chapter 8b
Legal System (version 2)
Part I - The Judiciary
Article 113 (Independence of Judges)
Judges shall be independent in the performance of the judicial function. They shall be bound by the Constitution and laws.
Article 114 (Organisation and Jurisdiction of Courts and Tribunals)
(1) The organisation and jurisdiction of courts are determined by law.
The magistrate courts – headed by a District Judge and assisted by lay magistrates will be the court of first instance in criminal cases. They will decide if the matter should be dealt with by them or referred upwards to the High Court (Criminal Division) for trial. Appeal from the High Court is to the Court of Appeal and from there to the Supreme Court as the courts of final instance.
Civil cases are to be heard in the first instance by the County Court, or referred to the High Court (Civil Division) and appeal to the Court of Appeal and the final instance to the Supreme Court.
There will also be established a system of Family Courts to deal with matters pertinent to inheritance wardship and marriage.
Specialist Tribunals shall also be established by law.
(2) Extraordinary courts may not be established, nor may military courts be established in peacetime.
(3) Members of the lay magistracy are excluded from the disabilities from membership of political parties or elective office. They are appointed by the President on the recommendation of the Minister for Justice.
Article 115 (Participation of Citizens in the Exercising of Judicial Power)
The circumstances and form of the direct participation of citizens in the exercising of judicial power as part of the jury system are regulated by law.
Article 116 (Permanence of Judicial Office)
(1) The office of a judge is permanent. The age requirement and other conditions for election are determined by law.
(2) The retirement age of judges is determined by law.
Article 117 (Appointment of Judges)
Judges are appointed by the President of the Republic on the proposal of the Judicial Council.
Article 118 (Judicial Council)
The Judicial Council is composed of eleven members. The National Parliament elects five members on the proposal of the President of the Republic from among university professors of law, attorneys and other lawyers, whereas judges holding permanent judicial office elect six members from among their own number. The members of the council select a president from among their own number.
Article 119 (Termination of and Dismissal from Judicial Office)
(1) A judge ceases to hold judicial office where circumstances arise as provided by law.
(2) If in the performance of the judicial office a judge violates the Constitution or seriously violates the law, the Senedd in Joint Session may dismiss such judge on the proposal of the Judicial Council by a two thirds majority of members present and voting.
(3) If a judge is found by a final judgment to have deliberately committed a criminal offense through the abuse of the judicial office, the Senedd in Joint Session dismisses such judge by a two thirds majority of members present and voting.
Article 120 (Incompatibility of Judicial Office)
Judicial office is not compatible with office in other state bodies, in local self-government bodies and in bodies of political parties, and with other offices and activities as provided by law.
Article 121 (Immunity of Judges)
(1) No one who participates in making judicial decisions may be held accountable for an opinion expressed during decision-making in court.
(2) If a judge is suspected of a criminal offense in the performance of judicial office, he may not be detained nor may criminal proceedings be initiated against him without the consent of the Judicial Council.
Article 122 (Powers of the Supreme Court)
(1) The Supreme Court decides:
-- on the conformity of laws with the Constitution;
-- on the conformity of laws and other regulations with ratified treaties and with the general principles of international law;
-- on the conformity of regulations with the Constitution and with laws;
-- on the conformity of local community regulations with the Constitution and with laws;
-- on the conformity of general acts issued for the exercise of public authority with the Constitution, laws and regulations;
-- on constitutional complaints stemming from the violation of human rights and fundamental freedoms by individual acts;
-- on jurisdictional disputes between the state and local communities and among local communities themselves;
-- on jurisdictional disputes between courts and other state authorities;
-- on jurisdictional disputes between the National Parliament, the President of the Republic and the Government;
-- on the unconstitutionality of the acts and activities of political parties;
– acts as the final court of appeal from all other courts and;
-- on other matters vested in the Supreme Court by this Constitution or laws.
