Comparative legal method is of importance in any aspect of the development of European constitutionalism. When in the course of interpretation constitutional jurisdictions look beyond the classical methods - textual, systematic, historic, teleological - and include in their decision-making process arguments sourcing from case-law of other courts with constitutional jurisdiction, this leads to an exchange of arguments and the improvement of common values, and, in the end, to the development of supranational constitutionalism based on shared values.
In our study we use the following terms:
"method" - for the purposes of the present text to be understood as a style of referring to decisions of other constitutional jurisdictions or their usual practice.
"foreign" - courts in as much as their headquarters are situated outside of the country.
"constitutional courts" - hereinafter all courts, tribunals, councils with constitutional jurisdiction would be considered as constitutional courts, including supranational courts (CJEU and the ECtHR) which in their case-law deal with constitutional matters or use specific constitutional rhetoric. The CJEU and the ECtHR will be referred to as "constitutional courts" or court with constitutional functions for the purposes of the present research.
"quoting" - since quoting is considered merely as pointing out, referring to, the process of finding out or establishing the foreign case-law, as it is done in international private law, for example, falls out of the scope of the present research. However, it is worth noting in brief that the main sources of case-law are official webpages of constitutional jurisdictions, and their official editions, search results in CODICES, official formal requests through the forum of the Venice Commission, informal inquiries that are based on personal contacts between justices and finally, secondary sources such as scientific research which quotes case-law. Habitually, when the source of information is secondary, justices request the staff for the original decision itself in one of their working languages no matter how distinguished the author of the scientific paper/research/book is.
An automatic search in the legal database software APIS and Lakorda for key words such as:
1. For case-law of the ECtHR: "European Court of Human Rights", "the Strasbourg Court", "ECtHR", "constitutional courts".
2. For case- law of the CJEU: "European Court of Justice", "ECJ", "the Luxembourg Court".
3. For case-law of foreign national constitutional jurisdictions: the name of the country or adjective signifying origin from that country such as "Germany", "German", "Hungary", "Hungarian", etc. and general expressions such as "other states", "other countries", "foreign countries".
A search in the body of the decisions of the Constitutional Court of Republic of Bulgaria (hereinafter: CCRB) that discuss the European Convention on Human Rights (ECHR) or European Union law (EU law).
Regarding the EU law a pre-existing list of all constitutional court decisions that mention EU law is used as well.
On several occasions in the past few years the Court has submitted requests through the Forum of the Commission for Democracy through Law, which is also known as the Venice Commission. The cases in relation to which such requests were made are pointed out as well.
Other practices of looking into comparative constitutional law such as personal searches, access to the library of the constitutional court or informal contacts with justices from other jurisdictions do not leave an objective trace as quoting and official requests do.
Since 1991 the CCRB has adopted about 800 acts. About half or 407 of them are decisions.
There are 24 decisions which the search has shown to be quoting decisions of the ECtHR. There are also dissenting opinions of constitutional justices referring to case-law of the ECtHR.
- 50/51 -
In most of the decisions the quoting method consists of pointing out the parties in English[1] and less often in French[2], Bulgarian or other languages.[3] ECtHR' decisions against Bulgaria are quoted in Bulgarian.[4]
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Visszaugrás
