Constitutional Law
Scope of the domain
The constitutional section tests the 1995 Constitution, its supremacy, the separation of powers, fundamental rights and the jurisdiction of the Constitutional Court. Candidates must be able to test a statute against constitutional rights and explain admissibility before the Constitutional Court.
Core rules
- The Constitution is the supreme law. Statutes and other normative acts must conform to it. Ordinary courts apply the Constitution but do not annul statutes; constitutional review belongs to the Constitutional Court.
- Fundamental rights may be limited only by law, for a legitimate aim, and proportionately. The limitation must not destroy the essence of the right.
- The Constitutional Court reviews the constitutionality of normative acts. Standing is limited: the President, a statutory number of Members of Parliament, the Public Defender, courts in specific circumstances and other listed bodies may apply. The 2018 revision introduced an individual constitutional complaint against a normative act, subject to exhaustion of ordinary remedies and time limits.
- Judicial independence is guaranteed by irremovability, immunity and adequate funding. Judges are subject only to the Constitution and law.
- The Constitution establishes a parliamentary system with a President elected indirectly by an Electoral College and a Prime Minister responsible to Parliament.
Worked example
Parliament amends the Law on Assemblies to ban all demonstrations within 200 metres of any public building for an indefinite period. The Public Defender challenges the rule. Reasoning: freedom of assembly is protected but not absolute. The ban pursues a legitimate aim, public order and the functioning of institutions. Yet a blanket, permanent exclusion of all public buildings is not necessary: less restrictive measures such as time limits, route conditions or case-by-case restrictions are available. The measure is disproportionate and also impairs the essence of the right. The Constitutional Court may declare the provision unconstitutional.
Traps
Do not argue proportionality only in the abstract; identify the specific aim and the less restrictive alternative. Check standing and admissibility first: a strong merits argument fails if the applicant is not entitled to bring the claim. Do not ask an ordinary court to declare a statute unconstitutional. Avoid confusing constitutional review with administrative review of an individual decision.