(2) In the process of ratifying a treaty, the Supreme Court, on the proposal of the President of the Republic, the Government or a third of the deputies of the National Parliament, issues an opinion on the conformity of such treaty with the Constitution. The National Parliament is bound by the opinion of the Supreme Court.
(3) Unless otherwise provided by law, the Supreme Court decides on a constitutional complaint only if legal remedies have been exhausted. The Supreme Court decides whether to accept a constitutional complaint for adjudication on the basis of criteria and procedures provided by law.
Article 123 (Abrogation of a Law)
(1) If the Supreme Court establishes that a law is unconstitutional, it abrogates such law in whole or in part. Such abrogation takes effect immediately or within a period of time determined by the Supreme Court. This period of time may not exceed one year. The Supreme Court annuls or abrogates other regulations or general acts that are unconstitutional or contrary to law. Under conditions provided by law, the Supreme Court may, up until a final decision, suspend in whole or in part the implementation of an act whose constitutionality or legality is being reviewed.
(2) If in deciding on a constitutional complaint the Supreme Court establishes the unconstitutionality of a regulation or general act, it may in accordance with the provisions of the first paragraph of this article annul or abrogate such regulation or act.
(3) The legal consequences of Supreme Court decisions shall be regulated by law.
Article 124 (Proceedings before the Supreme Court)
(1) Proceedings before the Supreme Court shall be regulated by law.
(2) The law determines who may require the initiation of proceedings before the Supreme Court. Anyone who demonstrates legal interest may request the initiation of proceedings before the Supreme Court.
(3) The Supreme Court decides by a majority vote of all its judges unless otherwise provided for individual cases by the Constitution or law. The Supreme Court may decide whether to initiate proceedings following a constitutional complaint with fewer judges as provided by law.
Article 125 (Composition and Election)
(1) The Supreme Court is composed of nine judges, elected on the proposal of the President of the Republic by the Judicial Council in a manner provided by law.
(2) The judges are elected from among legal experts.
(3) The President of the Supreme Court is appointed by the President of the Republic from among their number for a term of four years and is eligible to be reappointed for one additional term.
Article 126(Early Termination of Office of a Supreme Court Judge)
A Supreme Court judge may be subject to early termination of office in a manner provided by law only:
-- if the judge himself so requests,
-- if the judge is punished by imprisonment for a criminal offense, or
-- due to permanent loss of capacity to perform his office.
Article 127 (Term of Office of Judges)
(1) Supreme Court judges are elected for a term of nine years. Supreme Court judges may re-elected for a second term only.
(2) Upon the expiry of the term for which a Supreme Court judge has been elected, he continues to perform his office until the election of a new judge.
Article 128 (Incompatibility of Office)
The office of Supreme Court judge is not compatible with office in state bodies, in local self-government bodies and in bodies of political parties, and with other offices and activities that are not compatible by law with the office of Supreme Court judge.
Article 129 (Immunity)
Supreme Court judges enjoy the same immunity as National Parliament deputies. The National Parliament decides on such immunity.
Part II - State Prosecutor's Office
Article 130 (State Prosecutor)
(1) State Prosecutors file and present criminal charges and have other powers provided by law.
(2) The organisation and powers of state prosecutor offices are provided by law.
Article 131 (Incompatibility of the Office of State Prosecutor)
The office of State Prosecutor is not compatible with office in other state bodies, in local self-government bodies and in bodies of political parties, and with other offices and activities as provided by law.
[Part] III Constitutionality and Legality
Article 132 (Conformity of Legal Acts)
(1) Laws, regulations and other general legal acts must be in conformity with the Constitution.
(2) Laws must be in conformity with generally accepted principles of international law and with valid treaties ratified by the National Parliament, whereas regulations and other general legal acts must also be in conformity with other ratified treaties.
(3) Regulations and other general legal acts must be in conformity with the Constitution and laws.
