delay is restricted to one year, and in the Czech Republic, the court can decide the date for the commencement of the effects. In Greece, the court can give retroactive effects to its sentences. In Poland, the old constitution obliged the constitutional judge to ask the advice of the government with regard to fixing the date for the commencement of its decisions that had financial ramifications. In Slovakia, the parliament has a deadline of six months to modify the legislation in conformity with the decision of the court.

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