IMPORTANCE OF DISSENTING AND CONCURRING OPINIONS (SEPARATE OPINIONS) IN THE DEVELOPMENT OF CONSTITUTIONAL AND JUDICIAL REVIEW WITH SPECIAL REFERENCE TO SLOVENIAN PRACTICE
Abstract
There is an essential difference between the decisions issued by constitutional courts in Europe and those of the Anglo-American type. The former are issued “impersonally” by the court as a whole, whereas in the latter, individual judges make their personal contributions. In the first case, the decision itself does not show whether it was adopted unanimously or by a majority of votes. Moreover, it is absolutely unclear in any decision the way an individual judge actually voted. In the second case, however, it is not only evident when a majority or unanimous decision was adopted and how individual judges voted, and the judges who do not agree with the majority add their interpretation of the decision in either:
• a concurring opinion when a judge agrees with the ruling but differs as to its reasoning, or • a dissenting opinion when a judge objects to the ruling itself.
At first, the dissenting/concurring opinion was recognised only in the United States, as well as in other Common Law- or American-based countries of the British Commonwealth, Central and South America, Scandinavia and Japan. After many theoretical and political objections, the dissenting/concurring opinion became gradually accepted in countries with Continental (European) legal systems. Although individual European constitutional/judicial review systems departed from the decision-making mode characteristic of the Austrian style, they remained half similar to an American type of decision-making that introduced dissenting/concurring opinion into Constitutional Court decisions (especially in constitutional/judicial review systems introduced by new democracies).
As far as publication is concerned, a distinction may be made between the two types of dissenting/concurring opinions:
• open, published together with the respective decision;
• anonymous, only added in writing to the internal part of the case.
Some constitutional judicial review systems do not accept dissenting/concurring opinions, but keep the voting results secret, without publishing either the voting results or the names of the judges. The dissenting/concurring opinion is known above all in Croatia, Germany, Greece, Hungary, Portugal, Slovenia, Chile, Spain, Georgia, as well as in Argentina, Canada, Norway, Macedonia, Montenegro, Serbia, Bosnia and Herzegovina, Poland, Estonia, Romania, Moldova, Bulgaria, Azerbaijan, Turkey, Ukraine, and Armenia, as well as at the Inter-American Court. In Portugal, however, the publication of votes with names is a matter of judicial tradition as the decisions issued by the Constitutional Court also strictly include names. On the other hand, much attention was aroused by the frequent occurrence of the dissenting/concurring opinion in Spain, where this practice appeared in both forms (dissenting opinion, concurring opinion). The dissenting/concurring opinion is, however, not recognised by the Court of Justice of the European Community in Luxembourg, but was recognised by the European Commission13 and is recognised by the European Court of Human Rights in Strasbourg.