(4) Individual acts and actions of state authorities, local community authorities and bearers of public authority must be based on a law or regulation adopted pursuant to law.
Article 133 (Validity and Publication of Regulations)
(1) Regulations must be published prior to entering into force. A regulation enters into force on the fifteenth day after its publication unless otherwise determined in the regulation itself.
(2) State regulations are published in the official gazette of the state, whereas local community regulations are published in the official publication determined by the local community.
Article 134 (Prohibition of Retroactive Effect of Legal Acts)
(1) Laws and other regulations and general legal acts cannot have retroactive effect.
(2) Only a law may establish that certain of its provisions have retroactive effect, if this is required in the public interest and provided that no acquired rights are infringed thereby.
Article 135 (Constitutional Review)
If a court deciding some matter deems a law which it should apply to be unconstitutional, it must stay the proceedings and initiate proceedings before the Supreme Court. The proceedings in the court may be continued after the Supreme Court has issued its decision.
Article 136 (Judicial Review of Administrative Acts)
(1) A court having jurisdiction to review administrative acts decides the legality of final individual acts with which state authorities, local community authorities and bearers of public authority decide the rights or obligations and legal entitlements of individuals and organisations, if other legal protection is not provided by law for a particular matter.
(2) If other legal protection is not provided, the court having jurisdiction to review administrative acts also decides on the legality of individual actions and acts which intrude upon the constitutional rights of the individual.
Article 137 (Finality of Legal Decisions)
Legal relations regulated by the final decision of a state authority may be annulled, abrogated or amended only in such cases and by such procedures as are provided by law.
Article 138 (Ombudsman for Human Rights and Fundamental Freedoms)
(1) In order to protect human rights and fundamental freedoms in relation to state authorities, local self-government authorities and bearers of public authority, the office of the ombudsman for the rights of citizens shall be established by law.
(2) Special ombudsmen for the rights of citizens may also be established by law for particular fields.
(3) The Ombudsmen will be appointed by the President of the republic with the advice of the Presidential Council.
Article 113 (Independence of Judges)
Judges shall be independent in the performance of the judicial function. They shall be bound by the Constitution and laws.
Article 114 (Organisation and Jurisdiction of Courts and Tribunals)
(1) The organisation and jurisdiction of courts are determined by law.
The magistrate courts – headed by a District Judge and assisted by lay magistrates will be the court of first instance in criminal cases. They will decide if the matter should be dealt with by them or referred upwards to the High Court (Criminal Division) for trial. Appeal from the High Court is to the Court of Appeal and from there to the Supreme Court as the courts of final instance.
Civil cases are to be heard in the first instance by the County Court, or referred to the High Court (Civil Division) and appeal to the Court of Appeal and the final instance to the Supreme Court.
There will also be established a system of Family Courts to deal with matters pertinent to inheritance wardship and marriage.
Specialist Tribunals shall also be established by law.
(2) Extraordinary courts may not be established, nor may military courts be established in peacetime.
(3) Members of the lay magistracy are excluded from the disabilities from membership of political parties or elective office. They are appointed by the President on the recommendation of the Minister for Justice.
Article 115 (Participation of Citizens in the Exercising of Judicial Power)
The circumstances and form of the direct participation of citizens in the exercising of judicial power as part of the jury system are regulated by law.
Article 116 (Permanence of Judicial Office)
(1) The office of a judge is permanent. The age requirement and other conditions for election are determined by law.
(2) The retirement age of judges is determined by law.
Article 117 (Appointment of Judges)
Judges are appointed by the President of the Republic on the proposal of the Judicial Council.
Article 118 (Judicial Council)
The Judicial Council is composed of eleven members. The National Parliament elects five members on the proposal of the President of the Republic from among university professors of law, attorneys and other lawyers, whereas judges holding permanent judicial office elect six members from among their own number. The members of the council select a president from among their own number.
