Die Kontrolldichte des Bundesverfassungsgerichts bei der Überprüfung fachgerichtlicher Entscheidungen als Modell für die georgische Gerichtsbarkeit?

• Published in: Verfassung und Recht in Übersee 2007-01, Vol.40 (3), p.290-313
• Main Authors: Kublaschvili, Konstantin, Schubert, Björn G.
• Format: Article
• Language: ger
• Subjects: ANALYSEN UND BERICHTE
• ISSN: 0506-7286

This paper presents the thesis that the introduction of a constitutional complaint against court judgments into the Georgian legal system will have multiple benign effects on the young democracy in the Caucasus. This applies in particular to improved of legal protection of the citizens, and also to lending substance, in the jurisprudence of lower-instance specialised courts, to the freedoms guaranteed by the constitution,. In addition, there is a readjustment of the actual significance of the Georgian Constitutional Court. Although the Georgian constitution does provide for a constitutional complaint as a matter of principle, it is only admissible against so-called normative acts, which have been conclusively defined in a catalogue in the law concerning normative acts. This does not cover judicial decisions, although the motives of the constitution markers for this are not quite clear and for good reason give rise to the suggestions made here. The core of the argument is that the application of a three-phased scale of examination developed by the German Federal Constitutional Court achieves an effective ambit of control which respects the requirements of specialised jurisdiction and also guarantees that the working capacity of the Constitutional Court is not overburdened. This criteria for this are guided by the principle of proportionality: the more incisively a judgment by a specialist lower court affects the basic sphere of rights of the defeated party, the stricter the requirements to be made for the justification of this intervention and the wider the scope for subsequent review on grounds of constitutional law.