Research Sarah Verstraelen

Abstract

The theory of constitutional dialogue has been extensively studied in recent years. The preliminary reference procedure is often highlighted as a primary tool for constitutional conversations between courts. Although considerable research has been devoted to the courts' referral practices and the preliminary judgments of the constitutional courts, less attention has been paid to the referring courts' reply. However, in order to analyse whether the preliminary reference procedure triggers a genuine dialogue between courts, the follow-up judgments by the referring courts need to be taken into account. Consequently, the purpose of this project is twofold. First, we will collect and analyse these follow-up decisions of the referring courts in order to examine the actual consequences of a preliminary judgement. The project will focus on the study of preliminary judgments by the Belgian Constitutional Court, in particular those in which the Court determines that a legislative lacuna is present. After all, remedying an unconstitutional lacuna requires positive action. What's more, since 2008, the Constitutional Court allows courts to complement the unconstitutional law under certain circumstances. This project will show to what extent Belgian courts actually undertake positive action by extending the scope of the law. Unfortunately, there does not exist a comprehensive database that includes all judgments of ordinary courts; only a selection of case law is uploaded in the Juridat database. Consequently, for the decisions that cannot be found in this database, the registries of the relevant court will be contacted. The assistance of a job student to collect these judgments and enter them into a Nvivo-database, would be of significant value. Secondly, we will focus on the attitude of judges towards the Constitutional Court. By means of interviews and surveys we will examine to what extent the Constitutional Court is perceived as an initiator of constitutional dialogue. To reach the judges in the French and German speaking part of Belgium, a reliable translation of the survey is crucial. This approach correlates with the increase in use of qualitative research methods within legal research, into which I plan to gain more in-depth knowledge. This project does not encompass a new research program, but complements my FWO Postdoctoral Research in which I focus on the case of legislative omissions to examine the role of the Constitutional Court as initiator of constitutional dialogue. Within this FWO research, the position of the legislator as participant in the constitutional dialogue is examined as well.

Researcher(s)

• Promoter: Verstraelen Sarah

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

The primary task of a Constitutional Court is safeguarding the fundamental rights of citizens by annulling unconstitutional norms and preventing further application. However, when the court determines that a legislative gap is unconstitutional, this decision does not directly provide for the necessary protection: it merely states that further action is needed to remove the legislative omission. Hence, the question rises whether or not other institutional organs, namely the legislator and the courts, will comply with this statement and whether they will fill the contested legislative lacuna. This is the central research question in this study: how do courts and legislators respond to findings of unconstitutional legislative omissions? By indicating the unconstitutional omission, the court initiates a dialogue, first and foremost with the legislator. It is primarily his task to correct the unconstitutionality. This does not detract from the fact that the Constitutional Court will frequently indicate the proper solution for the legislative lacuna. In addition, ordinary and administrative courts are involved in this initiated dialogue. The cooperation between these three actors – Constitutional Court, legislator and other courts – will provide the excluded petitioner what (s)he is looking for, namely the application of a similar provision to his or her situation.

Researcher(s)

• Promoter: Popelier Patricia
• Fellow: Verstraelen Sarah

Research team(s)

• Government and Law

Project type(s)

• Research Project