Article 119 (Termination of and Dismissal from Judicial Office)
(1) A judge ceases to hold judicial office where circumstances arise as provided by law.
(2) If in the performance of the judicial office a judge violates the Constitution or seriously violates the law, the Senedd in Joint Session may dismiss such judge on the proposal of the Judicial Council by a two thirds majority of members present and voting.
(3) If a judge is found by a final judgment to have deliberately committed a criminal offense through the abuse of the judicial office, the Senedd in Joint Session dismisses such judge by a two thirds majority of members present and voting.
Article 120 (Incompatibility of Judicial Office)
Judicial office is not compatible with office in other state bodies, in local self-government bodies and in bodies of political parties, and with other offices and activities as provided by law.
Article 121 (Immunity of Judges)
(1) No one who participates in making judicial decisions may be held accountable for an opinion expressed during decision-making in court.
(2) If a judge is suspected of a criminal offense in the performance of judicial office, he may not be detained nor may criminal proceedings be initiated against him without the consent of the Judicial Council.
Article 122 (Powers of the Supreme Court)
(1) The Supreme Court decides:
-- on the conformity of laws with the Constitution;
-- on the conformity of laws and other regulations with ratified treaties and with the general principles of international law;
-- on the conformity of regulations with the Constitution and with laws;
-- on the conformity of local community regulations with the Constitution and with laws;
-- on the conformity of general acts issued for the exercise of public authority with the Constitution, laws and regulations;
-- on constitutional complaints stemming from the violation of human rights and fundamental freedoms by individual acts;
-- on jurisdictional disputes between the state and local communities and among local communities themselves;
-- on jurisdictional disputes between courts and other state authorities;
-- on jurisdictional disputes between the National Parliament, the President of the Republic and the Government;
-- on the unconstitutionality of the acts and activities of political parties;
– acts as the final court of appeal from all other courts and;
-- on other matters vested in the Supreme Court by this Constitution or laws.
(2) In the process of ratifying a treaty, the Supreme Court, on the proposal of the President of the Republic, the Government or a third of the deputies of the National Parliament, issues an opinion on the conformity of such treaty with the Constitution. The National Parliament is bound by the opinion of the Supreme Court.
(3) Unless otherwise provided by law, the Supreme Court decides on a constitutional complaint only if legal remedies have been exhausted. The Supreme Court decides whether to accept a constitutional complaint for adjudication on the basis of criteria and procedures provided by law.
Article 123 (Abrogation of a Law)
(1) If the Supreme Court establishes that a law is unconstitutional, it abrogates such law in whole or in part. Such abrogation takes effect immediately or within a period of time determined by the Supreme Court. This period of time may not exceed one year. The Supreme Court annuls or abrogates other regulations or general acts that are unconstitutional or contrary to law. Under conditions provided by law, the Supreme Court may, up until a final decision, suspend in whole or in part the implementation of an act whose constitutionality or legality is being reviewed.
(2) If in deciding on a constitutional complaint the Supreme Court establishes the unconstitutionality of a regulation or general act, it may in accordance with the provisions of the first paragraph of this article annul or abrogate such regulation or act.
(3) The legal consequences of Supreme Court decisions shall be regulated by law.
Article 124 (Proceedings before the Supreme Court)
(1) Proceedings before the Supreme Court shall be regulated by law.
(2) The law determines who may require the initiation of proceedings before the Supreme Court. Anyone who demonstrates legal interest may request the initiation of proceedings before the Supreme Court.
(3) The Supreme Court decides by a majority vote of all its judges unless otherwise provided for individual cases by the Constitution or law. The Supreme Court may decide whether to initiate proceedings following a constitutional complaint with fewer judges as provided by law.
Article 125 (Composition and Election)
(1) The Supreme Court is composed of nine judges, elected on the proposal of the President of the Republic by the Judicial Council in a manner provided by law.
(2) The judges are elected from among legal experts.
