CYIL 2010

EMIL RUFFER CYIL 1 ȍ2010Ȏ judicial power in favour of political processes, and which outweighs the requirement of absolute legal certainty (cf. especially Sunstein, C. R.: One Case at a Time: Judicial Minimalism on the Supreme Court, Cambridge, Harvard University Press, 1999, pp. 209-243, directly concerning the relationship between judicial minimalism and the requirement of legal certainty). The attempt to define the term “sovereign, unitary and democratic state governed by the rule of law, founded on respect for the rights and freedoms of persons and of citizens” once and for all (as the petitioners, supported by the president, request) would, by contrast, be seen as an expression of judicial activism, which is, incidentally, consistently criticized by certain other political figures. ” 102 In Part IV, which is of special interest despite not directly dealing with the substance of the proceedings, the Constitutional Court considered, in light of the procedural steps taken by the petitioners, whether the “ broadly conceived participation in proceedings on the constitutionality of international treaties, which gives procedural opportunities to raise doubts about an as yet unratified international treaty progressively to individual potential petitioners, does not, on the other hand, create an intolerable risk of abuse of procedural mechanisms before the Constitutional Court, abuse that would contravene the very purpose of the proceeding. ” 103 The Court emphasised that doubts regarding the constitutionality of a negotiated international treaty need to be removed without unnecessary delay , in view of the rule of good faith in international relations , and in view of the obligation of the President to ratify, without unnecessary delay, an international treaty that was duly negotiated by the President of the Republic or based on his authorization, and the ratification of which has been consented to by a democratically elected legislative assembly. Based on its analysis, the Constitutional Court stated that “ the opening of proceedings on the constitutionality of international treaties by groups of senators, groups of deputies, and the president of the republic, must be subject to the same deadline within which it is necessary to ratify an international treaty, i.e., a deadline stipulating without unnecessary delay. ” 104 According to the Court this means within several weeks, not months, as was the case in this instance. 105 In future cases, a late submission of the petition for review could be a reason for its dismissal. 106 The fact that the Constitutional Court explicitly underlined the reasonableness of the deadline for the submission of an application for the review of an international treaty’s compliance with the constitutional order, and emphasized

102 Ibid., para. 113 (emphasis added). 103 Ibid., para. 115. 104 Ibid., para. 119 (emphasis added). 105 Ibid., para. 121.

106 Ibid., para. 121. The Court excused the unreasonably delayed submission in this case and gave this explanation: “ However, the Constitutional Court did not deny the petition to open proceedings on those grounds, this time, because it does not wish to retroactively burden the petitioners with an interpretation of the procedural rules that regulate access to the Constitutional Court and the deadlines within which the Constitutional Court made a finding in this decision. ”

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