ACTA JURIDICA - A MTA Jogtudományi Közleményei Vol. 33 (1991)

1991 / 1-2. sz. - STUDIES - SÓLYOM LÁSZLÓ: The First Year of the Costitutional Court

Constitutional Court 13 Para. (4) of Art. 43 ACC contains a double mistake. On the one hand, it integrates the legal consequences of abstract control and constitutional complaints and, on the other, sets no suitable condition for the application of any of those consequences. "Legal certainty" generally precludes ex tunc repeal, while the petitioner submitting a constitu­tional complaint is interested in receiving a remedy for his personal matter. In order that suitable conditions may be evolved and that the CC initiative, which is correct in sub­stance, but dogmatically untenable because of its "effectivity to individual cases", may also conceptually be developed, we must put in order the concepts used in the ACC. The ACC uses three different terms to define the consequences of declaring uncon­stitutionality: the ACC annuls a legal provision (Art. 40), in which case the legal provision loses effect on the day the relevant decision is published (Art. 42), and it is inapplicable from that day (Art. 43). "Annulment" seems to be contradictory to ex nunc repeal mentioned in Art. 42. Annulment should be in harmony with ex tunc repeal as the CC merely declares uncon­stitutionality existing from the time a legal provision is contrary to the Constitution. Consequently, what the CC should state is that the legal provision concerned is null and void from that time. For practical reasons, however, this logical requirement is not met in full by any legal system. On the other hand, para. (4) of Art. 43 of the ACC allows ex tunc annulment in exceptional cases. Thus "annulment" may be construed as a general concept which, in addition to "real" annulment with retroactive effect, includes partial consequences of nullity: "revocation" of a legal provision with regard to the future only and other limitations on its applicability. An act on a constitutional court, whether based on ex tunc annulment or on ex nunc repeal, cannot but choose to make exceptions from the rule by reason of legal certainty or equity. Even if, it admits ex tunc annulment of legal provisions, it does not allow its consequences to be enforced in all cases, or else it would be necessary to examine every legal transaction entered into under a non-existent legal provision and to clarify the legal situation relating to it. To avoid the burdens and legal uncertainty ensuing from this, ex­ceptions are usually allowed to all legal relations "carried into effect", annulment having no bearing on cases finally decided, obligations fulfilled and rights acquired. So, practi­cally, ex tunc repeal affects only such legal relations as have not yet been settled with all their consequences. The final result is practically the same in the laws where ex nunc repeal is the general rule. Here it is equity that requires annulment to be retroactive in certain cases. Again, these cases may not be settled ones, at least in so far as they have been submitted to the Constitutional Court, albeit after their final decision, but not later than the deadline fixed for the judgement of a constitutional complaint. Both solutions meet with the said dogmatic difficulties. The normativity of a legal provision does not allow its force to be unduly fragmentized. This difficulty is sought to be overcome by the category of "applicability to concrete cases" of the ACC, where a legal provision can or cannot be applied irrespective of a decision concerning its validity.

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