(3) The President of the Supreme Court is appointed by the President of the Republic from among their number for a term of four years and is eligible to be reappointed for one additional term.
Article 126(Early Termination of Office of a Supreme Court Judge)
A Supreme Court judge may be subject to early termination of office in a manner provided by law only:
-- if the judge himself so requests,
-- if the judge is punished by imprisonment for a criminal offense, or
-- due to permanent loss of capacity to perform his office.
Article 127 (Term of Office of Judges)
(1) Supreme Court judges are elected for a term of nine years. Supreme Court judges may re-elected for a second term only.
(2) Upon the expiry of the term for which a Supreme Court judge has been elected, he continues to perform his office until the election of a new judge.
Article 128 (Incompatibility of Office)
The office of Supreme Court judge is not compatible with office in state bodies, in local self-government bodies and in bodies of political parties, and with other offices and activities that are not compatible by law with the office of Supreme Court judge.
Article 129 (Immunity)
Supreme Court judges enjoy the same immunity as National Parliament deputies. The National Parliament decides on such immunity.
Part II - State Prosecutor's Office
Article 130 (State Prosecutor)
(1) State Prosecutors file and present criminal charges and have other powers provided by law.
(2) The organisation and powers of state prosecutor offices are provided by law.
Article 131 (Incompatibility of the Office of State Prosecutor)
The office of State Prosecutor is not compatible with office in other state bodies, in local self-government bodies and in bodies of political parties, and with other offices and activities as provided by law.
[Part] III Constitutionality and Legality
Article 132 (Conformity of Legal Acts)
(1) Laws, regulations and other general legal acts must be in conformity with the Constitution.
(2) Laws must be in conformity with generally accepted principles of international law and with valid treaties ratified by the National Parliament, whereas regulations and other general legal acts must also be in conformity with other ratified treaties.
(3) Regulations and other general legal acts must be in conformity with the Constitution and laws.
(4) Individual acts and actions of state authorities, local community authorities and bearers of public authority must be based on a law or regulation adopted pursuant to law.
Article 133 (Validity and Publication of Regulations)
(1) Regulations must be published prior to entering into force. A regulation enters into force on the fifteenth day after its publication unless otherwise determined in the regulation itself.
(2) State regulations are published in the official gazette of the state, whereas local community regulations are published in the official publication determined by the local community.
Article 134 (Prohibition of Retroactive Effect of Legal Acts)
(1) Laws and other regulations and general legal acts cannot have retroactive effect.
(2) Only a law may establish that certain of its provisions have retroactive effect, if this is required in the public interest and provided that no acquired rights are infringed thereby.
Article 135 (Constitutional Review)
If a court deciding some matter deems a law which it should apply to be unconstitutional, it must stay the proceedings and initiate proceedings before the Supreme Court. The proceedings in the court may be continued after the Supreme Court has issued its decision.
Article 136 (Judicial Review of Administrative Acts)
(1) A court having jurisdiction to review administrative acts decides the legality of final individual acts with which state authorities, local community authorities and bearers of public authority decide the rights or obligations and legal entitlements of individuals and organisations, if other legal protection is not provided by law for a particular matter.
(2) If other legal protection is not provided, the court having jurisdiction to review administrative acts also decides on the legality of individual actions and acts which intrude upon the constitutional rights of the individual.
Article 137 (Finality of Legal Decisions)
Legal relations regulated by the final decision of a state authority may be annulled, abrogated or amended only in such cases and by such procedures as are provided by law.
Article 138 (Ombudsman for Human Rights and Fundamental Freedoms)
(1) In order to protect human rights and fundamental freedoms in relation to state authorities, local self-government authorities and bearers of public authority, the office of the ombudsman for the rights of citizens shall be established by law.
(2) Special ombudsmen for the rights of citizens may also be established by law for particular fields.
(3) The Ombudsmen will be appointed by the President of the republic with the advice of the Presidential Council.