The Effect of the Constitutional Court Decisions / Dejstvo odluka ustavnih sudova

Abstract

The Constitutional Court is a separate institution designed to protect constitutionality and legality. The effect of judicial review of the constitutionality of laws depends on the effects of decisions which are brought in that process. Unconstitutional laws are null and void, and from the standpoint of binding effect, decisions of constitutional courts are final and enforceable. Judicial review of laws before constitutional court raises questions whose solutions sometimes can not be theoretically consistent or precise legal standardized. The differences that exist regarding the scope of efficacy of unconstitutionality of laws, scope of the cassation and time effect of the constitutional court decisions are result of the differences in the way of achieving and the extent of the compromise between different principles, or group of principles - the principle of legal certainty on the one hand, and the principles of equality, strict constitutionality and democratic state, and protection the rights of the parties, on the other side.
According to the Constitution, the decisions of Constitutional Court of Bosnia and Herzegovina shall be final and binding. Since the legal effect of the Bosnia and Herzegovina Constitutional Court decisions are regulated by the Rules of the Court, the question is raised whether the Constitutional Court from “negative” becomes positive legislator, especially if we take into account that the Court determines the temporal effect of its decisions, and can also determines period in which the general act should be harmonized with the Constitution. Some of the solutions contained in the Rules of The Constitutional Court and in certain laws, such as those which are related to the question of the effect of the unconstitutional law provisions within the period which is given to the legislator to harmonize the law with the Constitution, or those which are related to incrimination of non-enforcement of the Constitutional Court decisions, do not have systematic quality.