Guarantors’ Panel on the constitutionality of rules

 

 

Established with Constitutional Revising Law no. 36 of 26 February 2002 - with particular reference to Article 7 of this Law, which has amended Article 16 of the “Declaration on the Citizens’ Rights and Fundamental Principles of San Marino Constitutional Order” - the Guarantors’ Panel on the Constitutionality of Rules is the “youngest” institutional body of San Marino constitutional order. The above-mentioned Article has therefore assigned a jurisdictional character to constitutionality review, which was previously entrusted to the Great and General Council according to Article 16, second paragraph of the Declaration on the Citizens’ Rights. Throughout the years, this solution had indeed presented several limits. The fact that the legislative body was responsible for the constitutionality review was justified, on the one hand, by the fact that the assessments and judgements involved were of a strictly political nature. However, on the other hand, this did not ensure the protection of individual rights since the Great and General Council was the same body that had approved the rule, which was supposed to be in contrast with the constitutional provisions. The fact that all political forces started to support a system of individual guarantees was at the basis of the decision, in 2002, to transfer this important function to a third body.
Constitutional Law no. 67 of 27 May 2003 governs the responsibilities of this Panel, while Qualified Law no. 55 of 25 April 2003 disciplines its organisation, incompatibilities, operation, appeal forms and procedures and the effects of its decisions. Through its own Rules of Procedure (Rules of Procedure of the Guarantors’ Panel no. 1 of 24 March 2004), adopted according to Article 38 of Qualified Law no. 55 of 25 April 2003, the Panel regulated in detail its own functions and the procedures of appeals brought before this body.
The Panel, the functions of which are similar to those of a Constitutional Court, is composed of three effective members (one performing the function of President) and three substitute members. All members are elected by a two-thirds majority of the Great and General Council’s members from among university professors of legal subjects, magistrates and law graduates with at least twenty years of experience in the field of law. The San Marino citizenship does not preclude a person from being elected.
At least one third of the Panel’s members are renewed every two years following the designation, by drawing lots, of two of its members, one effective and one substitute, from among those having served at least for four years during the first mandate. The drawing of lots takes place within the Bureau in the presence of the members of the Panel themselves.
However, the members of the Panel cannot serve for more than two consecutive mandates. Subsequently, they can be re-elected once four years have elapsed since the end of the last mandate. The substitute members may be elected as effective members and the other way round. In this case, the respective periods are aggregated.
After the first mandate, which lasts 4 years, one third of the Panel’s members are renewed every two years. The Guarantors’ Panel appoints its President for a two-year term, on the basis of the rotating principle, from among its effective members.
As already pointed out, the functions of the Guarantors’ Panel are similar to those of a Constitutional Court and, more precisely, it shall:
- verify the conformity of laws, of regulations having force of law, as well as of customary rules having force of law, with the fundamental principles of the Declaration on the Citizens’ Rights or mentioned in it, upon direct request of at least twenty members of the Great and General Council, of the Congress of State, of five Township Councils, of a number of citizens making up at least 1.5% of the electorate and, with reference to proceedings pending before the Republic’s courts, upon request of judges or the parties involved;
- decide on the acceptability of referenda proposals;
- decide in case of conflicts between constitutional bodies;
- act as “Regency Syndicate”.
Besides the “constitutional” functions, with the transitional rule of the Declaration on the Citizens’ Rights introduced by Article 9 of the Constitutional Revising Law no. 36/2002, the Guarantors’ Panel composed of a single member has been entrusted with jurisdictional functions once performed by the Council of the Twelve and the Great and General Council. In particular, these functions include: decisions on disputes among jurisdictions and on the abstention and objection of magistrates; decisions, upon request of the parties involved, in case of difference between first and second degree judgements, both civil and administrative, and; decisions on appeals for the review of criminal judgements and on querela nullitatis and restitutio in integrum extraordinary remedies against final civil judgements. With the approval of the Judicial System (Constitutional Law no. 144/2003 and Qualified Law no 145/2003), the majority of these functions has been assigned to ad hoc Judges - that is to say to the Highest Judge of Appeal in Criminal Matters, the Highest Judge of Appeal in Civil and Administrative Matters and the Judge of Extraordinary Remedies in Criminal Matters. The Panel is still responsible for querela nullitatis and restitutio in integrum remedies since the Judge of Extraordinary Remedies in Civil Matters has not been appointed yet.
Moreover, according to Constitutional Law no. 144/2003, the Guarantors’ Panel is responsible for deciding on the abstention and rejection of the Judges of Extraordinary Remedies and of Judges for Civil Liability Actions (verifying the civil liability of magistrates) (Article 5), as well as for reviewing the magistrates (Articles 7 and 8).
 

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