Conference on “Dissenting opinions in constitutional jurisdiction” with the participation of regional constitutional courts
- Details
- Published: December 15, 2020
On 11 December 2020, IRZ and the Constitutional Court of Bosnia and Herzegovina organised a regional conference on “Dissenting opinions in constitutional jurisdiction”. Judges from the constitutional courts of Croatia, Montenegro, North Macedonia, Serbia and Slovenia also took part in the online event.
During the first part of the conference, the speakers presented the possibility of dissenting opinions in the case law of the participating constitutional courts and the relevant practices in this area. The speakers were:
- Zlatko M. Knežević, President of the Constitutional Court of Bosnia and Herzegovina
- Hamdija Šarkinović, interim director of the Constitutional Court of Montenegro
- Dr. Mato Arlović, a judge at the Constitutional Court of Croatia,
- Sali Murati, President of the Constitutional Court of North Macedonia
- Prof. Dr. Rajko Knez, President of the Constitutional Court of Slovenia
- Snežana Marković, President of the Constitutional Court of Serbia
The German point of view was provided by Prof. Dr. Michael Eichberger, a former constitutional court judge in Germany. The lectures mapped out many similarities, as well as some different positions, which led to intense discussions and a lively exchange of experiences.
One common feature for all the constitutional courts represented at the conference is the possibility of a dissenting opinion, which is relatively new to the region. These can be dissenting opinions, which disagree with the majority opinion, as well as dissent in the form of simply demonstrating an alternative way of reasoning.
The participants underlined the positive aspect of an announcement of a dissenting opinion by a judge being enough to provoke more in-depth discussions in the relevant Senate and very well-founded reasoning by the majority. They also reported on cases, in which the majority was led to revise its original opinion once it had analysed a dissenting opinion. Since the European Court of Human Rights in Strasbourg adheres in isolated cases to the dissenting opinion and not to the majority opinion when reviewing decisions, a dissenting opinion can also encourage scientific debate of the legal issue in question. Dissenting opinions can, however, also have negative effects, such as when their reporting in the media gives the impression that a constitutional court is not united. The participants therefore agreed that dissenting opinions should be reserved for rare cases in which, out of principle, a judge cannot defend being identified with the majority verdict. Dissenting opinions should on no account be used with a view to potential re-election, for example, or to continue a career beyond the end of a judge’s official mandate in certain political circumstances.
Background information
IRZ organises the annual regional conference on constitutional law, which is financed by the German Federal Foreign Office (AA), in turn with the constitutional courts of Bosnia and Herzegovina, North Macedonia or Montenegro.
