When the Judge Misuses His Independence

The Evolution of Constitutional Jurisdiction Concerning Arbitrary/Contra Legem Judicial Decisions

Abstract

The constitutional complaint, introduced by the Fundamental Law, which is the option of constitutional review of judicial judgements, has repositioned the relationship of the Constitutional Court and the judicial branch. It has brought up new questions, like whether there are jurisdictional elements in the activity of the Constitutional Court, how do the internal control mechanism of judge-made jurisdiction and constitutional review relate to each other, or what can possibly be the right direction and content of constitutional review (“result” or “interpretation control”). To analyse these questions, the procedural fundamental right provides the framework, which is recognised in section (1) of Article XXVIII of the Fundamental Law. Its content has been made much more nuanced by a series of new elements introduced by the Constitutional Court recently. The question of the nature of contra legem and that of the arbitrary judicial decision stand in the centre of the investigation.